How specific must a defendant make in their application for a search of a container?

As a threshold matter, we address the Attorney General's assertion that defendant forfeited his challenge to the container search by not making an adequately specific argument in the trial court. Generally speaking, out of fairness to the trial court and the opposing party, a litigant may not raise a new theory on appeal unless it involves the application of law to undisputed facts. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) The issue is more complicated in the context of a Penal Code section 1538.5 motion involving a warrantless search because, although the defendant is the moving party, it is the prosecution who has the burden of presenting evidence to justify the search. That procedural structure governs how specific the arguments must be in the trial court to avoid forfeiture of a suppression theory on appeal.