Swearingen

After his motion to suppress evidence pursuant to Penal.Code section 1538.5 was denied, defendant, Christopher Michael Swearingen, pled guilty to possession of hashish for sale. In this appeal, he challenges the trial court order denying his motion to suppress. Swearingen contends that at the hearing on the motion, the trial court erroneously denied his claim that because the police and prosecution had failed to comply with the obligation to preserve material evidence imposed upon them by People v. Hitch (1974) 12 Cal.3d 641 [ 117 Cal.Rptr. 9 , 527 P.2d 361 ], testimony establishing probable cause to search was inadmissible.

We conclude: (1) physical evidence lost or destroyed by the police after Swearingen’s arrest bears directly upon a conflict between testimony of the police and Swearingen on the crucial point going to probable cause to search; and (2) the prosecution failed to sustain its burden of demonstrating that the police agency had established, enforced, and attempted in good faith to adhere to systematic procedures designed to preserve the *573 evidence. Accordingly, we conclude that the trial court erred in considering the prosecution testimony describing…

I respectfully dissent. I would affirm the judgment of conviction.

The case of People v. Hitch (1974) 12 Cal.3d 641 [ 117 Cal.Rptr. 9 , 527 P.2d 361 ], is distinguishable and does not apply. It is limited to material evidence going to the guilt or innocence, as charged, during a trial on the merits. Moreover, in my view it would not be in the best interest of criminal justice to extend the scope of the Hitch principle to encompass the issue of the credibility of a law enforcement witness during a hearing to suppress evidence pursuant to Penal Code section 1538.5.

The Case at Bench

In the instant case defendant Swearingen in a three-count information was charged with possession for purposes of sale of hashish (count I), cocaine (count II) and marijuana (count III), all in violation of Health and Safety Code section 11359, subdivision (a).

*576 Defendant pleaded guilty to possession for purposes of sale of hashish (count I) 2 following the trial court’s denial of his motion to suppress all evidence pursuant to Penal Code section 1538.5 and what defense counsel described as “something analagous to a Hitch motion.” (Italics added.)

The Motion to Suppress

“A proceeding under…

After his motion to suppress evidence pursuant to Penal Code section 1538.5 was denied, defendant, Christopher Michael Swearingen, pled guilty to possession of hashish for sale. In this appeal, he challenges the trial court order denying his motion to suppress. Swearingen contends that at the hearing on the motion, the trial court erroneously denied his claim that because the police and prosecution had failed to comply with the obligation to preserve material evidence imposed upon them by People v. Hitch (1974) 12 Cal.3d 641 [ 117 Cal. Rptr. 9 , 527 P.2d 361 ], testimony establishing probable cause to search was inadmissible.

We conclude: (1) physical evidence lost or destroyed by the police after Swearingen's arrest bears directly upon a conflict between testimony of the police and Swearingen on the crucial point going to probable cause to search; and (2) the prosecution failed to sustain its burden of demonstrating that the police agency had established, enforced, and attempted in good faith to adhere to systematic procedures designed to preserve the evidence. Accordingly, we conclude that the trial court erred in considering the prosecution testimony…