Defense Strategies

Illegal Search and Seizure



There are a number of constitutional weapons / defenses that a savvy seasoned criminal defense attorney can utilize in the defense of a criminal case in Los Angeles. One such defense relates to the illegal search and seizure of a person, their property, their home or their vehicle. The police are not permitted to search anything or anywhere that they want. In order to search a home, for example, they need a search warrant. If they do not have a search warrant and they search a person’s home, then anything that they find will be suppressed as a matter of law and can not be used against the person in a criminal prosecution. However, there are ways around the search warrant requirement which should be considered.

Fortunately for all of us this is not a police state and the police actually must have a lawful reason to stop and search a person who lives is Los Angeles or anywhere in the United States for that matter. However, the police know how to bend the rules so that they can violate your rights without anyone finding out about it.  If they search your car and find drugs for example, then the judge is going to be a lot less likely to suppress the drugs that if they find nothing.  And, as you might guess, if they do not find anything, then there is nothing to suppress and there is no need for a search and seizure motion to be filed.

One good thing that has been recently happening is that because of technology, the police have been caught on video violating people’s rights across the county and this has cause the public, prosecutors and even judges to start to question them and their tactics.  This gives the defense a fighting chance to win an illegal search motion and at least been given the benefit of the doubt in a close call.  This shifting of the pendulum has been good in the world of criminal defense to help shift the balance back to the middle for criminal defendants across Los Angeles County.


First, if a person gives the police consent to go into their home in a verbal or written form, then the search would be lawful and there is nothing that particular person could do to challenge the search. This is an area of law that I have seen many issues over the years. Clients have told me that the police just forced their way into their home and asked for consent after the fact. This is not lawful, but the police will never admit it. In this scenario, they go in the home and find incriminating evidence an then have the person sign a consent to search form. Even though this is absolutely illegal conduct, the issue will be proving it.

Another way for the police to can get around the warrant requirement is something know as “exigent circumstances”. In general, this means that if there is some sort of emergency situation then this may excuse the police from obtaining a warrant. For example, if they are chasing a fleeing felon and the person they are chasing runs into a home, then the police will likely legally be able to pursue the person into the subject home in order to capture them. This does not now give the police the ability to search the entire home. However, if they see something in plain view that they can identify as criminal, then they can seize it and charge the person to whom it belongs. Another way they are sometimes able to get into a home without a warrant is if they reasonably believe someone in the home might be in danger. For example, if the police are called out to a domestic violence situation and no one will open the door, then they will likely be justified in going inside the home to make sure everything is ok with the occupants.

A person’s rights related to illegal searches and seizures comes from the 4th Amendment to the U.S. Constitution. When drafted, the 4th Amendment was designed to ensure that U.S. citizens, their homes, or effects were free from unreasonable searches and seizures by the government. Over the years, courts have interpreted the 4th Amendment to mean that searches and seizures conducted without a warrant are preemptively unconstitutional. This means that if a search is conducted without a valid warrant, it is up to the prosecution to prove that the officer or agency conducting the search had the necessary probable cause to search. Probable cause means sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with the crime. If it can be shown that law enforcement did not have probable cause, then any evidence gathered from that search can be stricken from the court and can not be used as evidence against the defendant.


Even though a vehicle is not a home, it too has protections under the United States Constitution related to not being searched without a valid legal reason. In order to search someone’s vehicle the police must have probable cause to believe that they are going to find something illegal in the car. They can not just rely on hunches or unsubstantiated tips. They need cold hard information that makes common sense to the trier of fact. For example, if they legally pull a car over for a traffic violation, and when the driver rolls their window down, to give them their drivers license, the police smell marijuana emitting from the car, then that will justify them detaining the driver and searching the entire vehicle. Call our law firm at (866) 986-2092 or fill out online contact form to schedule your free face to face consultation.