Can a motion to suppress a search and seizure under section 1538.5 of the California Penal Code, or can the failure to properly advise him of his rights, and to obtain a valid waiver of those rights?

California, United States of America


The following excerpt is from The People v. Brewer, 81 Cal.App.4th 442, 96 Cal.Rptr.2d 786 (Cal. App. 2000):

We must also consider whether his claims concerning the failure to properly advise him of his rights, and to obtain a valid waiver of those rights, can even be raised in a motion to suppress under Penal Code section 1538.5, which is generally limited to alleged search and seizure violations and normally does not include issues arising under Miranda. (People v. Whitfield (1996) 46 Cal.App.4th 947, 956-957.) We agree with the holding in People v. Whitfield, supra, 46 Cal.App.4th at pages 957-958, that physical articles of evidence allegedly obtained in violation of Fifth and Sixth Amendment principles cannot be suppressed by use of a Penal Code section 1538.5 hearing, since such a hearing is limited to search and seizure issues.

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