California criminal law; search warrant challenge in CA; Los Angeles Criminal Defense Challenging the validity of a search warrant in California can lead to evidence being thrown out of court and the dismissal or reduction of criminal charges.  In many drugs and weapons cases a search of a home or business is done pursuant to a search warrant.   In recent cases, medical marijuana dispensaries have been searched pursuant to a warrant and large amounts of cash and marijuana have been seized despite the dispensary lawfully operating under California law.   Many of these searches and seizures are performed both by federal law enforcement or local police and sheriff’s departments.   Most people believe that if a warrant is served  prior to a search that such search is automatically lawful and there is not much one can do to challenge the seizure of contraband including drugs and weapons.   However, once arrested after your home or business is searched pursuant to a warrant, a person should consult an experienced criminal defense attorney whether your arrest occurred in Los Angeles, Orange, San Diego or any other County in California.

 California Penal Code section 1538.5

 In California, a defendant arrested after his home or business has been searched pursuant to the warrant, can file a motion to suppress any evidence seized pursuant to California Penal Code section 1538.5.    A motion is made pursuant to California Penal Code section 1538.5 on the grounds that the search and seizure violated defendant’s rights pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, and Article I, section 15 of the California Constitution.

The motion usually always seeks the suppression of all evidence seized pursuant to a search warrant search including all items seized pursuant to or which were a fruit of the unlawful search and seizure challenged.   In many drug cases, such items may include the actual drugs themselves, guns, scales, money, client lists, cell phones and computers.    If the court grants a defendants motion to suppress none of the items seized can be used at trial to convict a defendant and in most instances an experienced criminal defense lawyer will have a case dismissed after prevailing on a motion to dismiss.

 Challenging the Search Warrant

A search warrant should only be issued on probable cause.  (U.S. Const., Amend. IV; California. Const., art. I, § 19; California Pen. Code, § 1525.)

Probable cause for a search warrant is usually set forth in a sworn affidavit by a law enforcement officer to a judge.   The affidavit must provide a substantial basis from which a magistrate can reasonably conclude there is a fair probability that the place to be searched contains contraband or evidence of a crime.  (Illinois v. Gates (1983) 462 U.S. 213, 238.)  In order to pass constitutional muster, a search warrant affidavit must contain facts that establish a sufficient nexus between criminal activity and the place to be searched.  (People v. Hernandez (1994) 30 Cal.App.4th 919;  U.S. v. Lebron 729 F.2d 533;  U.S. v. Savoca 739 F.2d 220;  U.S. v. Freeman 685 F 2d 942;  U.S. v. Lucarz 430 F2d 1051;  U.S. v. Hendricks 743 F2d 653;  U.S. v. Hove (9th Cir. 1988) 848 F.2d 137.)

In the 9th Circuit case of Hove, the final warrant application set forth facts suggesting the defendant sent threatening letters, but because of a stenographer’s error, it never linked the defendant or any suspected criminal  activity with the residence to be searched.  During the motion to quash, the trial court permitted the police to establish the error was inadvertent and upheld the warrant based on “good faith”.  On appeal, the Ninth Circuit court of appeals  reversed  stating:  “to permit the total deficiency of the warrant and affidavit to be remedied by subsequent testimony concerning the subjective knowledge of the officer who sought the warrant would, we believe, unduly erode the protections of the fourth amendment.”

An experienced criminal defense attorney must and will always examine the evidence which in most cases is the sworn affidavit in support of the search warrant and often times can find a basis to challenge a warrant not supported by the Constitutional requirement set forth by the United States Supreme Court and by California Courts.

In this case, even assuming the defendant’s business activities constituted a crime, there is nothing in the affidavit itself that establishes that the items sought would be found inside the defendant’s home.  Further, there is nothing connecting the alleged crime with the items sought in the various business locations set forth in the attached warrants.  Therefore, under Hove alone, the warrant should be quashed.

a.      The Affiant Deliberately  Or Recklessly Omitted Material And Relevant Facts Concerning The Defendant’s  Intent

Often times when a police officer presents an affidavit for a search warrant, he omits facts which he knows will not support the issuance of such warrant.   Thus, a warrant can be challenged as unlawful if one can show that the affiant (police officer) knew or should of known about the  facts which the judge should have considered in issuing a warrant but deliberately or recklessly omitted material and relevant facts from the affidavit.  (Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).   Many times the prosecutor will argue that an officer omitted facts in an affidavit for a search warrant as a mistake and made a good faith attempt to submit all facts to support a warrant.  However, if an experienced criminal defense attorney can show that a reasonably well-trained officer dealing in a similar case would not have submitted the affidavit without the information in question and would have known a magistrate would not have issued the warrant if all the facts had been known then a Judge in many cases will quash the warrant and suppress all evidence seized pursuant to the warrant.

b.      Even If The Affiant Did Not Deliberately Or Recklessly Omit Material and Relevant Information In Support of A Search Warrant, Evidence May Still May Suppressed Pursuant to A Motion Under California Penal Code section 1538.5

In  United States v. Leon (1984) 468 U.S. 897, 922, the United States Supreme Court held the exclusionary rule does not bar evidence obtained by officers acting in good faith, and in reasonable reliance on a search warrant ultimately found to be invalid.  This rule applies to warrants invalidated for lack of probable cause unless the affidavit on which it is based is ” ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ”  (Leon, supra, 468 U.S. at p. 923.)   This rule, as indicated above, gives an experienced criminal defense attorney the means to successfully challenge the validity of an affidavit in support of a search warrant even if the prosecution argues that the affidavit was submitted in good faith.   Often times in the context of searches by local law enforcement of medical marijuana dispensaries in California, the Leon  case can be successfully used as long as the dispensary is lawfully operating under the medical marijuana requirements set forth under California law.

Why Is It Crucial To Retain An Experienced California Criminal Defense Attorney To Challenge Unlawful Searches and Seizures?

 As one can see, the United States Constitution offers many protections against unlawful searches and seizures even if they are performed pursuant to what appears to be a valid search warrant.   Accordingly, if you are arrested in a drug, gun, or any other felony or misdemeanor case in California where a warrant is used to obtain evidence, you should immediately contact an experienced California Criminal Defense Lawyer to determine your rights and in many instances obtain a successful result to what can be very serious criminal charges.