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Buzz Vieau
2648 Michelle Court
Napa CA 94558
707 287 6228
Fax: 707 265 6603
This Motion is on the net at www.lawyerdude.s5.com/5790.html
The story of how Buzz won this case is at http://www.lawyerdude.s5.com/buzz.html
Superior Court of California, 1111 3rd Street, Napa CA 95559
Master Calender Court of Judge Bennet
http://www.napa.courts.ca.gov/ 707-299-1170 Chambers Court Admin: 707-299-1110
Criminal/ traffic fax 707 253-4673
County of Napa, Monique Langhorn, DDA, Gary Leiberstein, elected prosecutor, 931 Parkway Mall Napa CA 94559 707 253 4211, Fax: 707 253 4041 dba People of California
v
Buzz Owen Vieau, sui juris, incorrectly sued as BUZZ OWEN VIEAU.
Case Number CR 112, 221
Prisoner Identification Number 1991 00 305-02
Document #5790
Motion to suppress evidence pursuant to PC 1538.5 et seq.
2nd Substantive Defense Document in this case.
Proposed schedule of Motions
Memorandum of Authorities
Proof of service.
Three Exhibits.
Reminder of concurrent Motions and Pleadings.
5681 Demurrer. Should be heard after motion to strike.
5784 Surrebuttal to their response.
5785 Motion to strike the complaint as the product of perjury. Wed J4
5786 Motion to strike/ Amend the Officer’s checked box. June 4
5787 Motion to contempt of court re perjury by Helfrich. J4
5788 Motion for contempt of court for perjury by prosecutor. J11
5789 Motion to continue demurrer pending resolution of motion to strike.
5790 Motion to suppress evidence. Not written yet. J18
5791 995 Motion. Not written yet. July 16
5792 Motion to amend cease writing name in all caps.
5793 Motion to strike prisoner identification number from pleadings.
5794 Hurtado motion.
5795 Demand for pre-arraignment probable cause hearing.
Proposed venue for the hearing on this motion:
Date: Wed May 21, 2003.
Time: 8:30 a.m.
Dept: E
Notice of Motion to Suppress Evidence pursuant to PC 1538.5.
Prosecutor Langhorn, please take note that at the venue listed above, I will ask the court to suppress all evidence in this case as the fruit of the forbidden tree pursuant to section 1538.5 et seq of the penal code. Of course you bear the burden of proof. T. Helfrich is the sole officer. He will tell you I was not driving. And you will see that there was no “more likely than not” evidence that I had previously been driving under the influence.__________________ - Buzz Vieau. Thursday, Thursday, May 1, 2003
Table of Contents:
Defendant’s Proposed Schedule of Motions
Demand for Suppression of Evidence
Tables of Authorities Cited herein:
Constitutional Provision cited herein
Helfrich could not possibly have had probable cause to believe I was driving at all
There was no driving crime or any crime of any sort
Defendant’s Proposed Schedule of Motions
5681 Demurrer. Should be heard after motion to strike.
5784 Surrebuttal to their
5785 Motion to strike the complaint as the product of perjury. Wed J4
5786 Motion to strike/ Amend the Officer’s checked box. June 4
5787 Motion to contempt of court re perjury by Helfrich. J4
5788 Motion for contempt of court for perjury by prosecutor. J11
5789 Motion to continue demurrer pending resolution of motion to strike.
5790 Wed May 21, 2003. Motion to suppress evidence. Not written yet.
5791 995 Motion. Not written yet. July 16
5792 Motion to amend cease writing name in all caps.
5793 Motion to strike prisoner identification number from pleadings.
5794 Hurtado motion.
5795 Demand for pre-arraignment probable cause hearing.
Demand for Suppression of Evidence
I demand that all the evidence in this case be suppressed pursuant to Weeks v U.S. and its progeny as codified in Penal Code section 1538.5 et seq. The full text of PC 1538.5 is appended hereto in Appendix #1. Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915 B 834, declared that an illegal search and seizure barred the use of such evidence in a criminal prosecution. The suppression sanction is imposed in order to discourage abuses of power by law enforcement officials in conducting searches and seizures.
T. Helfrich had no lawful basis for arresting me or testing me.
I was sleeping - not driving. The Mercer opinion and others take the sensible approach that the legislature said “driving”. I was not driving in my sleep. I was parked and sleeping.
