October 22, 2015


This article discusses SEARCH AND SEIZURE LAWS.  Click on the links below to go directly to your topic of interest.


A search and seizure motion is one of the most important ways to defend a criminal case Los Angeles Superior Court.  If won, the court will throw out the evidence against you.  Without evidence, the DA will have to dismiss your case.  If the stop is illegal, if won, the court will dismiss your DUI or dismiss your criminal case on their own motion.

In California, Search and Seizure Rights (found in the 4th amendment to the US Constitution) are codified in the Penal Code Sections 1538.5.  The 4th Amendment gives us the right to be free from unreasonable searches and seizures.   That means that any police contact is presumptively illegal.  An officer who wants to search a person can do so after he gets a warrant.   Without a warrant, a police stop is presumed illegal.

Yet, an officer can stop a car (or a person) if he has “specific and articulable facts” that “criminal activity is afoot”.  A “hunch” is not enough for reasonable suspicion.  This language is from Terry v Ohio, a famous 1968 US Supreme Court case.  There are also many exceptions to the search warrant: (such as)

    • A Search after you agree to be searched (we fight this all the time)
    • A Search Incident To Arrest
    • Automobile Exception
    • A Search While In Hot Pursuit
    • Inevitable Discovery (Nix. v. Williams 467 U.S 431, and People v. Hughston 168 Cal.App.4th 1062))
    • Exigent Circumstances
    • Inventory Search (once the car is impounded cops try to hide their search as an inventory search but often do not provide lists of other items in the car)


For example, a stop of a vehicle must be based on objective evidence that a person will engage in criminal activity.  (Brown v. Texas).   The subjective state of mind of the officer is not considered to decide if a search and seizure took place (Scott v. US 436 US 128).  A police officer who does not see a traffic violation can’t stop your car – except when he has some other information regarding you like a call that describes your vehicle.  But if you are in a hospital and the police officer smells alcohol, an officer can decide to draw your blood even if you are unconscious.   We however fight those cases because the Supreme Court limited police authority to draw blood in Missouri v. McNeely.


We try to fight your case through Search and Seizure motions in almost every case.  This way, your chances of beating Los Angeles DUI or Los Angeles Criminal case are much better!  A typical format for a search and seizure motion that we file is based on a case of Wilder, and is a very basic and general motion.  This type of Search of Seizure motion simply alleges that there was a warrantless search and challenges the prosecutors to justify it.  We prefer to do it this way because it is the prosecutor’s burden to prove that there was probable cause to pull you over, to draw your blood, to search your house or to do any other types of search.  It is best to do it this way because all police searches without a warrant are presumed illegal.

The factual determination of the judge at a hearing must be supported by substantial evidence – which means that the magistrate’s findings must be “reasonable, credible, and of solid value…” (People v. Ayon (2022) 80 Cal.App.5th 235).

Sometimes we see prosecutors oppose motions for search and seizure because they do not provide sufficient description of the theory of the search and seizure violation.   This line of reasoning is based on  People v. Williams (20 Cal 4th 119), where all 7 justices of the Supreme Court agreed that a defendant needs to have some level of specificity in his motion to give notice to the prosecutor of the sort of evidence the prosecutor needs to produce.  But the Supremes did not require much: only that the defense raises the prima facie case that the search or seizure was warrantless.  Once the Defense raises the issue, the People have to present evidence of justification for warrantless search or seizure, usually relying on the exception to the warrant requirement.  The defense can then argue the inapplicability of the exception to the warrant requirement or respond with specific objections.

EXAMPLE: A defendant was pulled over after a 911 caller said that the driver was “weaving”.  The police located that driver and pulled him over without seeing any violation of the law.  The defense files a basis “Wilders” motion for search and seizure but fails to state that they are challenging the veracity of the phone call made to police by the 911 caller.   The Prosecutor might be win this motion without having a 911 caller testify.  If, on the other hand, the Defense states in their motion that they are challenging the veracity of the 911 call, the police cannot win this motion unless they have the 911 caller testify.

Here are some important cases in no particular order.


As discussed, often, Los Angeles DUI attorneys would file a basic Wilder’s motion, and after People rest, argue in closing all applicable 4th Amendment Issues.


In Williams, the Supreme Court unanimously reversed the Court of Appeals holding which denied the appeal from the trial’s court denial of PC 1538.5 motion.  (Williams pleads guilty after the search and seizure motion was denied for a plea bargain offer of 6 years but specifically preserved his rights for an appeal.)  Williams holding also settled a dispute arising out of Wilder and Manning. In Manning, the court held that cases, not in conflict with each other and overturned several cases (including Britton), that tried to extend Manning and differentiate it from Wilder by arguing that the defense needs to raise specific issues in their pleadings.

