Drug and Criminal Defense in San Diego
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What Exactly Is Unlawful or Illegal Search?

The Fourth and Fourteenth Amendments require law enforcement to obtain a search warrant before it conducts a search. This includes the person, their property, and residence. This is critical in a democracy because it prevents a “government state” from intruding on the rights of its citizens without due process. Under the Fourth Amendment, the government must obtain a search warrant supported by probable cause (individualized suspicion of wrongdoing), issued by a neutral and detached magistrate, and describing the place and items to be searched. If the warrant does not detail this information, it will not be issued because it is considered defective.  

When law enforcement conducts a search without a warrant, they have not presented their facts to a judge to determine the probable cause and other requirements of a warrant. Instead law enforcement relies on its officers – and their training and experience – to make these decisions. This is problematic because we allow law enforcement, not the courts, to determine, initially, if a search is lawful.

Evidence Suppressed:

The consequences of an illegal search may devastate the district attorney’s case. If the evidence is absolutely necessary for a conviction, for example, the amount of drugs found, BAC from a DUI arrest, or firearms confiscated, the district attorney may not be able to prosecute the case. If the evidence is not admissible at trial, this may lead to the charges being dismissed.

Exceptions to Search Warrants:

There are some exceptions to the search warrant requirement. Searches incident to a lawful arrest, vehicle searches, temporary detentions, and consent are all searches that may be conducted without a warrant. It is important to remember that all of these exceptions require a detailed understanding of the facts and law to see if they apply. This is why it is important to hire an experienced criminal defense attorney.  

How to Challenge the Unlawful Search:

Suppression motions (PC 1538.5) are filed and argued to challenge the admissibility of evidence that was obtained without a warrant. Most drug cases, ranging from simple possession, 11350(a), HS 11377(a) to under the influence, HS 11550, to possession for sales, HS11378, HS11351.5, require a motion to suppress.

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

If you were searched without a warrant, and the result led to criminal charges or a criminal investigation, contact my today.  I will provide a free, confidential consultation.