Reported / Citable
Background
Jesse James Thompson moved to suppress evidence at his felony preliminary hearing. The prosecution sought a continuance because the detective needed to oppose suppression was on medical leave for surgery. The request came on the last statutory day for beginning the preliminary hearing, and Thompson would not waive time. The court denied a continuance, heard the suppression issue without the unavailable testimony, granted suppression, and dismissed the complaint.
The prosecution asked the superior court to reinstate the complaint under Penal Code section 871.5. It argued that the preliminary-hearing deadline in section 859b did not require the suppression motion itself to be adjudicated within the same period and that the matter could have been continued despite Thompson’s refusal to waive time. The superior court denied reinstatement, and the People appealed.
The Court’s Holding
The Second District affirmed. A defendant is statutorily entitled to make a suppression motion at the preliminary hearing, and that motion is part of the hearing that section 859b requires to occur within its specified time. The prosecution could not preserve the complaint by separating the evidentiary issue from the preliminary hearing and postponing it beyond the deadline over the defendant’s objection.
Once Thompson invoked the suppression procedure, he had a substantial right to litigate whether the challenged search or seizure was lawful before being committed for trial. Failure to adjudicate that motion within the preliminary-hearing period would deny that right and produce an improper commitment. The detective’s medical unavailability did not alter the statutory consequence on this record, especially because the requested delay reached the final permissible day and Thompson declined to waive time.
The appellate court upheld the order refusing to reinstate the felony complaint. Its ruling addresses the statutory interaction between the preliminary-hearing clock and suppression practice; it does not suggest that every witness problem must lead to dismissal. Prosecutors remain able to plan proof, seek timely relief supported by the governing statutes, or obtain a valid waiver, but the court may not erase the defendant’s time right after the deadline arrives.
Key Takeaways
- A suppression motion properly made at a preliminary hearing must be resolved as part of that time-limited hearing.
- The prosecution should anticipate witness availability before the final section 859b date.
- A defendant’s refusal to waive time preserves the statutory protection and can make a late continuance unavailable.
- Reinstatement under section 871.5 does not cure a dismissal resulting from denial of a substantial preliminary-hearing right.
Why It Matters
Criminal practitioners should calendar the preliminary-hearing deadline together with every suppression briefing and witness subpoena, not as separate tracks. Prosecutors should identify the officer or custodian necessary to establish the search well before the last day and create a record for any continuance request. Defense counsel should state clearly whether time is waived and ensure the suppression motion is actually heard rather than deferred.
The decision also affects charging strategy after dismissal. Although later procedural options may depend on the circumstances, section 871.5 review cannot be treated as an automatic safety valve for proof that was unavailable on the statutory hearing date. A clean record of dates, waivers, reasons for unavailability, proposed duration, and prejudice will be essential in any future dispute.
The opinion treats timely adjudication as part of the substantial preliminary-hearing right itself, so the question was not simply whether the prosecution had a sympathetic explanation for its witness problem.