California Unlawful Search and Seizure

April 22, 2015

In California, all motions alleging unlawful searches and/or seizures are brought under Penal Code § 1538.5. Once a motion is filed, a hearing will be scheduled where the prosecutor has the burden to prove before the judge by the preponderance of the evidence that all defense contested areas under the Fourth Amendment were lawful. Search & seizure issues are extremely fact specific requiring a detailed analysis of the circumstances. In addition, all evidence in the case must be carefully reviewed, not to mention pursuing potential impeachment evidence via civilian complaints filed against any or all police officers intending to testify before the hearing.

The standard is whether the police officers acted reasonably under the circumstances and nearly ignoring all subjective motivation or knowledge. In the event the judge agrees that an unlawful search and/or seizure was committed by police officers or perhaps the prosecutor was unable to fulfill their burden of proof during the hearing, the court will suppress the evidence, deem it admissible, and the prosecutor will likely be unable to proceed forward with the case.

If you are being investigated for a crime and have been subject to a search and/or seizure by law enforcement contact Los Angeles Search and Seizure Lawyer John Rogers immediately. Early intervention by an attorney increases the chances of defeating accusations and criminal charges.

Traffic Detention

Contrary to popular belief, in order for a police officer to lawfully conduct a traffic stop, they must be armed with “reasonable suspicion” and not the higher standard of probable cause. Reasonable suspicion is measured on whether the police officer had reasonable articulate facts that criminal activity is afoot. Since a simple traffic infraction is considered a criminal offense, any breach of the law concerning a simple traffic violation will suffice to justify a traffic detention.

Contesting the initial traffic stop is common among DUI and drug cases because assuming the judge agrees that a police officer was not lawfully permitted to conduct a traffic stop and/or the prosecutor could not fulfill their burden of proof, then all evidence garnered as a result thereof shall be suppressed – i.e., observation of red watery eyes, smell of alcohol, statements made by the suspect, observations of contraband in the backseat, etc.

It should be noted that the underlying traffic stop need not be an ultimate violation of the law. The standard applicable is “reasonable suspicion,” interpreted in the form of a question of whether the police officer had a reasonable belief that a crime was being committed?

“Consent” to Search

In most cases, a suspect will consent to a search because they’re scared of what capabilities the police officer may have in the event they deny a police officer to search their person, vehicle, or home. Additionally, suspects also feel that it will “make them look more guilty” if they do not consent to search. The above are complete misconceptions and one should never allow a police officer to conduct a search period. By granting “consent,” one is legally authorizing a police officer to search nearly anything absent any probable cause of criminal activity. The issue of consent can arguably be implied via conduct, such has handing over a key to the officer to a locked container or box, as well as oral authorization.

However, consent can be contested in a court of law if specific circumstances are met. Moreover, if one was coerced into consenting, legal consent was not granted and the police officer was not validly authorized to conduct the search thereby suppressing all the evidence. In addition, a suspect can limit the scope of the search to a certain area. For example, “you can search my trunk but not the rest of my car.” In that case, the consent scope is solely authorized to the trunk area only and a police officer cannot exceed that permission absent probable cause. Furthermore, if consent is given, a suspect holds the power to revoke consent at any given time, even in the middle of a police officer searching a vehicle, home, or your person.

Sometimes police officers will issue a consent to search form which reads all your constitutional rights including the power to revoke consent at any time. This serves as evidence in a court of law indicating that a suspect acknowledged all their constitutional search and seizure rights and voluntarily chose to waive them. Keep in mind that not all police officers issue “consent to search forms,” and most of the time consent to search is made on a suspect’s oral authorization.

Consent to search is oftentimes abused by law enforcement. Since police officers holds substantial credibility in a courtroom. In fact, in 99% of criminal cases, it’s usually a suspect’s word over a police officers. Police officers are aware of their credibility and in nearly 100% of cases, police officers get away with fabricating one’s consent to search their person, vehicle, or home. It’s important to document all these issues and fabrications and forward to your attorney for review.

Not all police encounters are recorded audio or video so it’s imperative a skilled criminal defense attorney tailor their defense towards the best possible chances of revealing inconsistencies or exposing the police officers exaggerations / fabrications.

Home Searches

Home searches without a warrant are presumptively unlawful and the burden imposed on the prosecutor is to prove via preponderance of the evidence that police officers were lawfully permitted to enter a suspect’s home through a valid exception to the warrant requirement. A number of courts hold that any search into a person’s personal living quarters is suspicious if conducted without a warrant. Therefore, if police officers execute a search of a person’s home without a warrant, the prosecutor must show a valid exception to the warrant requirement.