HERE ARE THE FACTS OF WILLIAMS: (1) The Sheriff’s Department stopped a pick-up truck that was under surveillance for narcotics involvement.  (2) The basis for the stop was pre-textual because despite observing a vehicle code violation, the deputy who initiated the traffic stop called for a backup prior to what looked like a minor vehicle code violation (calling for backup 15 minutes prior to observing the truck making a right-hand turn).  (3) The driver produced a California Identification Card instead of a Driver’s License, which was expired.  (4) The investigators decided to tow the truck (per CHP policy when drivers do not have valid California Driver’s License); but, during or prior to towing, conducted an inventory search of the truck and found several packages containing methamphetamines.  (5) The inventory search was stopped once the drugs were found – indicating it to be a ruse for “rummaging for evidence”.  

So, every time you have a stop with “backup” arriving to assist the investigation – YOU MUST FIND OUT IF THE COPS CALLED FOR BACK UP BEFORE THE STOP – a clear indication that the stop was pretextual.  How do you do it?  By requesting CAD (computer-aided dispatch) logs.  There you can see if the officer called for backup before the stop and WIN your Los Angeles DUI case!

Los Angeles Criminal Defense Attorney finds that a lot of police inventory searches are ruses and cops are simply finding a reason to look for evidence.  Los Angeles Criminal Attorneys should file a search and seizure motion on any “inventory stop”.  The reason for that is most police will stop inventory of the items after contraband is found – evidence that police could be lying about the search and this is not an inventory search!  Also, most police will not list all items in a car during an inventory search – this is also how Los Angeles Defense Attorney can show the judge that the police are not doing an inventory search!  Stopping the inventory after finding contraband or failure to inventory miscellaneous items in the inventory search of the vehicle is a red flag that the inventory search is just a pretext to look for evidence.

So, if on a mundane traffic violation, you have the police come with backup – you have that Wiliams situation.  Here, we don’t need to go into details of this complicated topic but also an inventory search must-have police policy procedure as to how to conduct it.  IE (1) what is listed (2) what happens to it (3) who is notified etc.  This is more known as Wells’s problem after the famous Wells case.

Here is a famous quote from another case: “The point of the 4th amendment, which is often not grasped by zealous officers, is not that it denied law enforcement the support of the usual inferences which reasonable people can draw from evidence.  Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime…” Johnson v. U.S 12948 333 U.S. 10. 

In Wells  – because there was no procedure for opening closed suitcases/containers in the trunk of a car – the evidence was suppressed.   As the court says, “inventory search can not be a ruse for a general rummaging in order to discover incriminating evidence“.

Here is another search and seizure issue that often comes up in Los Angeles DUI cases: what if you forgot to mention an issue but you want to argue it now?  Does a failure to raise an issue during the search and seizure motion stop the criminal defense attorney from raising it on appeal?

–>The courts held that the criminal defense attorney during the search and seizure motion must:

  1. State that there was no warrant and
  2. State why the search was unreasonable (that is why the exception does not apply!)
  3. It is the prosecutor’s duty to prove the exception to the warrant requirement (such as that the evidence would be ultimately discovered by lawful means etc.).

Because of efficiency, the court will not require defendants to file motions disproving every exception to the warrant requirement.

However, if the issue was not objected to, discussed, or otherwise brought to light in the trial court but was only brought up the first time on appeal, the defendant is bared to raise it at that point.  Thus, as long as the criminal defense attorney discusses in his moving papers all applicable theories, or during an argument in court (such as was the case in Manning), the specificity requirement is met.

As always, for a detailed analysis of your case, or if you want just to chat, please contact Los Angeles DUI Attorney at (818) 921-7744 to discuss your Los Angeles DUI or your Los Angeles criminal case with a top Los Angeles drunk driving attorney and a top Los Angles Criminal Defense Attorney.


As mentioned, the 4th Amendment to the U.S. Constitution protects against government intrusion by prohibiting “unreasonable searches and seizures”.  It applies to detentions and arrests which are considered “seizures”.  A person who walks down the street is protected by the 4th amendment just like a person who is sitting in his house.  The rules are different, but the general principle is the same.

