Southern California Defense Blog

Today’s so-called Smart Phones hold a great deal of information that has little relevance to phone calls. As such, some argue that police should be required to obtain a search warrant before inspecting the contents of a cell phone. They submit that obtaining evidence from cell phones without a warrant amounts to a violation of the Fourth Amendment protection against illegal search and seizure.

Our forefathers lived in a time predating even the most rudimentary communications devices by over a hundred years. How they would have regarded right to privacy issues with cell phones, then, can only be speculated upon. Case precedent, interpretation of the law, and higher court rulings must be relied upon for this reason. A case from 2007 has left many with continued questions, however, about the rights of an arrestee in regard to his cell phone. The lines have been drawn, and people are divided.

The case in question involves the arrest of an individual in 2007 for purchasing methamphetamine from a police informant. Upon the defendant’s arrest officers seized a cell phone they found in his pocket. Following an unproductive round of questioning a DEA agent searched the cell phone and found incriminating evidence. The defendant was ultimately convicted, and his case was appealed.

The California Supreme Court ultimately ruled that the search was lawful, indicating, “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” The court went on to suggest that police have the right to search anything found on the defendant’s person at the time of arrest. Moreover, they do not have to conduct the search immediately. The evidence may be obtained at a later point, such as during questioning.

The implications are interesting. That your personal phone and text data can be used against you, and police do not need a search warrant to obtain them from your electronic device, suggests that warrantless searches of any electronic device are permissible. Those unhappy with the decision vow to take the issue to the U.S. Supreme Court.

If you have been arrested for a crime, it is in your best interests to hire a strong and experienced attorney. Call the Law Offices of Wallin & Klarich today for a free consultation at 1-888-749-0034.

The Court of Appeals in Los Angeles has just ruled that a visitor to an inmate has no expectation of privacy in any item that they may place in a jail or prison locker.

On September 29. 2011 the court ruled in People vs. Boulter that if you decide to place any item in a locker in a prison or jail facility it is subject to search and seizure without probable cause and without a warrant.

What this means is that if jail or prison officials locate anything that may be illegal to possess that you have placed in the locker you can and likely will be prosecuted for a crime.

As we all know it is difficult to visit a loved one in custody. There are scores of rules that you must follow and of course you are subject to search and seizure before you are allowed to visit your loved one in custody. Most jail facilities require to you remove all of your personal items and place them in a locker before entering the prison.

Our advice is be smart and do not bring anything that might get you in trouble into any prison facility. Leave all of your personal items at home or lock them securely in the trunk of your car when visiting a loved one in a jail or a prison facility. We realize that it is often very emotional when you are visiting a loved one in custody. Sometimes we might forget that you are entering a law enforcement facility and there are very strict rules that must be followed. Keep your personal items at home to avoid any potential problems.

If you or a loved one have been accused or charged with a crime, it is very important that you speak with an experienced criminal defense attorney immediately, like the attorneys at Wallin & Klarich. We have over 30 years of experience handling all types of criminal matters and can assist you in obtaining the best possible result. Call the law firm of Wallin& Klarich today at, (888) 749-0034 to speak to an experienced criminal defense attorney about your case.

(1) Where a citizen feels "free to leave" and terminate the encounter at will. Here, there has been no "detention" under the law. This falls outside the scope of Fourth Amendment protections prohibiting unreasonable searches and seizures of a person, their home, papers, and effects;

(2) Brief "seizures", which triggers Fourth Amendment protections and also allows police more authority if acting with reasonable, specific, and articulable suspicion;

(3) Arrests. An arrest must be supported by probable cause. To know and protect your constitutional rights under the Fourth Amendment, you must understand the meaning of "probable cause" and being "under arrest," and their relationship to the facts of your case.

