Can a defense lawyer cross-examine the search and seizure issue at the preliminary hearing without making a motion to suppress evidence?

California, United States of America


The following excerpt is from People v. Barnes, 219 Cal.App.3d 1468, 269 Cal.Rptr. 44 (Cal. App. 1990):

"To circumvent the restrictive evidentiary effect of amended section 1538.5, subdivision (i) in the superior court, the practice has become prevalent among defense lawyers to attempt to fully explore, even litigate, the search and seizure issue at the preliminary hearing without making a motion to suppress evidence. Indeed, if the magistrate permits it, such cross-examination results in the full exploration of the search and seizure issue at the preliminary hearing without a section 1538.5 motion having been made, and allows a second full evidentiary hearing on a subsequent motion to suppress in superior court without being bound by the evidentiary restrictions of subdivision (i). Such practice undermines the purpose and effectiveness of amended subdivision (i), and allows the repeat testimony and relitigation of issues the amendment was designed to prevent [citation]." (People v. Williams, supra, 213 Cal.App.3d at pp. 1190-1191, 262 Cal.Rptr. 303.)

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