What is the legal test for a motion to suppress or set aside search and seizure evidence at a preliminary hearing?
California, United States of America
The following excerpt is from People v. Graves-Wright, A140007 (Cal. App. 2014):
To preserve a search and seizure issue for appeal, a defendant is required to raise the issue before the trial court; a motion to suppress brought before the magistrate at the preliminary hearing is not sufficient. (People v. Lilienthal (1978) 22 Cal.3d 891, 896 (Lilienthal).) To satisfy this requirement, a defendant whose motion to suppress evidence is denied at the preliminary hearing must renew his or her section 1538.5 motion at a
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special hearing in the trial court ( 1538.5, subd. (i)) or move to set aside the information ( 995) on Fourth Amendment grounds. (Lilienthal, at pp. 896-897.) The fact that the magistrate and the trial judge are judges of the same court is immaterial to the application of this rule. (People v. Richardson (2007) 156 Cal.App.4th 574, 586-587, 589 [applying Lilienthal rule following unification of municipal and superior courts].) Defendant did not renew her motion to suppress or raise the search and seizure issue in a motion to set aside the information at any time after the preliminary hearing.
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