Demand for specific ruling regarding my demand that pursuant to the 4th amendment the standard for 40300.5 must Probable Cause, which is more-likely-than-not - rather than “reasonable cause” as mistakenly stated I the statute.
VC 40300.5 as written violates the 4th amendment by statutorily authorizing a violation of the 4th amendment.
Tables of Authorities Cited herein:
Henslee v. Department of Motor Vehicles 1
Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 , 280 Cal.Rptr. 745; 809 P.2d 404
1
Music v. Department of Motor Vehicles(1990) 221 Cal.App.3d 841 , 270 Cal.Rptr. 692 Where, as here, the officer does not personally observe the driving element of the offense, a warrantless arrest for drunk driving is invalid. 1 2
Padilla v. Meese (1986)184 Cal.App.3d 1022. Where, as here, the officer does not personally observe the driving element of the
offense, a warrantless arrest for drunk driving is invalid.
1
Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915 B 834, declared that an illegal search and seizure barred the use of such evidence in a criminal prosecution. The suppression sanction is imposed in order to discourage abuses of power by law enforcement officials in conducting searches and seizures. 1
California Vehicle Code section 40300.5. In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists: (a) The person is involved in a traffic accident. (b) The person is observed in or about a vehicle that is obstructing a roadway. (c) The person will not be apprehended unless immediately arrested. (d) The person may cause injury to himself or herself or damage property unless immediately arrested. (e) The person may destroy or conceal evidence of the crime unless immediately arrested. 1
Penal Code 1538.5 - printed in its entirety in a footnote in the body of this motion. 1
Penal code 836 Officer could not have arrested Buzz pursuant to this statute because no crime was committed in the presence of the office - or anybody - because there was no crime. 1
Vehicle Code 23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. 1
Constitutional Provision cited herein
4th amendment 1
There was no legal basis for the arrest and therefore all evidence stemming from the arrest must be suppressed.
VC 40300.5 requires 2 elements to justify arrest here: (1) PC for DUI and (20The person may cause injury to himself or herself or damage property unless immediately arrested
Although the prosecution might argue Helfrich arrested me for my own safety, I did not need his protection. I was fully alert. As his report states, I protested and I told him that my office was right nearby. Regardless, the statute sets a higher bar, to wit:
40300.5. In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists: (a) The person is involved in a traffic accident. (b) The person is observed in or about a vehicle that is obstructing a roadway. (c) The person will not be apprehended unless immediately arrested. (d) The person may cause injury to himself or herself or damage property unless immediately arrested. (e) The person may destroy or conceal evidence of the crime unless immediately arrested.
Section 836 of the penal code says:
836. (a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur: (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer's presence. (2) The person arrested has committed a felony, although not in the officer's presence. (3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed. (b) Any time a peace officer is called out on a domestic violence call, it shall be mandatory that the officer make a good faith effort to inform the victim of his or her right to make a citizen's arrest. This information shall include advising the victim how to safely execute the arrest. (c) (1) When a peace officer is responding to a call alleging a violation of a domestic violence protective or restraining order issued under the Family Code, Section 527.6 of the Code of Civil Procedure, Section 213.5 of the Welfare and Institutions Code, Section 136.2 of this code, or paragraph (2) of subdivision (a) of Section 1203.097 of this code, or of a domestic violence protective or restraining order issued by the court of another state, tribe, or territory and the peace officer has probable cause to believe that the person against whom the order is issued has notice of the order and has committed an act in violation of the order, the officer shall, consistent with subdivision (b) of Section 13701, make a lawful arrest of the person without a warrant and take that person into custody whether or not the violation occurred in the presence of the arresting officer. The officer shall, as soon as
possible after the arrest, confirm with the appropriate authorities or the Domestic Violence Protection Order Registry maintained pursuant to Section 6380 of the Family Code that a true copy of the protective order has been registered, unless the victim provides the officer with a copy of the protective order. (2) The person against whom a protective order has been issued shall be deemed to have notice of the order if the victim presents to the officer proof of service of the order, the officer confirms with the appropriate authorities that a true copy of the proof of service is on file, or the person against whom the protective order was issued was present at the protective order hearing or was informed by a peace officer of the contents of the protective order. (3) In situations where mutual protective orders have been issued under Division 10 (commencing with Section 6200) of the Family Code, liability for arrest under this subdivision applies only to those persons