By Ransom Bergen
San Francisco – A motion to suppress evidence in a preliminary hearing on Friday resulted in widespread confusion. Unfortunately, the court had no time to sort out its confusion.
The circumstances forming the basis of the motion are intriguing and complicated, and Officer Banega, whom the prosecution had called to give testimony, did not arrive in court until a few minutes past 4:00 p.m. This left less than half an hour to finish the hearing before court closed for the day.
The defendant in this case is alleged to have assaulted two men in the Muni Underground with an unknown weapon. The exchange was captured on security footage.
Assistant District Attorney Chang showed Officer Banega multiple photographs of the complaining witness and their wounds. ADA Chang asked Banega to verify particular elements of the police report. While Officer Banega had been present on the scene after-the-fact and spoken to witnesses, she herself was not the defendant’s arresting officer. The arresting officer did not appear in court to give testimony on Friday.
The evidence and testimony provided in court, then, was able to show a sufficient measure of probable cause for the defendant’s charges in this hearing. However, since the officer called to give testimony was a different officer from the one who made the arrest, ADA Chang had not in fact shown that this arresting officer had knowledge of the evidence at the time of 
the arrest, which was a different day from the alleged crime.
Under the Harvey-Madden rule, police officers must have a first-hand reason to conduct a search or make an arrest. There was no evidence provided in court on Friday suggesting that the arresting officer had any reason to arrest the defendant other than information gathered from hearsay. There was no warrant. Deputy Public Defender Nguyen’s motion to suppress evidence, therefore, claimed that the arrest of the defendant was unlawful.
A motion to suppress evidence will invalidate any evidence that is shown to have come from an unlawful source. The assistant district attorney did not rely on any evidence during the hearing that had emerged after the arrest–only evidence from before. For this reason, it is unclear what exactly the motion to suppress will do if the prosecution fails to prove the arrest had lawful grounds.
The judge said that, given the security footage, witness testimony, and photographs presented during the hearing, there is enough probable cause for the charges against the defendant to be taken to trial. The judge then asked Nguyen to indicate what evidence she thought had been obtained unlawfully. Nguyen did not have an immediate answer, but the judge will give Nguyen an opportunity to brief her later in the month, using precedent from past cases to justify Nguyen’s interpretation of the rule.
Nguyen’s argument for the motion hinges on the illegality of the arrest. The fact that the prosecution was unable to indicate during this hearing that the arrest itself was lawful is somewhat disturbing, even if the arrest resulted in no additional evidence against the defendant.
