What is the test for establishing that a search and seizure motion at trial is not a pretrial motion?

California, United States of America

The following excerpt is from Gershenhorn v. Superior Court, Los Angeles County, 227 Cal.App.2d 361, 38 Cal.Rptr. 576 (Cal. App. 1964):

Even if the matter were not thus concluded in the instant cause, we would adhere to the statement just quoted. The existence of such a motion is plainly recognized in People v. Mayen (1922) 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383; and in People v. Wren (1922) 59 Cal.App. 116, 210 P. 60. There is nothing to the contrary in People v. Berger (1955) 44 Cal.2d 459, 282 P.2d 509, which, given its widest interpretation, held only that the illegality of a search and seizure may be raised for the first time at the trial and need not be the subject of a pretrial motion; the case did not deny the existence of the pretrial procedure, if desired.

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