who are reasonably believed to have been the primary aggressor. In those situations, prior to making an arrest under this subdivision, the peace officer shall make reasonable efforts to identify, and may arrest, the primary aggressor involved in the incident. The primary aggressor is the person determined to be the most significant, rather than the first, aggressor. In identifying the primary aggressor, an officer shall consider (A) the intent of the law to protect victims of domestic violence from continuing abuse, (B) the threats creating fear of physical injury, (C) the history of domestic violence between the persons involved, and (D) whether either person involved acted in self-defense. (d) Notwithstanding paragraph (1) of subdivision (a), if a suspect commits an assault or battery upon a current or former spouse, fiancé, fiancee, a current or former cohabitant as defined in Section 6209 of the Family Code, a person with whom the suspect currently is having or has previously had an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243, a person with whom the suspect has parented a child, or is presumed to have parented a child pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code), a child of the suspect, a child whose parentage by the suspect is the subject of an action under the Uniform Parentage Act, a child of a person in one of the above categories, any other person related to the suspect by consanguinity or affinity within the second degree, or any person who is 65 years of age or older and who is related to the suspect by blood or legal guardianship a peace officer may arrest the suspect without a warrant where both of the following circumstances apply: (1) The peace officer has probable cause to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed. (2) The peace officer makes the arrest as soon as probable cause arises to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed. (e) In addition to the authority to make an arrest without a warrant pursuant to paragraphs (1) and (3) of subdivision (a), a peace officer may, without a warrant, arrest a person for a violation of Section 12025 when all of the following apply: (1) The officer has reasonable cause to believe that the person to be arrested has committed the violation of Section 12025. (2) The violation of Section 12025 occurred within an airport, as defined in Section 21013 of the Public Utilities Code, in an area to which access is controlled by the inspection of persons and property. (3) The peace officer makes the arrest as soon as reasonable cause arises to believe that the person to be arrested has committed the violation of Section 12025.
Helfrich could not possibly have had probable cause to believe I was driving at all
Despite the wording of the statute the test is Probable Cause - not Reasonable Cause. Probable cause means “more likely than not” and its basis is the 4th amendment.
It was impossible for Helfrich to have probable or even reasonable cause to believe that I had been driving under the influence. The element of driving is missing. This is not a matter of judgment or estimation. There was no evidence of driving. This is NOT a situation where I was stopped in the median of a road to which I had presumably driven. It was the parking space outside my office.
There is not any possible more-likely-than-not inference that I was driving from the evidence. The jury instruction hold that a fact that could infer either guilt or innocence must be judged in favor of the defendant. The logic behind that jury instruction is the 4th amendment standard of more likely than not - and that standard applies to probable cause - and that probable cause to test me and arrest me was lacking - and the evidence must now be suppressed for that reason.
There was no container in the vehicle. The vehicle was safely and legally parked. There was no accident. There was no hint of any accident. My reason for being there was plausible. My office was there. I had come to my office from home on a Saturday night to look at some contracts, invoices. etc, that I needed to get out.. Then my plan was to go out to dinner. A couple of clients had brought me a some wine as a gift During Christmas, and that is why the wine was there. I drank a glass of wine, thinking that I was going to dinner and them go home. Well, then, the 2nd glass, 3rd. I fell asleep, slumped over the desk. I woke up around 11:00 pm and it was cold and I had no place to sleep or even recline. I have no sofa in my office. The heat in my office is controlled by a thermostat in another office occupied by another tenant. Apparently they had split the office into two once. They turn the heat off on the weekends. This was in cold early January. The office had cooled down for a full 24 hours. The wine made me tired. My office had no sofa or other place to recline. My office was cold. This was my last week in that office. I was cold in my office I chose NOT to drive home - even though my home was only a mile away. I chose not to drive. I went out to the car. I reclined the seat in my nice car. I slept and stayed warm. I was indeed reclined and sleeping comfortably when T. Helfrich rousted me. I was in no danger and I was no danger to others.
There was no driving crime or any crime of any sort
Even if the prosecution proves everything that the officer said, there is no crime. Let’s take a look at the statute:
Vehicle Code 23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.
The 4 corners of the complaint demonstrate that an element of the crime is missing. I was not driving. Sleeping is not driving.
