Drews

*1321 Opinion

After the superior court denied his motion to suppress evidence (Pen. Code, 1 § 1538.5, subd. (i)), defendant David Drews pleaded guilty to possessing methamphetamine for sale. (Health & Saf. Code, § 11378.) Drews appeals, contending the court erred in denying his motion to suppress. Drews asserts the superior court should have permitted him to present additional evidence on his motion to suppress. He also asserts the court should have found the police did not comply with section 1531’s “knock and notice” requirements before entering his apartment to execute a search warrant. We affirm.

I

At his preliminary hearing Drew moved to suppress evidence under section 1538.5. Drew’s motion was denied and he was held to answer.

In the superior court Drews renewed his motion to suppress under section 1538.5, subdivision (i). 2 Drews wanted to present additional evidence he asserted could not reasonably have been presented at the preliminary hearing. The People objected. When the court asked why the evidence was not presented at the preliminary hearing, Drews requested an in camera hearing to disclose the reasons.

I respectfully disagree with the majority’s conclusion the trial court properly excluded Capone’s testimony at the special hearing.

At a hearing in camera, the trial court determined defense witness Capone could not reasonably have been produced at the preliminary hearing. Nevertheless, the court in camera excluded Capone’s testimony on the *1329 grounds it was cumulative and surplusage, reasoning the magistrate’s decision would not have changed had it heard Capone’s testimony and further reasoning Drews should not be allowed to add one more witness “of the same sort” simply because the police officer’s credibility was being challenged.

The trial court erred because once it found Capone could not reasonably have been produced at the preliminary hearing, Drews had a right to a special hearing in open court to present this evidence. 1 (Pen. Code, 2 § 1538.5, subd. (i).) Because Capone’s testimony went directly to the knock-notice findings made by the magistrate, the trial court then had a duty to exercise its independent judgment when deciding whether the officer complied with the knock-notice requirements of section 1531 in light of this additional evidence. 3 (See People v.…

After the superior court denied his motion to suppress evidence (Pen. Code, [1] § 1538.5, subd. (i)), defendant David Drews pleaded guilty to possessing methamphetamine for sale. (Health & Saf. Code, § 11378.) Drews appeals, contending the court erred in denying his motion to suppress. Drews asserts the superior court should have permitted him to present additional evidence on his motion to suppress. He also asserts the court should have found the police did not comply with section 1531's "knock and notice" requirements before entering his apartment to execute a search warrant. We affirm.

At his preliminary hearing Drew moved to suppress evidence under section 1538.5. Drew's motion was denied and he was held to answer.

In the superior court Drews renewed his motion to suppress under section 1538.5, subdivision (i). [2] Drews wanted to present additional evidence he asserted could not reasonably have been presented at the preliminary hearing. The People objected. When the court asked why the evidence was not presented at the preliminary hearing, Drews requested an in camera hearing to disclose the reasons.