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What happens when a search is unconstitutional?

Oftentimes, law enforcement will conduct a search of a person, their property, or residence without a warrant. A search without a warrant is presumptively illegal. To obtain a search warrant, law enforcement must justify the reasonableness of the search – that is, it must be supported by probable cause (individualized suspicion of wrongdoing) and issued by a neutral and detached magistrate. If the search is not reasonable, it is unconstitutional.

California Penal Code Section 1523 provides the following:

A search warrant is an order in writing, in the name of the

people, signed by a magistrate, directed to a peace officer,

commanding him or her to search for a person or persons, a thing or

things, or personal property, and, in the case of a thing or things

or personal property, bring the same before the magistrate.

Exclusionary Rule:

What happens to evidence obtained from an unlawful search? If the search was conducted without a warrant and without a warrant exception, the evidence seized may be excluded under the Exclusionary Rule. This legal theory holds that evidence obtained through an unlawful search or seizure (violation of the Fourth Amendment) will be inadmissible, for the most part, in a criminal prosecution.

An experienced criminal defense attorney may file a Penal Code Section 1538.5 suppression motion to challenge evidence obtained from a search conducted without a warrant. If the motion is granted by the court, the evidence is generally inadmissible.

Suppression motions are often made when an arrest was related to a drug charge; for example, HS 11377(a), possession of methamphetamine. However, a 1538.5 motion may be applicable for other drug charge allegations: 11550(a), HS11378, HS 11379, HS11350, HS11351.5, HS 11359, HS 11360, HS11173, HS11357(b) HS11357(c).

Suppression motions may also be an issue in DUI arrests, (VC 23152(a)(b) and VC 23153(a)(b), because challenging the stop, detention, arrest, and chemical tests results are paramount for a successful DUI defense.

If you were arrested or charged with a criminal offense resulting from a search without a warrant, contact me today. I will provide a free, confidential consultation.