Several courts have held that observed volitional movement of a vehicle is required before a person's driving privilege may be suspended or revoked for refusal to submit to chemical testing. (E.g., Music v. Department of Motor Vehicles (1990) 221 Cal.App.3d 841 [270 Cal.Rptr. 692] [Music].) By contrast, the present Court of Appeal, claiming support for its view in Henslee v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445 [214 Cal.Rptr. 249] [Henslee], holds that observed movement of a vehicle is not required as a condition of suspension or revocation of driving privileges for failure to submit to testing. We conclude the Music approach correctly interprets the statutes, and accordingly we reverse the decision of the Court of Appeal. -Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 , 280 Cal.Rptr. 745; 809 P.2d 404
Sleeping is not driving. That is my point. Also, there is no evidence that I had previously been driving while under the influence. The officer relates in his typed narrative in the exhibit that I pointed out my office to him. I was parked at my office. I had been drinking at my office. I only came out to my car because the heat was not working at my office.
“Where, as here, the officer does not personally observe the driving element of the offense, a warrantless arrest for drunk driving is invalid.” - Padilla v. Meese (1986)184 Cal.App.3d 1022, and Music v. Department of Motor Vehicles (1990) 221 Cal.App.3d 841 , 270 Cal.Rptr. 692
The officer says in his report that I was sleeping in a reclined position. This was the situation in the reported case:
“Officer, was the defendant in control of the vehicle? No. What was he doing. The defendant was sleeping in a reclined position in the drivers seat. “
Officer Helfrich says that I asked many times to show him my office. I wanted to prove that I was not driving drunk. I merely came out to my truck to sleep. It reminds me of these words from the Music case:
"[Counsel]: Did Mr. Music ask you any questions as to why you were making him do this when in fact he was not driving the vehicle but sleeping? Officer O’Connor: As I recall he did. He was concerned with what and I told him that his vehicle was in the road, his vehicle was running.” - Music v Dept of Motor Vehicles(1990) 221 Cal.App.3d 841 , 270 Cal.Rptr. 692
I, (print name) ____________________, declare the following under penalty of perjury: On Thursday, May 1, 2003I personally handed this document #5790 to the receptionist at the prosecutor’s office at the address shown in the caption. Thereafter I filed it with the clerk of the court.
Signed ___________________ Thursday, May 1, 2003. Received word in email at 1 pm that Buzz served and filed this.
Please note that no traffic ticket was issued in this case.
Exhibit 1: Sworn complaint by arresting officer Helfrich (phone number 707 253 4451)that the car was “parked”. No traffic offense is listed; those boxes remain unchecked. No ticket was issued. Defendant was “reclined back” and “sleeping”
Exhibit 2: NAPA police department DUI interview. In the box labeled “Where did you start driving from” the officer has written n/a meaning “not applicable” because defendant was not driving. Similarly 2 other driving questions are marked n/a and one is ignored.
Exhibit 3: Page 1 of typed narrative of Arresting Officer. “The Nissan was parked. . . engine was running. . . it appeared the person inside. . . . was sleeping. . .asked how long he had been parked. . . .he told me for a while. . ..”
Appendix #1:
1538.5. (a) (1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable. (B) The search or seizure with a warrant was unreasonable because any of the following apply: (I) The warrant is insufficient on its face. (ii) The property or evidence obtained is not that described in the warrant. (iii) There was not probable cause for the issuance of the warrant. (iv) The method of execution of the warrant violated federal or state constitutional standards. (v) There was any other violation of federal or state constitutional standards. (2) A motion pursuant to paragraph (1) shall be made in writing and accompanied by a memorandum of points and authorities and proof of service. The memorandum shall list the specific items of property or evidence sought to be returned or suppressed and shall set forth the factual basis and the legal authorities that demonstrate why the motion should be granted. (b) When consistent with the procedures set forth in this section and subject to the provisions of Sections 170 to 170.6, inclusive, of the Code of Civil Procedure, the motion should first be heard by the magistrate who issued the search warrant if there is a warrant. (c) (1) Whenever a search or seizure motion is made in the superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion. (2) While a witness is under examination during a hearing pursuant to a search or seizure motion, the judge or magistrate shall, upon motion of either party, do any of the following: (A) Exclude all potential and actual witnesses who have not been examined. (B) Order the witnesses not to converse with each other until they are all examined. (C) Order, where feasible, that the witnesses be kept separated from each other until they are all examined. (D) Hold a hearing, on the record, to determine if the person sought to be excluded is, in fact, a person excludable under this section. (3) Either party may challenge the exclusion of any person under paragraph (2). (4) Paragraph (2) does not apply to the investigating officer or the investigator for the defendant, nor does it apply to officers having custody of persons brought before the court. (d) If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movant at any trial or other hearing unless further proceedings authorized by this section, Section 871.5, 1238, or 1466 are utilized by the people. (e) If a search or seizure motion is granted at a trial, the property shall be returned upon