I concur in part I of the judgment. I agree the doctrines of res judicata, collateral estoppel and law of the case do not bar Hallman from seeking further review of the denial of his Penal Code section 1538.5 motion in his appeal from the judgment of conviction. I dissent from the balance of the opinion.
I
My first point of disagreement is with the majority’s insistence that we review an issue not certified to us by the appellate department of the superi- or court. The hierarchical system within which we work presupposes a winnowing process in which legal and factual issues are first decided at the lowest level. It necessarily requires restraint by higher courts so that the refinement process at the lower level can first occur before higher court intervention.
In applying the doctrine of the law of the case to deny Hallman’s appeal, the appellate department did not reach the issue discussed at length by the majority in part II. The appellate department certified this case to us solely because of the question which we answer in part I. There is nothing in the appellate department’s order or in any of the documents in the record before us suggesting the appellate department was reluctant to decide the alleged invalidity of rule 604 after we returned the case to it. So far as I am aware, the appellate department has never discussed the validity and/or application of rule 604 in a written opinion. Consistent with customary and proper procedure, I believe we should allow it to do so here and, if appropriate, certify that question to us. Because my colleagues are not similarly restrained, I must respond to the majority’s discussion of rule 604 explaining why I disagree with their conclusions.
II
The majority manifest their strong dislike of Wilder v. Superior Court (1979) 92 Cal.App.3d 90 [154 Cal.Rptr. 494] in a number of ways characterizing that portion of Wilder with which they disagree as “dictum”, (maj. opn., ante, at p. 1338), ’’confused” (maj. opn., ante, at p. 1339), “ill-conceived” (maj. opn. p. 1341), or “erroneously decided” (maj. opn., ante, at p. 1342). I find the zeal underlying these varying descriptions somewhat surprising since I conclude Wilder and rule 604 say the same thing. Both Wilder and rule 604 require the defendant’s motion to specifically describe the evidence to be suppressed and the ground or theory on which the arguments are based. (Wilder; 92 Cal.App.3d at pp. 96-97; rule 604 quoted *1344in maj. opn., ante, at p. 1337.) I see no difference between the procedural requirements articulated in Wilder and those required by rule 604.
Regardless of the correctness of my conclusion, the majority’s disagreement with Wilder appears to be limited to Wilder’s approval of a defendant’s initial pleading which simply alleges that certain evidence was seized without a warrant and places the burden of a responsive pleading on the prosecution. The majority conclude such an initial pleading lacks the specificity to require the prosecutor to respond. Wilder erred, we are told, in confusing pleading requirements, the burden of producing evidence and the ultimate burden of proof. (Maj. opn., ante, at p. 1339.) According to the majority, “moving parties [i.e., defendants] can be compelled to produce evidence and to specifically plead the theories or grounds upon which the motion to suppress is brought. The burden of proof as to the justification for a warrantless search always remains on the prosecution notwithstanding the pleading requirements.” (Maj. opn., ante, at p. 1339.) Later, we are reminded that “requirements of pleading [are not] the same as the burden of proof.” {Ante at p. 1340.) To read the majority’s reasoning, one would think there is no relationship between pleading and proof requirements.
It is well established that the defendant, as the moving party in a section 1538.5 proceeding, bears the burden of demonstrating unlawful conduct by law enforcement officials. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23].) The defendant may meet this burden in two ways. If the evidence sought to be suppressed was seized pursuant to a warrant, the defendant must establish the invalidity of the warrant or that the seizure exceeded the warrant’s scope. If no warrant was involved, however, a prima facie case of unlawful police conduct is established when the defendant demonstrates that a warrantless search occurred. (Ibid.; Guidi v. Superior Court (1973) 10 Cal.3d 1, 15, fn. 15 [109 Cal.Rptr. 684, 513 P.2d 908].) The burden then shifts to the prosecution to prove by a preponderance of the evidence the exception to the warrant requirement which justifies the seizure. (Ibid.)
I can think of no instance in our criminal or civil justice system in which we require a pleader to plead more than facts which would constitute a prima facie case. But that is exactly what the majority do here. Interestingly, although they deem Hallman’s motion lacking in the “specificity of pleading” required by their interpretation of rule 604, the majority do not tell us what they believe would be a sufficient pleading. If pleading a prima facie case is not sufficient, I can only assume the majority would require a defendant to anticipate the justification(s) on which the prosecutor will rely and attempt to rebut the anticipated argument. Putting aside questions of fairness, such a system is clearly inefficient.
*1345Perhaps an unstated assumption of the majority opinion is that in many or most cases, defense counsel have a pretty fair idea how the prosecution will seek to justify the warrantless seizure.1 Here, for, example, a simple case of misdemeanor drunk driving, it may be relatively easy to anticipate the People will allege that the police officer had reasonable cause to detain the defendant on suspicion of drunk driving, that during the detention certain facts came to the attention of the officer which gave rise to probable cause to arrest and that a search incident to that arrest yielded additional evidence. Even in a simple case, however, a defendant should not be forced to guess. There is no reason a prosecutor should be unable to tell the court and defense counsel why the police were justified in seizing a particular item of -evidence without a warrant.
Where the issues are more complex (see, e.g., People v. Williams (1988) 45 Cal.3d 1268, 1289-1294 [248 Cal.Rptr. 834, 756 P.2d 221]), the procedure mandated by the majority becomes positively unwieldy because of the possibility defense counsel will guess incorrectly as to one or more links in the prosecution’s chain of reasoning. The results are predictable: The motion papers are overinclusive, causing an unnecessary burden on the court. Where issues are missed, additional points and authorities must be filed which are either late or require postponement of the hearing. Alternatively, a hearing is held in which neither the parties nor the court is exactly sure what the critical issues are. Procedural economy and efficiency are important criteria on both sides of the courtroom. Here, the majority’s departure from precedent can be justified solely by a concern with easing the burden on the district attorney’s office.
