Does section 1538 of the California Penal Code allow a defendant to move for the return of property or to suppress evidence obtained as a result of unlawful search or seizure?

California, United States of America


The following excerpt is from People v. Freeman, 157 Cal.Rptr. 454, 95 Cal.App.3d 917 (Cal. App. 1979):

[95 Cal.App.3d 922] Penal Code section 1538.5, subdivision (a), authorizes a defendant to move for the return of property or to suppress evidence obtained as a result of unlawful search or seizure. Subdivision (f) states: "If the property or evidence relates to a felony offense initiated by a complaint, the motion may be made in the municipal or justice court at the preliminary hearing." Appellant cites that portion of subdivision (j) which states: "If the property or evidence relates to a felony offense initiated by complaint and the defendant's motion for the return or suppression of the property or evidence at the preliminary hearing is granted, and if the defendant is held to answer at the preliminary hearing, the ruling at the preliminary hearing shall be binding upon the people unless, upon notice to the defendant and the court in which the preliminary hearing was held and upon the filing of an information, the people within 15 days after the preliminary hearing request in the superior court a special hearing, in which case the validity of the search or seizure shall be relitigated de novo on the basis of the evidence presented at the special hearing . . . ." (See Eiseman v. Superior Court, 21 Cal.App.3d 342, 348, 98 Cal.Rptr. 342.)

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