Under the California Constitution and the Fourth Amendment to the U.S. Constitution, individuals are protected against unlawful searches and seizures by law enforcement. That means that a police officer cannot arrest you, search your person, search your property, or seize your property unless he has probable cause to do so.

Probable Cause
Probable cause is a state of facts that would lead a person of ordinary caution and prudence to believe and conscientiously entertain an honest and strong suspicion that the person to be arrested is guilty of a crime. People v. Ingle (1960) 53 C2d 407, 412, 2 CR 14.

Stated more simply, it is a reasonable belief that a crime has been committed or is about to be committed. A reasonable belief requires more than mere suspicion by the police officer. The following passage helps to put the true meaning of probable cause into perspective:

“Probable cause may not be established simply by showing that the officer who made the challenged arrest or search subjectively believed he had grounds for his action. As emphasized in Beck v. Ohio [379 U.S. 89, 85 S.CT. 223 (1964)]: ‘If subjective good faith alone were the test, the protection of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects” only in the discretion of the police.’ The probable cause test, then, is an objective one; for there to be probable cause, the facts must be such as would warrant a belief by a reasonable man.” Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.3 at 140 (2d. 1992).

Arrest Warrants
An arrest warrant is a written order, issued by a magistrate, directing a police officer to arrest a designated person charged with a crime and bring him or her before a judge or magistrate. Police officers routinely request arrest warrants by providing a magistrate with any one of the following:

»	Filing a complaint and a sworn statement setting forth the facts that led the officer to believe that the defendant has committed a crime.
»	A written declaration of probable cause.
»	An oral statement of probable cause made under oath to a magistrate.

The officer must allege underlying facts that will be used by the magistrate to make an independent finding of probable cause. However, the magistrate cannot simply accept the officer’s conclusion that the person has committed a crime. Rather, he must independently evaluate the persuasiveness of the facts provided by the officer. The magistrate may only issue an arrest warrant if he is persuaded by the evidence presented that there is reasonable cause to believe that the accused has committed a crime.

Search Warrants
A search warrant is a written order, signed by a judge, authorizing a law-enforcement officer to search a particular place for items of personal property and to bring it before the judge.

Law-enforcement is not always required to obtain a search warrant. There are circumstances under which law-enforcement may search and seize items of personal property without obtaining a warrant. However, if law enforcement’s search and seizure later turns out to be illegal, then all evidence obtained as a result of the search must be suppressed as required by the Fourth Amendment of the U.S. Constitution. Even if illegal items are found during an illegal search, such evidence cannot be used against an accused.

To challenge the legality of the search by law-enforcement, a suppression motion must be filed under Penal Code section 1538.5. Read below for a more detailed discussion of suppression motions.

Suppression Motion (P.C. 1538.5)
California Penal Code section 1538.5 provides that the defense may move for return of property of suppression of any tangible or intangible evidence obtained as a result of an unlawful search and seizure.

A suppression motions, also called 1538.5 motion, is a powerful tool used to ensure the protection of a person’s privacy rights. It is available to the defense in misdemeanor and felony cases. Most commonly, such motions are made in drug cases where law enforcement seizes illegal drugs during the course of an unlawful search. However, its application is not limited to drug cases. It is routinely conducted in various cases involving the illegal search and seizure of any type of personal property by law enforcement.

The form of the motion is typically in writing, setting forth the facts, the circumstances, and the law relating to the case. The attorney can draft the motion in various ways, depending on his strategy. He may decide to draft the motion with specific details in order to inform the judge about the violation. Alternatively, he may be vague in his written motion in order to catch the prosecution off guard during the actual hearing. After the motion is filed with the court and the prosecution, the attorney must scheduled for a formal hearing that may involve cross examination of police officers and other witnesses.

In misdemeanor cases, the motion must be heard prior to prior to trial. In Felony cases, the motion may be litigated at the preliminary hearing, or after the preliminary hearing but prior to trial.

If you are facing charges based on evidence that was illegally obtained by law enforcement, contact a search and seizure lawyer at California Criminal Defense Center to schedule a free consultation. We have successfully litigated suppression motions in misdemeanor and felony cases throughout Southern California courts.

You may schedule a private consultation at no cost by completing the Free Consultation form located on the right column of this page.  Alternatively, you may call us toll free at 1-800-438-4529.