AddressBlock

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF _______
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
_____________________,
Defendant.

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Case: ________
MOTION FOR PROBABLE
CAUSE HEARING (PC 991)
Date: ________
Time: ________
Place: ________

Defendant hereby requests that the court determine the lawfulness of the detention or
arrest and whether there is probable cause to believe that a public offense has been committed
and whether defendant is guilty thereof.
If the court determines that there is no such probable cause, defendant hereby moves for
an order dismissing the complaint against [him/her] and discharging defendant from custody.
Dated: ________
___________________
Attorney for Defendant

If the defendant is in custody at the time of arraignment on a misdemeanor, the magistrate must,
on the motion of counsel, determine whether there is probable cause to believe that a public
offense has been committed and that the defendant is guilty thereof. (Pen C 991; In re Walters,
15 Cal. 3d 738, 126 Cal. Rptr. 239, 543 P.2d 607 (1975)).
In re Walters, 15 Cal. 3d 738, 126 Cal. Rptr. 239, 543 P.2d 607 (1975), made it clear that the
lawfulness of an arrest is to be considered at a post-arrest hearing. Similarly, Pen C 991(c)
provides that the magistrate shall consider any warrant of arrest with supporting affidavits. In
People v. Ward, 188 Cal.App.3d Supp. 11, 14, 235 Cal.Rptr.2d 287 (1986), the court held that
pursuant to a motion made under the provisions of Pen C 991, a trial court may properly
consider the lawfulness of a detention or arrest in determining whether there is probable cause to
believe that a defendant in custody has committed a misdemeanor.
Notice: The hearing need not be noticed, and the motion may be made orally. The determination
of the lawfulness of the detention or arrest must be made immediately after the motion is made.
(Pen C 991). Since the decision to make this motion can be made only after a review of the
reports and these reports are normally obtained for the first time at the arraignment, no advance
notice to the prosecution is required. The court may grant a continuance of the hearing on the
motion for good cause for a period not to exceed three court days. (Pen C 991).
Hearing: The probable cause determination required by the Fourth Amendment does not contain
the safeguards of an adversarial proceeding. There is no right of cross-examination. In
determining the lawfulness of any arrest or detention, the magistrate may consider any warrant of
arrest with supporting affidavits, the sworn complaint together with any reports incorporated by
reference thereto, or any documents of similar reliability. (Pen C 991).
If motion granted: If the court determines that no such probable cause existed for the arrest or
detention and insufficient evidence of the charge remains, it must dismiss the charge. However,
this dismissal is not a bar to another prosecution for the same offense it the prosecution refiles
within 15 calendar days of the dismissal. A second dismissal under the section is a bar to further
prosecution. (Pen C 991(e)).
However, a dismissal is permitted under Pen C 991 only if the defendant is in custody at the

time the motion is made. (Pen C 991(a)). Therefore, the prosecution can avoid a second
dismissal by simply allowing the defendant to be out of custody at the time of the arraignment.