Metropolitan News-Enterprise


Tuesday, June 11, 2019


Page 1


Court of Appeal:

Denial of §1538.5 Motion Didn’t Bar Bid Under §995

Opinion Says Legislative Scheme Contemplates Search-and-Seizure Challenge Under Both Sections;

Judge Granting Later Motion Did Not Overrule First Judge, Merely Countermanded Magistrate


By a MetNews Staff Writer


One judge’s denial of a suppression motion pursuant to Penal Code §1538.5, based on the alleged illegality of a search and seizure, does not bar another judge from granting a motion under Penal Code §995 to dismiss the information on the identical ground, Div. Two of the Fourth District Court of Appeal held in an opinion certified for publication yesterday.

Justice Michael J. Raphael was the author of what was initially an unpublished opinion, filed May 16.

The statutory scheme, Raphael said, envisions multiple motions, and the situation did not entail one judge of a superior court reversing an order by a judge of that same body; rather, two judges—one ruling on a §1538.5 motion, the next acting under §995—differently assessed the correctness of an action by the magistrate in denying suppression.

Contraband in Vehicle

Defendant Martell Shimon Kidd, who requested publication, was arrested in the early hours of April 21, 2017, after police found in his vehicle 26 ounces of marijuana, a pistol, and 142 benzodiazepines pills. No warrant was needed; he was a probationer who had agreed to warrantless searches.

The issue was whether the detention of Kidd was reasonable. At a preliminary hearing, retired Riverside Superior Court Randall D. White, sitting on assignment, found that it was reasonable, denying Kidd’s §1538.5 motion; at a hearing following a preliminary hearing, Judge Mark E. Johnson again denied a suppression motion.

Alleging nothing new, Kidd moved to dismiss pursuant to §995 and Judge Jorge C. Hernandez granted it.

Officers’ Conduct

Officers made the arrest while on patrol. They spotted Kidd and another in a parked automobile, with the fog lights on.

An officer explained:

“[T]here’s a couple people inside of this car parked on the road at 1:30 in the morning. Maybe I should check to see if they’re stranded, or what exactly they’re doing. If—you know, who they are, if they live here.”

The officer made a U-turn, flicked on the spotlights, alighted the vehicle and, as he approached the driver’s side, with Kidd and the wheel, detected odor of marijuana and saw the passenger hiding some bags which he suspected contained marijuana. Kiss admitted he was on probation; the officer ascertained that he has consented to searches as a condition of probation; the search commenced and the contraband was impounded.

Raphael’s Opinion

Raphael’s opinion rejects the People’s contention that Kidd impermissibly relitigated what had already been decided. He explained that before §1538.5 was enacted in 1967, suppression as evidence of the fruits of a search and seizure could be sought either by a nonstatutory motion or under §995.

Enactment of §1538.5 did affect the availability, additionally, of a motion under §995, the jurist said, noting that the newer section provides:

“Nothing in this section shall be construed as altering...the procedure and law relating to a motion made pursuant to Section...995.”

1967 Case Cited

Arguing for reversal, the Riverside District Attorney’s office relied on the Court of Appeal’s March 27, 1967 opinion in People v. Superior Court (Scofield). There, Div. One of this district reversed an order by Los Angeles Superior Court Judge Bernard Lawler (now deceased) granting a §995 motion.

The grounds were the same as those set forth in a petition for a writ of mandate challenging a municipal court judge’s denial of motions to quash search warrants which had been denied by Superior Court Judge Joseph Wapner. (Wapner, now deceased, went on to become the Superior Court’s presiding judge, then gained worldwide fame as the judge on television’s “People’s Court.”)

The 1967 opinion says:

“We are persuaded that the principles of res judicata apply in criminal matters to bar a redetermination of identical issues decided in a prior proceeding instituted by the same parties.”

Case Distinguished

In the present case, Raphael declared, “[t]he doctrine of res judicata is….inapplicable….” He explained:

Scofield is distinguishable from this case. Judge Wapner’s ruling denying Scofield’s petition for writ of mandate is analogous in some respects to Judge Johnson’s ruling denying Kidd’s renewed motion to suppress pursuant to section 1538.5, subdivision (i). But Judge Wapner’s ruling led to a final judgment in a collateral writ proceeding.”

He continued:

“In contrast, here, Judge Johnson’s ruling on Kidd’s section 1538.5 motion did not result in any final judgment. Rather, it was a pretrial ruling on the admissibility of evidence that is best viewed as an ‘intermediate, interlocutory ruling[] subject to revision even after the commencement of trial.’ ”

No Overruling

The District Attorney’s Office cited the rule that one superior court judge can’t overrule another. Raphael took the stance that Hernandez did not overrule Johnson, setting forth:

“Under section 995, Judge Hernandez reviewed the magistrate’s ruling at the preliminary hearing, not Judge Johnson’s ruling after the special hearing pursuant to section 1538.5, subdivision (i)…. Judge Johnson and Judge Hernandez reached different conclusions in their review of the evidence presented at the preliminary hearing and the magistrate’s implicit findings of fact based on that evidence. But they did so in parallel, as they each presided over separate statutory procedures, not by one superior court judge overruling the other.”

He said in a footnote that while White was sitting on assignment as a judge of the Superior Court, he was, at the arraignment, acting as a “magistrate,” and as such, was not acting in the capacity of a “judge.”

Raphael went on to say that the “general rule” against one trial judge overruling another has exceptions. He wrote:

“In adopting section 1538.5, the Legislature provided multiple procedural vehicles for both the defendant and the prosecution to litigate and relitigate search and seizure issues before trial….It did not provide any express limitation of the sort that the People propose, based on whether the same judge or a different one is presiding over the various available statutory procedures.”

Addressing the merits, Raphael said:

“Taking into account the totality of the circumstances, we find that Kidd was detained when the officer made a U-turn to pull in behind him and trained spotlights on his car. The officer did not block Kidd’s car in, and he did not illuminate his colored emergency lights, so as to unambiguously signal a detention. Nevertheless, motorists are trained to yield immediately when a law enforcement vehicle pulls in behind them and turns on its lights.”

He added:

“Moreover, any ambiguity was removed when the officer more or less immediately exited his patrol] vehicle and began to approach Kidd’s car. Although the officer’s approach was, according to record, not made in a particularly aggressive or intimidating manner, a reasonable person in Kidd’s circumstances would not have felt free to leave.”

That detention, Raphael said, was not reasonable.

It is no violation of the Vehicle Code, he noted, to keep fog lights on which a vehicle is parked. Any notion that a crime was about to occur, the justice said, was founded on mere “speculation.”

The case is People v. Kidd, 2019 S.O.S. 2664.


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