order of the court unless it is otherwise subject to lawful detention. If the motion is granted at a special hearing, the property shall be returned upon order of the court only if, after the conclusion of any further proceedings authorized by this section, Section 1238 or 1466, the property is not subject to lawful detention or if the time for initiating the proceedings has expired, whichever occurs last. If the motion is granted at a preliminary hearing, the property shall be returned upon order of the court after 10 days unless the property is otherwise subject to lawful detention or unless, within that time, further proceedings authorized by this section, Section 871.5 or 1238 are utilized; if they are utilized, the property shall be returned only if, after the conclusion of the proceedings, the property is no longer subject to lawful detention. (f) (1) If the property or evidence relates to a felony offense initiated by a complaint, the motion shall be made only upon filing of an information, except that the defendant may make the motion at the preliminary hearing, but the motion shall be restricted to evidence sought to be introduced by the people at the preliminary hearing. (2) The motion may be made at the preliminary examination only if, at least five court days before the date set for the preliminary examination, the defendant has filed and personally served on the people a written motion accompanied by a memorandum of points and authorities as required by paragraph (2) of subdivision (a). At the preliminary examination, the magistrate may grant the defendant a continuance for the purpose of filing the motion and serving the motion upon the people, at least five court days before resumption of the examination, upon a showing that the defendant or his or her attorney of record was not aware of the evidence or was not aware of the grounds for suppression before the preliminary examination. (3) Any written response by the people to the motion described in paragraph (2) shall be filed with the court and personally served on the defendant or his or her attorney of record at least two court days prior to the hearing at which the motion is to be made. (g) If the property or evidence relates to a misdemeanor complaint, the motion shall be made before trial and heard prior to trial at a special hearing relating to the validity of the search or seizure. If the property or evidence relates to a misdemeanor filed together with a felony, the procedure provided for a felony in this section and Sections 1238 and 1539 shall be applicable. (h) If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial. (I) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time. Any written response by the people to the motion shall be filed with the court and personally served on the defendant or his or her attorney of record at least two court days prior to the hearing, unless the defendant is willing to waive a portion of this time. If the offense was initiated by indictment or if the offense was initiated by complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing. If the people object to the presentation of evidence at the special hearing on the grounds that the evidence could reasonably have been presented at the preliminary hearing, the defendant shall be entitled to an in camera hearing to determine that issue. The court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the court as to evidence or property not affected by evidence presented at the special hearing. After the special hearing is held, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing. (j) If the property or evidence relates to a felony offense initiated by complaint and the defendant's motion for the return of the property or suppression of the evidence at the preliminary hearing is granted, and if the defendant is not held to answer at the preliminary hearing, the people may file a new complaint or seek an indictment after the preliminary hearing, and the ruling at the prior hearing shall not be binding in any subsequent proceeding, except as limited by subdivision (p). In the alternative, the people may move to reinstate the complaint, or those parts of the complaint for which the defendant was not held to answer, pursuant to Section 871.5. 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 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, and the defendant shall be entitled, as a matter of right, to a continuance of the special hearing for a period of time up to 30 days. The people may not request relitigation of the motion at a special hearing if the defendant's motion has been granted twice. If the defendant's motion is granted at a special hearing, the people, if they have additional evidence relating to the motion and not presented at the special hearing, shall have the right to show good cause at the trial why the evidence was not presented at the special hearing and why the prior ruling at the special hearing should not be binding, or the people may seek appellate review as provided in subdivision (o), unless the court, prior to the time the review is sought, has dismissed the case pursuant to Section 1385. If the case has been dismissed pursuant to Section 1385, or if the people dismiss the case on their own motion after the special hearing, the people may file a new complaint or seek an indictment after the special hearing, and the ruling at the special hearing shall not be binding in any subsequent proceeding, except as limited by subdivision (p). If the property or evidence seized relates solely to a misdemeanor complaint, and the defendant made a motion for the return of property or the suppression of evidence in the superior court prior to trial, both the people and defendant shall have the right to appeal any decision of that court relating to that motion to the appellate division, in accordance with the California Rules of Court provisions governing appeals to the appellate