Moreover: the “search” clause, applies not only to searches of bags or clothes but also to intrusions into the human body, such as forced blood draws to obtain alcohol levels or prove that drugs are in your body.  They will use this evidence against you in court.  I recommend you fight this

If you do: ask what was the probable cause to stop you or arrest you.  If no probable cause — the case gets thrown out.  Even if there is probable cause, a search warrant must be obtained unless there is an exception to the warrant requirement.  As always, the burden is on the State, so, once the defendant alleges a violation of the 4th Amendment, the DA will have to produce evidence that the police had probable cause and have a warrant exception.

Recent case law shows that Los Angeles Criminal Defense Attorney can now win your case when the cops find incriminating evidence when the search is based on a reasonable belief that you were on probation but the officers did not verify that as a condition of probation you could be searched. (People v. Rosas (2020) Court of Appeals Second District Div. Six). 

For instance, if an officer detains a driver after only smelling alcohol, there is a “search and seizure” motion you can fight with the help of a Los Angeles DUI attorney,  where the officer has to testify to his training and experience as to why this is a sufficient basis for an arrest.  Often, one police agency detains a driver and then calls CHP, which is well known for extensive DUI training.  CHP then completes the DUI investigation and arrests the DUI driver.  Because the first officer  (the detaining officer) did not conduct a DUI investigation – he must provide a reason for probable cause.  Waiting for a second officer can be prolonged detention – this is a basis to win your DUI case.   A situation like this sounds to us like an insufficient basis for a DUI investigation.   There is a very complicated body of law regarding prolonged detention and you must call us if you have this issue.  Let Criminal Defense Attorney Los Angeles help you now.


Often, Los Angeles DUI Attorney hears from potential clients that it took a long time to complete the DUI investigation.  A delay in the investigation would be a clue to Los Angeles DUI attorney that a stop can be challenged and your Los Angeles DUI dismissed.  This delay is important because if the delay is unreasonable, the detention is illegal and the subsequent investigation is illegal.

Another way for a Los Angeles DUI attorney to dismiss your DUI Los Angeles based on prolonged detention is to verify that the police officer who pulled you over is the same officer who does Los Angeles DUI investigation.  This often happens when City Police or Sheriff’s Department Deputy pulls over a driver but then calls CHP to do a DUI investigation.  Because CHP officers get a lot of training in DUI investigations, other cops will often call CHP for DUI arrest.  CHP even created a DUI manual to help do DUI investigations and sell this manual.  Los Angeles DUI Attorney often uses the CHP manual to show that police are not following their own guide.  Calling CHP to complete a DUI investigation is often creates a delay problem, which a Los Angeles DUI attorney can use to dismiss a DUI.  This is true when it takes time for the CHP to arrive to do a DUI investigation later, the stop can be illegal and may be suppressed.

In a 2022 California case of People v. Ayon, the defendant was pulled over for an infraction and the cops decided to detain him because he “acted aggressive”.  The cops pulled over Mr. Ayon as part of the pending drug investigation.  After he was pulled over, the cops waited 14 minutes until the drug-sniffing dog has arrived.  The dog alerted the officer to the existence of drugs 19 minutes after the stop.  The court decided that this is prolonged detention and reversed the trial court’s ruling by suppressing the drugs.

Generally, the police is not allowed to extend the detention for reason unrelated to the purpose of the stop.  This is because “A seizure for traffic violation justifies a police investigation of that violation” only.  Under Rodriguez v. US (2015) 575 U.S. 348, 354, a traffic stop may not last longer then is necessary to effectuate that purpose.   “A police stop exceeding the time needed to handle the matter for which the stop was made violated the Constitution’s shield against unreasonable seizure”.

Other federal cases point out that a police stop cannot be longer than necessary to conclude the reason for the stop (Florida v. Royer (1983) 460 U.S. 491, 500).  California cases also follow the same rationale.  In People v. Gorak (1987) 196 Cal.App.3d 1032, 1038, the court held that law enforcement must employ procedures designed to “rapidly” exonerate the innocent and discover the guilty.  Waiting for another police officer to arrive to conduct a DUI investigation is a violation of this rule.

After the stop, the police can inquire about driver’s license, run warrants, or check insurance.  However, detaining the driver to allow another police officer to arrive and conclude the investigation is not permitted.  For that reason, if you are arrested for a DUI in Los Angeles and are interested in fighting your case, please contact our office.

Warrantless DUI Searches


Many DUI cases involve Illegal search and seizure.  Blood is often drawn Illegally because:

  1. The consent is invalid
  2. There is no reason why the officer did not get a warrant
  3. The blood draw was done not in a medically approved manner (causing pain, inflammation, multiple draws, etc).

