Barajas

*3 Penal Code section 991 is the legislative safeguard that allows an in-custody misdemeanant to require the arraigning magistrate to determine whether there is probable cause to believe the defendant has committed a public offense. ( Pen. Code, § 991, subd. (a).) If the magistrate finds no such probable cause, the defendant is entitled to a dismissal of the charge. ( Pen. Code, § 991, subd. (d).)

*499 We are presented with the following issue: Does section 991 vest the trial court with the discretion to consider, as part of its determination of probable cause, whether the defendant's detention prior to arrest complied with the Fourth Amendment's requirement that it be based on reasonable suspicion? It is defendant's position that, upon request by the defense, a section 991 motion has two phases. The first phase tasks the trial court with determining whether evidence was seized in violation of the federal Constitution. In the second phase, the trial court is to consider only the evidence that was constitutionally seized in assessing whether there is probable cause to believe the accused committed a public offense.

The trial court permitted defendant to litigate the Fourth…