division in criminal cases. If the people prosecute review by appeal or writ to decision, or any review thereof, in a felony or misdemeanor case, it shall be binding upon them. (k) If the defendant's motion to return property or suppress evidence is granted and the case is dismissed pursuant to Section 1385, or the people appeal in a misdemeanor case pursuant to subdivision (j), the defendant shall be released pursuant to Section 1318 if he or she is in custody and not returned to custody unless the proceedings are resumed in the trial court and he or she is lawfully ordered by the court to be returned to custody. If the defendant's motion to return property or suppress evidence is granted and the people file a petition for writ of mandate or prohibition pursuant to subdivision (o) or a notice of intention to file a petition, the defendant shall be released pursuant to Section 1318, unless (1) he or she is charged with a capital offense in a case where the proof is evident and the presumption great, or (2) he or she is charged with a noncapital offense defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1, and the court orders that the defendant be discharged from actual custody upon bail. (l) If the defendant's motion to return property or suppress evidence is granted, the trial of a criminal case shall be stayed to a specified date pending the termination in the appellate courts of this state of the proceedings provided for in this section, Section 871.5, 1238, or 1466 and, except upon stipulation of the parties, pending the time for the initiation of these proceedings. Upon the termination of these proceedings, the defendant shall be brought to trial as provided by Section 1382, and, subject to the provisions of Section 1382, whenever the people have sought and been denied appellate review pursuant to subdivision (o), the defendant shall be entitled to have the action dismissed if he or she is not brought to trial within 30 days of the date of the order that is the last denial of the petition. Nothing contained in this subdivision shall prohibit a court, at the same time as it rules upon the search and seizure motion, from dismissing a case pursuant to Section 1385 when the dismissal is upon the court's own motion and is based upon an order at the special hearing granting the defendant's motion to return property or suppress evidence. In a misdemeanor case, the defendant shall be entitled to a continuance of up to 30 days if he or she intends to file a motion to return property or suppress evidence and needs this time to prepare for the special hearing on the motion. In case of an appeal by the defendant in a misdemeanor case from the denial of the motion, he or she shall be entitled to bail as a matter of right, and, in the discretion of the trial or appellate court, may be released on his or her own recognizance pursuant to Section 1318. In the case of an appeal by the defendant in a misdemeanor case from the denial of the motion, the trial court may, in its discretion, order or deny a stay of further proceedings pending disposition of the appeal. (m) The proceedings provided for in this section, and Sections 871.5, 995, 1238, and 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her. A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence. (n) This section establishes only the procedure for suppression of evidence and return of property, and does not establish or alter any substantive ground for suppression of evidence or return of property. Nothing contained in this section shall prohibit a person from making a motion, otherwise permitted by law, to return property, brought on the ground that the property obtained is protected by the free speech and press provisions of the United States and California Constitutions. Nothing in this section shall be construed as altering (1) the law of standing to raise the issue of an unreasonable search or seizure; (2) the law relating to the status of the person conducting the search or seizure; (3) the law relating to the burden of proof regarding the search or seizure; (4) the law relating to the reasonableness of a search or seizure regardless of any warrant that may have been utilized; or (5) the procedure and law relating to a motion made pursuant to Section 871.5 or 995, or the procedures that may be initiated after the granting or denial of a motion. (o) Within 30 days after a defendant's motion is granted at a special hearing in a felony case, the people may file a petition for writ of mandate or prohibition in the court of appeal, seeking appellate review of the ruling regarding the search or seizure motion. If the trial of a criminal case is set for a date that is less than 30 days from the granting of a defendant's motion at a special hearing in a felony case, the people, if they have not filed a petition and wish to preserve their right to file a petition, shall file in the superior court on or before the trial date or within 10 days after the special hearing, whichever occurs last, a notice of intention to file a petition and shall serve a copy of the notice upon the defendant. (p) If a defendant's motion to return property or suppress evidence in a felony matter has been granted twice, the people may not file a new complaint or seek an indictment in order to relitigate the motion or relitigate the matter de novo at a special hearing as otherwise provided by subdivision (j), unless the people discover additional evidence relating to the motion that was not reasonably discoverable at the time of the second suppression hearing. Relitigation of the motion shall be heard by the same judge who granted the motion at the first hearing if the judge is available. (q) The amendments to this section enacted in the 1997 portion of the 1997-98 Regular Session of the Legislature shall apply to all criminal proceedings conducted on or after January 1, 1998.
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