Metropolitan News-Enterprise


Tuesday, June 23, 2020


Page 1


Suppression Motion May Be Heard in Infraction Case Without Presence of Prosecutor—Appeals Court


By a MetNews Staff Writer


A city attorney’s office does not concede the validity of a suppression motion in an infraction case by failing to file opposition or to send a deputy to court to present argument, Div. One of the Fourth District Court of Appeal has held, declaring that dispatching officers to provide narrative testimony is an acceptable approach.

The opinion, filed Friday, reverses suppression orders by San Diego Superior Court Commissioner Peter W. Singer in the cases of two defendants, Lula Sophia Gong Cotsirillos and Tess Elisabet Edman. They were cited by two Department of Alcoholic Beverage Control officers for a violation of Business & Prof. Code §25662(a) which proscribes possession by a person under the age of 21 years of “any alcoholic beverage… in any public place.”

One had a of clear liquid labeled “Arrowhead” the other’s bottle had a “Brisk tea” label.

At the suppression hearing, Singer told the officers:

“I don’t know why you were subpoenaed today. It’s not a trial, it’s a law and motion issue. And, typically, when you have law and motion, it’s...arguments between the attorneys.”

Transfer to Itself

He granted the motions; the Appellate Division of the San Diego Superior Court affirmed; the Court of Appeal opted to transfer the case to itself. Justice William Dato wrote:

“[W]e conclude that in the ordinary infraction case, the prosecution is not required to oppose a motion to suppress by filing an opposition brief or appearing at the suppression hearing. Instead, it may meet its burden to provide justification for a warrantless search by subpoenaing relevant law enforcement witnesses, who may in turn provide narrative testimony to the court in the same manner as would be permitted in the prosecution’s absence at an infraction trial. So long as the court’s conduct in calling and questioning witnesses is fair and properly limited in scope, such a procedure provides a fair hearing, does not lessen the prosecution’s burden of proof….”

He said this comports with cases permitting “flexible procedures” in infraction trials.

‘No Persuasive Reason’

In light of that flexibility, and the lack of a requirement that a prosecutor appear at the trial, Data wrote, “there is no persuasive reason to compel prosecutorial participation at a suppression hearing.”

The jurist added:

“In the run-of-the-mill infraction case, we agree with the People that an officer’s testimony will both provide the justification for the search and the basis for the conviction. A typical speeding case, for example, will involve the same evidence to justify the stop as to support a conviction. Although the two subpoenaed ABC officers were not permitted to testify here, they might have described their perception of defendants’ youth and objects they were carrying, which in turn could potentially have supported both the justification for the search and their guilt.”

The matter was remanded for a new hearing on the suppression motions.

The case is People v. Cotsirillos, 2020 S.O.S. 3005.


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