Police officers may justify a home intrusion by showing exigent circumstances or consent by a suspect. Consent to search has been explained above and is applicable to all government searches, including homes.

Exigent circumstances serve as an exception to dispensing a search warrant. If police officers can justify their intrusion by stating that life preserving efforts or preserving evidence was necessary, a court may agree to uphold the lawfulness of the search. For instance, if the officers reasonably belief that someone is flushing narcotics down their toilet, they may be entitled to enter in an effort to preserve the evidence. Additionally, if the officers reasonably believe that death or serious bodily injury is to occur absent their presence, they may be allowed to enter.

Vehicle Searches

There are a number of ways a police officer can justify a search into a suspect’s vehicle without a warrant. Contrary to popular belief, the law allows police officers to conduct a search of a vehicle so long as they’re armed with probable cause that the vehicle contains contraband or fruits of the suspect’s arrest – i.e., firearms, knives, or narcotics. Probable cause may be evidenced by plain view of the officer as long as they were legally entitled to conduct the traffic stop and the contraband was readily apparent from their observation, no guessing. The best approach is to act politely and deny any request by the police officer to search your vehicle. Recall any potential violations and forward this information to your attorney.

Search Warrants

While executing a search warrant into someone’s home, police officers are required to “knock and announce” their presence first and subsequently leave a copy in the residence. Unfortunately, these requirements are often disregarded by police officers and there is no remedy available.

When contesting the validity of a search into a suspect’s home via search warrant, an attorney first examines whether there was sufficient probable cause to issue the warrant in the first place. And if insufficient probable cause exists, the prosecutor holds the burden of proof that the officers acted in good-faith in the validity of an invalid search warrant.

Additionally, if a search warrant is built upon information gained through a confidential informant, a skilled defense attorney will file motions to reveal the identity of the confidential informant as well as statements made by the informant to measure whether the information they conveyed to law enforcement was credible.

Furthermore, the scope of the search warrant may be at issue. Perhaps the judge allowed to search areas where a stolen television may be found – e.g., vehicle, closet, rooms. In the event a police officer discovers narcotics in a small drawer or box, a place a television set will not be found, a suspect can move to suppress that particular evidence since the police exceeded their permissible scope from the judge who limited the search to areas where a television may be discovered.

Searches While on Probation / Parole

If one is placed on probation after being convicted of a crime or they were released from California state prison and on supervised parole, all search and seizure rights are substantially gone, but not entirely. The rational for revoking a person’s Fourth Amendment rights is to rehabilitate a person to prevent any future crime. Consequently, any search or seizure of a suspect while on active probation or parole must be for rehabilitative purposes – a term loosely defined. Therefore, a police officer cannot conduct a search of a parolee or one on probation if the purpose is for harassment or the search and or seizure is deemed arbitrary and capricious. Furthermore, if a police officer is unaware of a suspect’s probation/parole status at the time of a search, subsequent information does not attenuate the unlawfulness of the initial search or seizure because the officer was unaware of the suspect’s probation / parole status to begin with.


Dan was driving at 2:00 a.m. and he was the only car on the road. A police officer observed Dan driving and thought he looked suspicious. The police officer conducted a traffic stop on that basis. The officer approached Dan and asked if he could search [his] car for drugs. Dan agreed and allowed the police officer to search his car later discovering drugs and a scale. In this case, Dan’s defense attorney would file a motion to suppress the evidence on the basis of an unlawful traffic stop in violation of Dan’s Fourth Amendment right. The police officer was not armed with reasonable suspicion that Dan was committing any criminal activity (not even a traffic violation) and simply based their opinion on the fact that Dan “looked suspicious.” Because the initial traffic stop will be deemed unlawful, all evidence, including the drugs and scale will be suppressed and inadmissible. Therefore, the prosecutor will be unable to proceed and the case will be dismissed.

Police officers knock on Dan’s door. Dan answers and the police explain that Dan is being investigated for selling drugs. The police officers ask if they can search around Dan’s apartment. Dan says, “Yes, but you cannot search the kitchen.” The police officer’s conduct an extensive search of the premises, including the kitchen. They discover a kilo of cocaine and multiple digital scales in a kitchen cabinet. Dan is arrested for possession of a controlled substance with the intent to sell. In this case, Dan’s defense attorney would move to suppress the evidence because it was discovered in violation of Dan’s specific terms limiting the scope to all areas except the kitchen. As a result, the drugs and scale will be suppressed and deemed inadmissible and the prosecutor will be unable to continue.

Contact Us for a Free Consultation

If you or a loved one has been arrested or charged with a crime, contact an Orange County Criminal Defense Attorney at the Law Offices of John D. Rogers. Call us today to schedule a free confidential consultation concerning your rights and defenses.

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