The majority note two “vices” with the Wilder procedure which, in their view, justify a contrary rule. First, citing People v. Manning, supra, 33 Cal.App.3d 586, 600-6012, they suggest that Wilder “requires the prosecu*1346tor to canvass the entire area of search and seizure law and to raise all conceivable issues . . . .” (Maj. opn., ante, at p. 1339.) Respectfully, the majority overstate their argument. As the court explained in People v. Sedillo (1982) 135 Cal.App.3d 616, 624 [185 Cal.Rptr. 475], Wilder “does not require the prosecution to prove a negative, to refute facts not at issue, but only affirmatively to prove the justification for a warrantless search and seizure.” Perhaps it reflects my naivete, but I had always assumed the model underlying judicial interpretation of the Fourth Amendment was that law enforcement officials should understand the justification for a warrantless search or seizure before the fact rather than afterwards. At least, I thought, a prosecuting attorney removed from the “heat of battle” would not oppose a suppression motion unless he or she could articulate a complete justification for a warrantless seizure.
It is, I suspect, the second Wilder “vice” which more concerns the majority. Accurately viewed, however, their quarrel is not with Wilder but with a later case (People v. Sedillo, supra, 135 Cal.App.3d 616) interpreting it. Sedillo held that a defendant could raise for the first time on appeal legal attacks on the prosecution’s proffered justification for a warrantless seizure. If the facts as developed by the prosecutor at the section 1538.5 hearing are insufficient to rebut the new attack, Sedillo concludes the appellate court must reverse the order denying the suppression motion and order that the evidence be suppressed. (Id. at p. 625.)
The majority term the Sedillo holding a “potential trap for the trial court.” (Maj. opn., ante, at p. 1339.) It seems to me the trap—if indeed *1347there is a trap—is for the prosecutor and not the trial court. In any event, the sole issue presented by this case is the sufficiency of Hallman’s initial moving papers. In contrast, Sedillo involves a defendant’s failure at any stage of the 1538.5 proceedings in the trial court to identify a flaw in the prosecution’s proffered justification for a warrantless seizure of evidence. Whether such a failure should constitute a waiver of that argument for the purposes of appellate review is a question which might be presented in another case. I respectfully suggest, however, that in their haste to do a thorough housecleaning, the majority have thrown out the Wilder baby with the Sedillo bath water in a case in which the wisdom of the Sedillo rule is simply not before us.
In conclusion, were we to reach the Wilder issue, I would hold that the trial court erred in denying on procedural grounds Hallman’s motion to suppress. Accordingly, the judgment should be reversed to allow Hallman to withdraw his guilty plea. If he decides to do so, the court should reopen the section 1538.5 hearing to allow the People to plead and prove their justification for the warrantless seizure of evidence.
A petition for a rehearing was denied December 15, 1989. Wiener, J., was of the opinion the petition should be granted. Appellant’s petition for review by the Supreme Court was denied March 15, 1990. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
A distinction should be drawn between the items to be suppressed, which the defendant should know about by way of discovery and can reasonably be expected to specify (see People v. Manning (1973) 33 Cal.App.3d 586, 597 [109 Cal.Rptr. 531]), and the prosecution’s theory of justification for a warrantless seizure, as to which the defendant can only guess. Here, for instance, Hallman’s moving papers identified numerous items of evidence he sought to be suppressed, alleged the seizures were without a warrant, and cited points and authorities in support of the proposition that proof of the lack of a warrant establishes a prima facie case of illegality and shifts to the People the burden of proving justification for the warrantless seizure.
If the portion of Wilder which troubles the majority is accurately termed “dicta,” the portions of Manning on which they rely are even more so. The defendant in Manning made an oral motion to suppress which identified one particular item of evidence without excluding others but asserted no grounds for the motion—not even that the seizure was without a warrant and thus presumptively invalid. (33 Cal.App.3d at p. 590.) While the Manning court concluded that such a specification of grounds for the motion was insufficient, it, like the majority here, never explains what would be sufficient. Later in the opinion, the court explains *1346that the insufficiency of the defendant’s pleading was immaterial because it “was at least largely overcome in this instance by the court’s urging and announcement of the basis for its ruling and by the participation and argument of both counsel. Inasmuch as the motion was thus heard and determined, this appeal from the order of suppression is appropriate for determination.” (Id. at p. 598.)
Unlike the majority, I am not even sure that Manning’s dicta support their conclusion that a Wilder-type motion is an inadequate first pleading by a defendant bringing a suppression motion. While the portions cited in the majority opinion, taken out of context, might suggest such a result, other passages in the opinion have a somewhat different flavor. In particular, toward the end of its opinion, the Manning court explained that while it was not possible to articulate “definitive” appellate standards for passing on suppression rulings, it would recite several of the rules which have “evolved”: “[T]he burden is clearly upon the defendant, as moving party, to raise the issue of illegally obtained evidence. [Citation.] It has been held, however, that when a defendant raises an-issue as to the illegality of an arrest or search, he makes ‘a prima facie case’ when he establishes that an arrest or search was made without a warrant and that ‘the burden then rests upon the prosecution to show proper justification.’ [Citations.] . . . [j[] As to the way in which the defendant’s ‘grounds’ or the People’s ‘justification’ should or must be raised in the trial court before a reviewable issue is presented, we have indicated that it is clearly preferable for the defendant’s grounds to be set forth in his motion. In the nature of things, the People’s theory or justification can be determined only from the evidence and argument offered.” (Id. at pp. 600-601.) In contrast to the majority, I see nothing in this description necessarily inconsistent with the approach suggested by Wilder.