TO THE ABOVE-ENTITLED COURT, AND TO THE DISTRICT ATTORNEY OF _ _ _ _
_ _ COUNTY:
PLEASE TAKE NOTICE that, at the time of the Penal Code section 1538.5 hearing
now set for _ _[date]_ _, at _ _[time]_ _, defendant, _ _[name]_ _, will move to suppress
defendant’s statement under Penal Code section 1538.5 because it was a product of an
illegal search.
This motion is based on violation of defendant’s reasonable expectation of privacy, as
guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the United States
Constitution, and on the following particular grounds: _ _[State grounds]_ _.
This motion will be based on the attached supporting memorandum, _ _[the attached
declaration,]_ _ _ _[the transcript of the preliminary hearing (in the court file; the
defendant hereby requests that the court take judicial notice of the contents of this
transcript),]_ _ _ _[a supplemental memorandum of points and authorities, to be filed
after the hearing on this motion,]_ _ all papers filed and records in this action, evidence
presented at the hearing on this motion, and any argument at that hearing.
Date: _ _ _ _ _ _
Respectfully submitted,
__[Signature of attorney]__ _ _[Typed
name]_ _ _ _[Title if in public defender
office]_ _ Attorney for _ _[name of
defendant]_ _
SUPPORTING MEMORANDUM
SUMMARY OF ARGUMENT
_ _[Summarize your argument in a few sentences.]_ _
SUMMARY OF FACTS
_ _[Briefly summarize the facts relative to this motion.]_ _
ARGUMENT
Penal Code section 1538.5 is the proper vehicle for excluding defendant’s statement.
The procedures provided by Penal Code section 1538.5 are the proper way of moving
to suppress statements obtained in violation of the protections of the Fourth and
Fourteenth Amendments to the United States Constitution. (People v Takencareof
(1981) 119 CA3d 492, 496, 174 CR 112, disapproved on other grounds in People v
Towne (2008) 44 C4th 63, 85, 78 CR 3d 530; see also People v Johnson (1969) 70 C2d
541, 545, 75 CR 401, disapproved on other grounds in People v De Vaughn (1977) 18
C3d 889, 899 n8, 135 CR 786.)
DEFENDANT’S STATEMENT WAS THE RESULT OF AN ILLEGAL SEARCH
Statements obtained as the result of an illegal search or seizure must be suppressed
as “‘fruit’ of official illegality.” (Wong Sun v U.S. (1963) 371 US 471, 485, 9 L Ed 2d 441,
454, 83 S Ct 407.) _ _[Describe why the search in your case was illegal and why the
defendant’s statement was a result of that illegal search.]_ _
DEFENDANT’S STATEMENT WAS THE RESULT OF AN ILLEGAL
_ _[DETENTION/ARREST]_ _
Statements obtained as the result of an illegal detention or arrest must be
suppressed. (Taylor v Alabama (1982) 457 US 687, 73 L Ed 2d 314, 102 S Ct 2664;
Dunaway v New York (1979) 442 US 200, 60 L Ed 2d 824, 99 S Ct 2248; Brown v
Illinois (1975) 422 US 590, 45 L Ed 2d 416, 95 S Ct 2254.) _ _[Describe why the
detention or arrest was illegal and why the defendant’s statement was a result of that
illegal detention or arrest.]_ _
DEFENDANT’S STATEMENT WAS OBTAINED BY TELLING DEFENDANT OF
EVIDENCE THAT HAD BEEN ILLEGALLY SEIZED
A statement that is obtained by informing the defendant of evidence obtained in
violation of the Fourth Amendment must be suppressed. (People v Johnson (1969) 70
C2d 541, 75 CR 401, disapproved on other grounds in People v De Vaughn (1977) 18
C3d 889, 899 n8, 135 CR 786.) _ _[Describe what evidence was used to get the
defendant to make a statement, why it should be considered to have been illegally
seized, and why it was what caused the defendant to make a statement.]_ _
THE CAUSAL CONNECTION BETWEEN THE _ _[DESCRIBE THE ILLEGALITY,
E.G., THE ILLEGAL DETENTION]_ _ AND DEFENDANT’S STATEMENT WAS NOT
ATTENUATED BY READING DEFENDANT _ _[HIS/HER]_ _ MIRANDA RIGHTS.
Simply advising a defendant of his or her Miranda rights is not sufficient per se to
vitiate the taint of a Fourth Amendment violation:
In order for the causal chain, between the illegal arrest and the statements made
subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the
Fifth Amendment standard of voluntariness but that it is “sufficiently an act of free will to purge
the primary taint.”
But, the Miranda warnings, alone and per se, cannot always make the act sufficiently a
product of free will to break, for Fourth Amendment purposes, the causal connection between
the illegality and the confession. (Brown v Illinois (1975) 422 US 590, 602, 45 L Ed 2d 416,
426, 95 S Ct 2254; emphasis in original.)
(See also Taylor v Alabama (1982) 457 US 687, 73 L Ed 2d 314, 102 S Ct 2664;
Dunaway v New York (1979) 442 US 200, 60 L Ed 2d 824, 99 S Ct 2248.)
CONCLUSION
Defendant moves to suppress _ _[his/her]_ _ statement as the fruit of _ _[describe
the Fourth Amendment violation]_ _.
Defendant requests leave to file a supplemental memorandum after the hearing on
the motion, because evidence may be adduced at the hearing that will require further
briefing by the parties.
Date: _ _ _ _ _ _
Respectfully submitted,
__[Signature of attorney]__ _ _[Typed
name]_ _ _ _[Title if in public defender
office]_ _ Attorney for _ _[name of
defendant]_ _