P.C. § 1538.5 Motions and Illegal Detentions

P.C. § 148(a)(1) When Perpetrated During an Unlawful Detention

The exclusionary rule does not apply to a new and distinct crime occurring during or immediately after a detention, whether the detention was lawful or not. Therefore, the lawfulness of a suspect’s detention is not relevant at a motion to suppress pursuant to P.C. § 1538.5 when charged only with resisting arrest.

Defendant was arrested and charged with the misdemeanor offense of resisting, obstructing, or delaying a peace officer in the performance of his (or her) duties, pursuant to subdivision (a)(1) of Penal Code § 148.  The underlying facts leading to this charge were not described in the Court’s decision.  Defendant moved pursuant to P.C. § 1538.5 to suppress, arguing that his initial detention was illegal.  The People responded by arguing that defendant was not entitled to such a hearing, submitting that the lawfulness of his detention is irrelevant to the charge of P.C. § 148(a)(1).  The trial court agreed, denying defendant’s motion without a hearing.  However, the Appellate Department of the Superior Court reversed the trial court’s decision.  The Court of Appeal ordered the matter transferred to them.

The Second District Court of Appeal (Div. 6) affirmed the trial court’s decision (thus reversing the Appellate Department of the Superior Court).  Pen. Code § 1538.5(c)(1) provides that: “(w)henever 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.”  (Italics added)  Citing In re Richard G. (2009) 173 Cal.App.4th 1252, the People argued that this is to be interpreted to mean that the exclusionary rule does not apply to a new and distinct crime occurring during or immediately after a detention, whether the detention was lawful or not.  Pursuant to Richard G, even when a person is unlawfully detained, the circumstances of that detention do not excuse defendant’s concurrent or later illegal resistance, as charged pursuant to P.C. § 148(a)(1).  Therefore, whether or not a defendant—charged with physically resisting his detention—was unlawfully detained is irrelevant and therefore not “necessary to determine the motion” to suppress.  And because only relevant evidence is admissible at a 1538.5 motion to suppress (see Evid. Code § 350), the circumstances of defendant’s detention are inadmissible.  Therefore, because the lawfulness of defendant’s detention is irrelevant, no evidentiary hearing as to the lawfulness of defendant’s detention is required.

This rule, however, does not mean that officers don’t have to be concerned with whether or not they unlawfully detain someone.  The officer may still be subject to a federal civil suit pursuant to 42 U.S.C. § 1983, and/or California’s “Bane Act;” Civil Code § 52.1.  Also, as a trial (as opposed suppression motion) issue, illegally detaining someone may negate the necessary element of a P.C. § 148 charge; i.e., that the officer was acting in the “performance of his (or her) duties,” there being no such duty to unlawfully detain someone. (See Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321.)  And, of course, any physical evidence discovered during or as a product of an illegal detention is still going to be subject to suppression.  All this new case here says is that a subject’s resistance to being detained is not excused merely because the detention might have been illegal and therefore is not to be litigated pursuant to a P.C. § 1538.5 motion to suppress when that resistance is the only issue.