Bruner v. Superior Court

[1195]

Opinion

PERLEY, J.

Petitioner contends he was illegally committed because the magistrate refused to permit him to move for suppression of evidence at the preliminary hearing on the ground that the motion was untimely. We agree that the magistrate was required to hear the motion and that the information must be dismissed for the denial of a substantial right.

On September 23, 1988, petitioner appeared for preliminary hearing on charges of possession for sale of heroin and possession of a hypodermic needle. As the hearing commenced, defense counsel informed the magistrate that he had two witnesses and that he planned to call the prosecution’s investigating officer as a defense witness. The prosecution then called its three witnesses—two officers who had seized a plastic bag containing multicolored balloons, a scale, a film canister containing a brown tar-like substance and a notebook from petitioner’s apartment, and a criminalist who identified the tar-like substance as heroin. The officers testified that on April 29, 1988, while in plain clothes, they had investigated a complaint of narcotic dealing at a hotel room at 725 or 735 Geary Street. Officer Dempsey knocked on the apartment, asked for Tony Curtis, and explained that he wanted to buy a couple “quarter grams,” meaning methamphetamine. Petitioner, who had answered the door, said that he could not sell to him because he did not know him. Officer Dempsey testified that he could see the scale and multicolored balloons on a kitchen table and could smell raw tar heroin. He identified himself as a police officer and petitioner stepped to the side and gestured to the two officers to enter. The officers seized the various items of contraband. These items were marked for identification as the testimony of Officer Dempsey proceeded.

When the prosecution had completed its case, the magistrate asked the prosecutor if the People were moving to introduce the items into evidence. Defense counsel then orally moved to suppress the evidence. The magistrate ruled that the motion was untimely because made when the prosecution had concluded its testimony and was introducing the exhibits into evidence.

On November 18, 1988, petitioner moved to set aside the information pursuant to Penal Code section 995 on the ground that he had been denied his right to move to suppress evidence at the preliminary hearing. The motion was heard and denied on December 6, 1988. Asked for a reason for its ruling, the court explained: “Counsel, I don’t find a substantial right of the defendant was violated by the conduct of the judge, the motion was made untimely, and, again, he still has his motion up here.”