Until recently, the prosecutors and police relied on cases like People v. Trotman (262 Cal. Rptr. 640) to justify forcing blood draws in DUI prosecutions.


  • Gary Trotman caused a head-on collision on Sierra Highway in Antelope Valley killing one man.  After the collision, he was taken to a hospital where, while he was readied for emergency surgery, he had his blood drawn by a nurse under instruction by a police officer and without his consent.  This was an example of a warrantless DUI search that Los Angeles DUI lawyers know how to fight.  Blood results obtained this way can no longer be used to prosecute a DUI in Los Angeles.


In Trotman case, his DUI attorney tried to suppress the results of the blood-alcohol test analysis based on the 4th amendment argument and illegal search and seizure.  His DUI attorney lost the motion, plead Trotman guilty, and appealed the loss of the search and seizure motion.   In his appeal, Trotman’s DUI attorney relied on the 1972 decision by the California Supreme Court in People v. Superior Court (Hawkins) (6 Cal.3d 757) – where the search and seizure of blood were suppressed in very similar circumstances.  Trotman’s Court of Appeals declined to follow Hawkins’ decision because they believed that it fell within an exigency exception to the warrant requirement.  The court provided 4 reasons why a warrantless DUI search was ok in Trotman’s case.

    • First: the passage of time that would eliminate alcohol was the reason the court permitted Illegal search and seizure.
    • Second: unless the blood would be drawn right away, the defendant (who was getting ready for surgery) would not be available for a period of time and the blood alcohol would dissipate.
    • Third: the intrusion was minimal.
    • Fourth: the test was performed pursuant to the accepted hospital procedure.

Trotman old history now!  In Missouri v. McNeely, the Supreme Court clarified its 1966 decision in Schmerber and overturned Trotman and any other California decision that interpreted Schemrber to mean that blood decipation is a reason to force blood draw.  No longer cops are permitted to blood draw only because the blood alcohol level dissipates over time.


Often a traffic stop will result in a search of a vehicle.  The 4th amendment permits brief investigatory vehicle stops (People v. Cortez 449 U.S 411) But, when such an investigation happens, the driver can be arrested for a driving offense (such as Driving Under the Influence or Driving without (or with a suspended license), and, a search of the vehicle can result in contraband being found – causing either the driver to be charged with an additional offense or causing a passenger to be charged with possession of the contraband.  During such a traffic stop, the police officer has to articulate a reason for suspecting the presence of contraband or weapons (in other words – it can not be a hunch as explained by Terry v. Ohio))

But, in any traffic stop, the police may search your person and car based on the exception to the requirement of obtaining a warrant.  This exception is called the “automobile exception” to the warrant requirement and is based on several high-profile cases from the United States Supreme Court (Maryland v. Dyson, the United States v. Ross, etc.).  The exception to the warrant requirement is based on the Court thinking that there is a lower expectation of privacy in automobiles because of the mobility of vehicles – ( allowing for easier removal of contraband).   Police can even be permitted to search some containers found in the car (e.g. bags or purses) even when it clearly does not belong to the owner, as long as there is probable cause and as long as they comply with other requirements.

In 2020 the Supreme Court, In Kansas v Grover decided that the police can pull over a car when the registered owner of a car has his license suspended.  That is true even when the police do not know who is the driver and do not see any violations of CVC.  They called it “reasonable inference” that a person with a suspended license drove the car.  The trend in the US is the loss of 4th amendment rights.    

We are here to help you.  Call a Los Angeles DUI lawyer or a Los Angeles criminal defense lawyer.  DUI Attorney Alex Andryuschenko will give you a free consultation and help you figure out how to use a search and seizure motion to get a dismissal of your DUI case.  Sometimes the prosecutor will agree to dismiss the case or the judge will be convinced to suppress the evidence and require the dismissal of all charges.

If you are arrested – the first step is to contact a lawyer who knows how to win your DUI case using motions and is familiar with different Search and Seizure issues.  When you are faced with a DUI prosecution in Los Angeles, call Los Angeles DUI attorneys –  our attorney will fight for you.  Our Los Angeles DUI and criminal defense attorney has a reputation for aggressive representation that gets things done.  And we do it cheaply.  Quality representation at an affordable price is our motto.

Los Angeles DUI Attorney

 Call us at (818) 921 7744 to talk to one of the best DUI attorneys in Los Angeles.


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