Prolonged Detention: How to Dismiss Your Los Angeles DUI or Los Angeles Criminal Case using a motion under PC 1538.5

February 12, 2023

The US Constitution prohibits illegal searches and seizures. In California, this constitutional prohibition is found in Penal Code section 1538.5, making it a statutory violation to conduct a search or seizure in violation of the US Constitution. If a person is searched in violation of California Penal Code 1538.5, his Los Angeles Criminal Defense attorney or Los Angeles DUI Attorney should file a motion to suppress the evidence. If the motion is granted, you will get a dismissal of your DUI in Los Angeles. If the motion is granted, you will get a dismissal of your criminal case Los Angeles.

Here we discuss a unique situation where the police stop your car, but instead of starting an investigation, delay the investigation. Sometimes, the police will delay the investigation because they are too busy to start the investigation and significant time passes until the police is ready. Other times the police who pull over a driver are not used to doing the type of investigation needed. Because the case law and the factual scenarios can be complicated, please contact Los Angeles Criminal Defense Attorney and Los Angeles DUI Attorney to talk about your case.

For example, often, city police is not as experienced in Los Angeles DUI investigations as the CHP. Because of that, when a city police officer pulls over a driver and suspects alcohol impairment, they will call CHP to take over Los Angeles DUI investigation. This delay in investigation can be used to get your Los Angeles DUI dismissed because the police cannot detain you longer then necessary to address the issue with the stop. This usually means that police officer suppose to pull you over, write a citation and let you go and not wait until another officer arrives.

The same logic can be applied to searches of other property and person, because, when the police is waiting for a warrant to search your property your are remain detained for their convenience.

Pennsylvania v. Mimms (1977) 434 U.S. 106

Mr. Harry Mimms was pulled over because his license plate was expired. Police asked him to step out of his car and when he did, they observed a bulge under his jacket. After police saw the bulge, the police patted down Mr. Mimms and found a 38-caliber gun. Mr. Mimms was convicted of two counts of illegal possession of this gun and appealed to the state court. The Supreme Court of Pennsylvania suppressed the gun, however, the Supreme Court of the United States reversed, holding: finding that ordering someone to step out of the car is not a significant (de minimis) intrusion of freedom.

Even though, the majority opinion permitted the search, several justices wrote dissenting opinions arguing that the majority gave too much discretion to police. Because the stop was for an expired license, the search for the gun was illegal and based on a “made-up” reason for continued detention.

BOTTOM LINE: After Mimms police can order persons stopped for minor traffic violations (or even an expired license plate) to exit the vehicle. The court held that this is not a violation of the right against search and seizure due to the officer’s safety concerns.

This case is important considering the concept of “prolonged detention” because in Mimms the driver was asked to exit the car and thereby the time necessary to write out a citation extended the police contact. The argument made by the defense attorneys is that this delay is an intrusion on freedom and a violation of a constitutional right. The court did not agree and this was a problem for recent case law limited police’s ability to delay drivers, such as, Rodriguez v. US

Rodriguez v. US (2015)

This decision was by Judge Ginsburg!

In Rodriguez, the Supreme Court suppressed prolonged detention holding that a police stop exceeding the time needed to handle the matter for which the stop was made violated the United States Constitution’s shield against unreasonable seizures.

The stop in Rodriguez’s case was based on “weaving” into the shoulder. This short weaving into the shoulder was to avoid a pothole. Based on that police issued a warning ticket to Rodriguez and then asked to have a K9 (dog) walk around the car to smell for drugs. Rodriguez said no and the police officer ordered Rodriguez to exit the vehicle and asked for a K9 unit to be dispatched to their location. K9 found the drugs. The delay in getting the K9 unit to Mr. Rodriguez took 8-9 minutes.

  • SIDE NOTE: Police do not have to ask permission to have a god sniff a car for drugs because such “dog sniff” is not a search within the 4th amendment to the US Constitution as explained in Illinois v. Caballes (2005) 543 U.S. 405 and People v. Mayberry (1982) 31 Cal 3d 335 (dog sniffing luggage in airport). Yet, even Caballes rejects dog sniffing “if it delays the detention beyond the time reasonably required to complete the mission of the traffic stop“.

Rodriguez filed a motion to Suppress the Search. The district court denied the motion finding that this 8-9 minute delay was de minimis intrusion on freedom. This reliance on the “de minimis” rule is based on Mimms – however, now the Supreme Court suppressed the drugs despite Mimms.

