If you made a Penal Code section 1538.5 suppression motion at the preliminary hearing in a felony case, a later special hearing after the information is filed generally is limited to evidence that could not reasonably have been presented at the preliminary hearing—unless all parties agree otherwise. If no motion was made at the preliminary hearing, or the case began by indictment, the statute provides a full-litigation branch. The history of the first motion determines what the later hearing can consider. Penal Code section 1538.5.

Compare the preliminary record with the proposed evidence

Gather the preliminary-hearing motion, transcript, ruling, information, and the specific new evidence you want the court to consider. Explain when the evidence became available, why it could not reasonably have been presented earlier, and how it bears on suppression. Evidence discovered after the hearing is not automatically evidence that was unavailable for it.

The statute requires at least 10 court days’ notice to the prosecution before the special hearing unless notice is waived; unless the defense waives it, the prosecution’s written response is due two court days before the hearing. The prosecution may recall witnesses who testified at the preliminary hearing. If the prosecution disputes that proposed evidence could not reasonably have been presented earlier, the court holds an in-camera hearing on that question. Findings made by the magistrate that do not rest on evidence unavailable at the preliminary hearing remain binding at the later proceeding. Penal Code section 1538.5.

Preserve the separate review deadline

A special hearing is not a guarantee that the court will reopen the evidence or suppress anything. If the court denies the renewed motion and the defendant wants further pretrial review, section 1538.5 provides a 30-day extraordinary-writ route. That is a review deadline after denial, not the deadline for filing the renewed motion. In People v. Romeo, the court discussed the need to renew a suppression motion after a preliminary-hearing denial and the evidence limits at a later special hearing. People v. Romeo.

Ask counsel to compare the transcript, proposed evidence, its availability at the first hearing, and the dates for notice and any writ. The Law Offices of David S. Chesley handles California suppression motions. Call (800) 755-5174 to discuss the hearing record.