Can a motion to suppress evidence alleged to have been illegally seized pursuant to warrant lie under the California Penal Code?

The Attorney General points out that a motion to suppress evidence alleged to have been illegally seized pursuant to warrant lies under Penal Code, section 1538.5, subdivision (a)(2). If the evidence relates to a misdemeanor complaint (as here), the motion must be made in the municipal court and heard prior to trial at a special hearing relating to the validity of the search or seizure. (Pen.Code, 1538.5, subd. (g); see People v. Bonanza Printing Co. (1969) 271 Cal.App.2d Supp. 871, 873--874, 76 Cal.Rptr. 379 (and cases cited therein).)

Here, the respondent did not specify any particular code section pursuant to which she attempted to suppress the evidence. However, we deem that unnecessary in view of subdivision (n) of section 1538.5 of the Penal Code which provides, in part, that '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 federal and state constitutions.' In our opinion, therefore, the question of probable cause to issue the search warrant was properly before the municipal court. (Cf. People v. Bonanza Printing Co., supra, 271 Cal.App.2d Supp. at p. 873, 76 Cal.Rptr. 379.)

In this connection we note respondent moved the municipal court for a pretrial determination on the alleged obscenity of the films. This motion was proper and the municipal court had the jurisdiction to make such a determination pending trial. (Cf. People v. Noroff (1967) 67 Cal.2d 791, 792, 794, 63 Cal.Rptr. 575, 433 P.2d 479 (by implication).)