Suppression Of Illegally Obtained Evidence Cannot Be Litigated On A Motion To Dismiss Under Section 991

Barajas v. Appellate Division of Superior Court of Los Angeles County, 2019 WL 4894231 (Cal.App. 2 Dist.) (Cal.App. 2 Dist., 2019)

Arraignment on Misdemeanor charge of carrying a dirk or dagger

Eliseo Barajas was arrested and arraigned on a misdemeanor charge of carrying a dirk or dagger. Barajas sought to have the case dismissed for lack of probable cause pursuant to Penal Code section 991.1. Barajas argued that his initial detention was not based on conduct that could give rise to a reasonable suspicion that criminal conduct had occurred. He also argued that the evidence establishing probable cause was illegally obtained and should be excluded from the probable cause determination. And he asked that the misdemeanor complaint be dismissed.

Trail Court excluded the evidence based on illegal detention

Factual Background

A Downey Police Officer saw Barajas standing near a closed business and stopped his car about 15 to 20 feet away from Barajas, shined a spotlight on Barajas, and asked him “something along the lines of, ‘where are you from’?” The police officer began “slowly and casually” approaching Barajas, and walked to a point 6 to 8 feet away from him.The officer asked Barajas if he was on parole or probation; Barajas responded that he was on probation. As Barajas answered, he put his hand in his sweatshirt pocket. The officer instructed Barajas to keep his hands out of his pocket. Barajas volunteered that he “had his blade open,” and the officer instructed Barajas to “have a seat” and keep his hands where he could see them.
The officer instructed Barajas to remove the knife from his sweatshirt and place it away from himself. Shortly thereafter, the officer arrested Barajas.
Barajas did not turn away, walk away, or refuse to speak to the officer.

The trial court found that Barajas was unlawfully detained and excluded all evidence obtained after the detention. The trial court also granted Barajas’s motion to dismiss.

People v. Ward (1986) 188 Cal.App.3d Supp. 11, 235 Cal.Rptr. 287 (Ward) overruled

The Superior Court Appellate Division held that suppression of illegally obtained evidence cannot be litigated on a motion to dismiss under section 991 (overruling People v. Ward (1986) 188 Cal.App.3d Supp. 11, 235 Cal.Rptr. 287 ) In his appeal, Barajas contends that the Fourth Amendment demands a mechanical application of the exclusionary rule at a probable cause hearing under section 991 in the event the magistrate determines evidence was obtained  as a result of an unlawful detention.

The Court of Appeal agreed with the Appellate Division that suppression of illegally obtained evidence cannot be litigated on a motion to dismiss under section 991. The Court denied Barajas’s writ petition.

Ward held that the trial court was “allowed … to determine the lawfulness of the custodial detention of a misdemeanant based upon the reading and consideration of an arrest report attached to the complaint ….”In overruling Ward, the Appellate Division held that the trial court may not determine Fourth Amendment exclusionary rule questions in the context of a section 991 motion.|

Barajas contends that the Appellate Division erred when it concluded that at a hearing on a section 991 motion a misdemeanor defendant may not challenge evidence obtained in a search that violates the Fourth Amendment.

The Fourth Amendment and the Exclusionary Rule

The Court of Appeal noted that the exclusionary rule precludes consideration of reliable, probative evidence, and detracts from the truthfinding process. It allows many who would otherwise be incarcerated to escape the consequences of their actions. United States Supreme Court cases have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule.” (Scott, supra, 524 U.S. at pp. 364-365, 118 S.Ct. 2014, fn. omitted.)

Barajas moved to dismiss under section 991, which provides: “If the defendant is in custody at the time he appears before the magistrate for arraignment and, if the public offense is a misdemeanor to which the defendant has pleaded not guilty, the magistrate, on motion of counsel for the defendant or the defendant, shall determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty thereof.” (§ 991, subd. (a).) Barajas argued in the trial court that evidence obtained in violation of the Fourth Amendment could not be used to establish the probable cause necessary under section 991. He argued that the trial court was obligated to determine whether the evidence the People relied on to establish probable cause was obtained in violation of the Fourth Amendment.

The Court of Appeal explained that under section 991, the magistrate is only required to determine whether the elements of an offense (here, possession of the offending item) are present on “any warrant of arrest with supporting affidavits, and the sworn complaint together with any documents or reports incorporated by reference thereto ….” (§ 991, subd. (c).) The magistrate may not consider issues relating to the legality or origin of evidence.


The Fourth Amendment right to be free of unreasonable search and seizure does not include a corresponding constitutional entitlement to the exclusion of evidence. The exclusionary rule is a federal judicial creation that was later codified in California. Although a defendant must be able to litigate suppression of evidence obtained in violation of the Fourth Amendment, it is not constitutionally required for that to be done at a section 991 hearing. The California codification of the exclusionary rule—Section 1538.5- provides the means for in-custody misdemeanor defendants to obtain the benefit of the exclusionary rule.

The probable cause determination under section 991 does not include a determination that evidence was unlawfully obtained; the only means for a misdemeanor defendant to secure that determination is a noticed motion under section 1538.5.

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