Can a defendant make a suppression motion at a preliminary hearing without providing written or oral notice of motion?

California, United States of America


The following excerpt is from State v. Britton, 111 Cal.Rptr.2d 199, 91 Cal.App.4th 1112 (Cal. App. 2001):

Prior to the 1997 statutory amendment that added subdivisions (f)(2) and (f)(3), defendants were permitted to move for suppression at any time during the preliminary hearing without notice. (Cox v. Superior Court (1993) 19 Cal.App.4th 1046, 1050 ["neither written nor oral notice of motion should be required for suppression motions made at preliminary hearings"].) Defendant argues these subdivisions bestow an unconstitutional advantage on the prosecution because while they require defendants seeking to suppress evidence to move in writing and provide advance notice, they permit the prosecution to oppose the motion without the benefit of a written opposition in advance of the hearing. Under such circumstances, defendant argues, the defense must speculate about the prosecution's potential justifications for a search or seizure and will unavoidably be less prepared for the hearing than the prosecution. For several reasons, we disagree.

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