Did Rodriguez overul Mimms? 38 years after Mimms can the police still order a driver out of his car even when it delays a driver longer than necessary to issue a citation? It is hard to say without an express ruling by the US Supreme Court, which Rodriguez did not do. So, it seems that Mimms is not overturned because the overriding concern of the court in Mimms was officer safety, whereas in Rodriguez, it was clear that the “dog sniff” was done to find drugs and the delay had nothing to do with the officer’s safety. For that reason, we think that a detention to find evidence of a crime is illegal, and a detention to assure an officer’s safety is not.

So, if a delay in conducting an investigation is illegal, then asking a person to step out of his car (or to sit in the police officer’s car) is a violation of the 4th amendment and requires suppression unless it is done to protect the officer. In other words, a dog sniff is “outside of the mission of the traffic stop“, and cannot be unreasonably long.

Thus, if there is a delay in the investigation, such as you were asked to step out of the car and then the police waited for another officer to arrive, especially if there is a dog unit (K-9) involved in the search, you must contact Los Angeles Criminal Defense attorney to see if your case can be dismissed due to a violation of your rights against search and seizure.

People v. Vera (2018) 28 Cal. App. 5th 1081.

In this case, a vehicle was pulled over for a traffic violation. As one police officer was writing a citation, another police officer used a dog to sniff the vehicle and found drugs. Thus, the dog alerted the police to drug presence while the citation was still written out. Here, it does not appear that involving a dog in this search increased the time needed to complete the “mission of the traffic stop“.

PEOPLE v. LOPEZ 8 Cal. 5th 353, 363 fn. 4

The court will not consider it a “prolonged detention” when the officer checks criminal history check through an in-car computer terminal or radioing dispatch with a person’s information.

PEOPLE v. GYORGY (2023) _____

This case is from Orange County Superior Court (case # 18NF2747). The court held that there is a violation of the 4th amendment protection against unreasonable search and seizure when a police officer detours from a traffic stop mission by conducting the dog sniff and inquiring into matters unrelated to the traffic violation to the point “beyond the time reasonably required to complete the mission of issuing a ticket for a traffic violation” (in violation of Rodriguez)

Here, Mr. Gyorgy was pulled over for a traffic violation. The police officer who pulled him over questioned Gyorgy about his criminal background and eventually asked Gyorgy to step out of the car and sit on the curb to wait for the second officer’s arrival. While the second officer was arriving, the first officer informed Gyorgy that he was going to use a K9 unit to search the truck. The dog found meth and upon further search, officers found a gun. The court took an interest in the officer never writing a citation for the traffic violation in this case. Thus, if you were pulled over for a traffic violation, but the citation for a traffic violation was not issued by the police, think PROLONGED DETENTION and a violation of your 4th amendment rights against search and seizure.

Question to ask the officer in this case



It is however also permissible for a person to be asked to exit a vehicle for officer safety during a traffic stop.

But here the officer detoured from the traffic stop’s mission almost immediately. The officer did not check if Gyorgy had a valid driver’s license, did not check registration, did not check valid insurance, and because of that the officer detoured from the traffic stop. It took 5 minutes for the officer to tell Gyorgy the reason for the stop. The officer also started to inquire into areas unrelated to the traffic stop, such as if Gyorgy was a sex or narcotic registrant. Also, the defendant did not act in a manner for the police officer to believe that narcotics were involved (no evidence of impairment). For all those reasons, the court held that this was a violation of the 4th amendment against search and seizure and suppressed the evidence found during the search.

So, as you can see, motions are based heavily on facts! If the officers were delayed a few minutes until the dog arrived, Vera‘s search would be illegal. If the officer wrote Gyorgy a traffic citation, Gyorgy search would not be illegal. If the delay in Lopez had not been to check his criminal record through a dispatch but to have a more experienced officer arrive at the scene, Lopez’s criminal case would have been dismissed. This means that facts of any police stop have to be developed, through discovery if necessary first. This is why you need the help of a Los Angeles criminal defense attorney and must call Los Angeles Criminal Defense Attorney to understand what are you facing and if you can get your Los Angeles criminal case or Los Angeles DUI case dismissed. If you were stopped by police and your investigation was delayed until other police units arrived, or there was a K9 unit involved or you were subjected to police detention, the evidence of wrongdoing should be suppressed and your Los Angeles Criminal Case or Los Angeles DUI case dismissed. Call us if want to talk to the Los Angeles DUI attorney or criminal attorney Los Angeles at (818) 921-7744 or text us at (323) 464-6424.

waste of timepoornot badgoodexcellent (No Ratings Yet)

Comments are closed.