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Penal Code 1538.5: Unreasonable Search & Seizure

One of the best ways to win your case without going to trial is to win a search and seizure motion.  Search and seizure motion in California is known as a motion under PC 1538.5.

California Penal Code section 1538.5 does not allow police to search you or your car without a good reason.

→When the police do not have a good reason to stop you – you have an “unreasonable search”, which is a violation of the 4th amendment to the U.S. Constitution, California Constitution, and California Penal Code statute 1538.5. 

In a situation like this, you must file a motion to suppress the evidence that the police are trying to use at trial to prove that you are guilty.   If the evidence is thrown out, the police cannot proceed forward on your case and it is likely to be dismissed.

A motion for illegal search and seizure is a great way to fight your case if you are arrested for drunk driving in Los Angeles.  In California, drunk driving is a very serious crime that can be charged a felony or a misdemeanor.  if you are arrested for a DUI in Los Angeles, you will be given a citation to come to Los Angeles Superior Court for your case, or, in some cases, brought to court in custody.

Criminal cases are entitled to many protections that are not available for non-criminal cases.  This post discusses some protection of the 4th amendment to the US Constitution, commonly known as the right against “unreasonable searches and seizures”.  It is the law that stops police from searching anyone or anything or seizing property or a person without a good reason.  For example:

(1) police can not stop a car without seeing a violation of traffic law –  such as speeding.

Procedurally, Los Angeles DUI attorney will file documents in court that will ask the court to throw out the results of the alcohol test and anything else police saw when they saw you being drunk. When that happens, the government cannot go forward with their case and is forced to dismiss your DUI case.  After the motion is filed, the Los Angeles DA or City Attorney has to file a response to the motion.  Then,  and then have a hearing. During the hearing, the police officer who arrested you will testify and try to explain to the judge the reason he stopped your car. When he is unable to give a good reason to the judge, the court will order “suppression of the evidence”. “Suppression of the evidence” means that the judge does not allow the police to say things like “he smelled of alcohol” or “his blood-alcohol level was above the limit”. Sometimes not all evidence is suppressed, for example, only the results of the PAS test can be suppressed. Los Angeles DUI attorneys are experts in knowing how to fight criminal cases using search and seizure motions, also known in California, as a motion to suppress evidence under Penal Code 1538.5.

Another way a motion under Penal Code 1538.5 can be used is to suppress blood test results.   

How?  By showing that there is no consent to submit to the blood test.  Or, by showing that cops told you that you had to do it.  A demand from the police is coercion and courts don’t like it.  This has been litigated on the federal and state level in such cases as Schmerber v. California, Missouri v. McNeely, Birchfield v. North Dakota, etc.

Our firm specializes in defending Los Angeles DUI cases through motions.  If cops told you you had to do something – you might be able to win your case.  Also, if the police did not explain the consequences of refusing the test, you can get it suppressed.  You going to need an aggressive attorney to help you win your DUI case.

EXAMPLES FROM CASE LAW:

• To preserve the right to appeal, if your case is a felony, and if you had argued a search and seizure motion at the preliminary hearing and lost, you must refile the search and seizure motion in the trial court.  This would come up in a situation where you were able to plea bargain or plead open to the court at the trial court level but are intending to appeal the Search and Seizure loss under PC 1538.5 (People v. Lilienthal (1978) 22 Cal.3d 891.).  The rationale for this decision comes from the fact that a trial judge did not commit any errors, so to appeal a plea to him would be unfair.  The errors, if any, were committed by the preliminary hearing magistrate and the trial judge can’t be in error.

• In Re F.E. problem: “not all screeching of tires is a violation of the statute”.  This case involved reckless driving (California Vehicle Code 23109).  The court discussed what is reckless driving.  Will any screeching tires allow cops to pull you over? There, F.E. was driving recklessly and the judge found him guilty. He appealed and the court found that even though F.E., he was guilty; not all tires “breaking traction” is a violation of the law (67 Cal. App. 3rd 222).  This is one of the great cases to argue when defending a Los Angeles DUI case through a search and seizure hearing.

• Harvey-Madden problem: can be used to suppress illegal arrest, detention, or an illegal search.  For the Harvey-Madden problem to come up, there has to be a tip that may be unreliable and given to a dispatcher or another officer who then gives it to the arresting officer.  For example, if someone calls 911 and tells the 911 operator that he saw a drunk driver, who is then arrested, the evidence of the driver being drunk may be suppressed if the government cannot show that that civilian tip is based on reliable information (and is not a lie or exaggeration).  In a Harvey-Madden situation the prosecutor will attempt to call as a witness, the person who called the police, otherwise, the basis for the police stop becomes inadmissible hearsay.  Los Angeles DUI Attorney’s practice is to run search and seizure motions in almost all Harvey-Madden problems.  In many ways, defending such Los Angeles DUI case is easier when the police officer observes a Vehicle Code Violation.

GETTING A DUI DISMISSAL WHEN DA FAILS TO SUBPOENA THE RIGHT PERSON

• Motions to Continue Search and Seizure hearings.
  • As a person who was arrested for a DUI, you have a right to ask the police to justify a reason for the stop.  However, under a 2010 case of People v. Ferrer,  (184 Cal App 4th 873) if the prosecutor failed to produce a necessary witness at the properly noticed search and seizure hearing, the trial court could not dismiss that criminal case (or could not dismiss your DUI).  A recent change in the law now allows a trial court to dismiss a DUI case or to dismiss any criminal case if the prosecutor has no good reason why they did not get the right witness to testify at the search and seizure hearing.  In People v. Dajah Brown (2021) Santa Clara county the Court of Appeals held that the trial court has the discretion to dismiss a criminal case when the People could not produce a proper witness (who could justify a warrantless stop).  The appellate court disagrees with Ferrer and does it in a very well-articulated manner.
  • The disagreement between the two courts of appeal decisions appears to be scheduled to be reviewed by the Supreme Court.

If you believe that you were stopped without a good reason, please call our office at (818) 921 7744 to talk to Los Angeles DUI Lawyer directly during the day or after hours. We are always waiting for your call and hope to help you defend your DUI.

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