Unreasonable Search and Seizures Under California Law

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Unreasonable search and seizure of suspect’s home


Motion To Suppress Evidence (PC 1538.5)

The most common challenge to a search warrant is known as a motion to “suppress evidence” under California Penal Code 1538.5. Our experienced criminal defense lawyers at Wallin & Klarich can file this motion to do either of the following:

  • Recover seized evidence, or
  • Exclude seized evidence from being permissible in court.

One of our criminal defense attorneys may file an “unreasonable search and seizure” motion under PC 1538.5 based on any of the following facts:

  1. The warrant is insufficient on its face
  2. The property or evidence obtained is not that described in the warrant
  3. There was no probable cause for the issuance of the warrant
  4. The warrant was served illegally
  5. There was any other violation of federal or state constitutional law

California’s Knock-Notice Rule

search warrant
Unreasonable search of suspect’s car

Pursuant to California Penal Code 1531, an officer of the law may use force to enter your home, car or place of business to execute the search warrant, only if, after notice of his authority and purpose, he/she is refused entry. This is known as the California knock-notice rule.

Examples of when the knock-notice rule has been violated include, but are not limited to:

  • When the officer announced his presence, but failed to state his purpose;
  • Where the officer simultaneously announced his presence and forced entry without giving the homeowner opportunity to comply or refuse, or
  • When the officer entered the home to secure it while the warrant was being obtained.

Exceptions To California’s Knock-Notice Rule

The following are some of the most common exceptions to the knock and announce requirement:

  • Consent: if someone in the home consents to the officer’s entry, the officer doesn’t need to proceed with knock-notice requirements.
  • Public places: knock-notice serves to protect personal privacy. There is no privacy right in a public place.
  • Exigent circumstances (meaning “time is of the essence”): law enforcement may use forced entry without giving knock-notice to “liberate” another officer, or him/herself, during the execution of the search warrant. In addition, the “knock-notice” requirement can be waived if the office can show that evidence was likely to be destroyed by the occupants of the home if they were to have provided “knock-notice”.

Motion To Quash Or Traverse A Search Warrant In California

A motion to “quash and traverse” challenges the affidavit that the judge relied on in issuing the California search warrant. A motion to traverse challenges the truth of the affidavit. A motion to quash challenges the sufficiency of the affidavit (that is, even assuming the facts are true, whether they rise to the level of probable cause).

If any part of the search was unlawful, any discovered evidence will likely be excluded by the judge. A successful motion means that evidence cannot be used against you in a trial and may result in the prosecution offering to reduce or even dismiss your criminal charge(s).

Speak To Our Attorneys If You Have Been Subject To A Search Warrant

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Contact one of our experienced criminal defense attorneys today

If you’ve been subject to a search warrant, it is vital that you contact an attorney at Wallin & Klarich immediately. Any lawfully seized evidence may be used against you in a criminal case. If any part of the search was unlawful, the attorneys at Wallin & Klarich can file a motion to suppress evidence pursuant to Penal Code Section 1538.5. If that motion is granted by the judge, the evidence will not be allowed to be used in court against you.

With offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, the criminal defense attorneys at Wallin & Klarich have aggressively protected the rights of their clients for over 40 years. We have the knowledge and experience to help you win your case.

Call (877) 4-NO-JAIL or (877) 466-5245 today for a free consultation. We will be there when you call.

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