For further details on whether your Fourth Amendment rights have been violated by police or any other criminal defense related inquiry, contact the law firm of Wallin & Klarich, the preeminent criminal defense firm in Southern California. Selection of the right law firm can often make the difference between jail and freedom in a criminal case. Feel free to contact Wallin and Klarich 24 hours a day 7 days a week at 888-749-0034 to discuss your case. Visit us at www.wklaw.com

The California appellate court has held that even though a vehicle does in fact have a temporary operating permit displayed somewhere on the vehicle, if the police officer does not see the temporary operating permit, and the vehicle does not have license plates, then the stop of the vehicle is legal. People v. Dotson ﴾3rd Dist., Nov. 30, 2009﴿ 2009 Cal. App. LEXIS 1904﴿.

In Dotson, the defendant, a convicted felon, was found to be in possession of a firearm, ammunition, and methamphetamine when a police officer stopped his vehicle. Although the vehicle had a temporary operating permit, an arresting officer had testified that at the time of the stop he saw that defendant's vehicle did not have license plates. In fact, in a dimly lit parking lot, the officer had a hard time identifying even the color of the vehicle. He saw that there were no license plates, so he made the stop. The defendant argued that the officer lacked reasonable suspicion to make an investigatory stop since the defendant’s car had a temporary operating permit attached to the rear window.

Continue reading "Police Can Legally Stop a Vehicle in California Even If a Temporary Operating Permit Attached To a Rear Window " »

In general, police must have a warrant before entering a residence. Of course, certain exceptions apply to the general rule which requires a warrant before entry. One such exception is known as the, "emergency exception." The emergency exception is often used by police and prosecutors to justify a warrantless entry. Hiring a Riverside criminal defense attorney who can identify all constitutional violations by the police may mean the difference between jail and freedom in your case.

The emergency exception contains three elements, as follows:

1. Police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property


2. The search must not be primarily motivated by intent to arrest and seize evidence


3. There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched United States v. Martinez (2005) 406 F.3d 1160.

Continue reading "Police Entry into Residence Without a Warrant - What is the "Emergency Exception" to the Warrant Requirement? (Part 2)" »

Several recent Court rulings have addressed the issue of consent entry into one's residence. The issue of lawful consent becomes more complex when dealing with a residence shared by two occupants. In Georgia v. Randolph (2006) 164 L Ed.2d 208, the court held that if two occupants are at the door and one says officers may enter and the other refuses consent to enter, then officers cannot enter unless there is some other basis for doing so.

Whenever dealing with law enforcement entry into the home, it is necessary to consult an experienced Orange County criminal defense attorney who can advise you of your constitutional rights. Fourth Amendment search and seizure violations are very common and highly relevant to the outcome your case. Identifying any and all constitutional violations may mean the difference between jail and freedom.

Continue reading "You Have Legal Rights When You Share a Residence and Refuse Police Officers Request to Search Your Home or Apartment (Part 1)" »

The concepts of "independent source" and "inevitable discovery" may serve to allow the introduction of illegally seized items into evidence. The prosecution must be able to show that the items discovered would have been inevitably discovered regardless of the illegal search or seizure.

The prosecution will try and introduce and independent source or means, satisfying the doctrine and avoiding the protections of the Fourth Amendment exclusionary rule.

Continue reading "Legality Of Stop And Search Of A Vehicle (Part 3)" »

It is the prosecution’s burden to justify a warrantless search or seizure. People v. Williams (1999) 20 Cal. 4th 119. The defendant has the right to suppress evidence when the evidence is obtained by an illegal detention, arrest, or search in violation of both the United States Constitution and Cal Pen. Code section 1538.5.

In addition, the exclusionary rule of the Fourth Amendment prohibits the admission of evidence obtained as a result of an unconstitutional search and seizure. Wong Sun v. United States (1963) 371 U.S. 471.

An experienced California criminal defense attorney will be able to tell you whether your encounter with police will be deemed a "seizure" triggering Fourth Amendment protections.

Continue reading "Prosecution's Burden to Justify a Warrantless Search or Seizure" »

In some situations, a search may be found reasonable despite the lack of a warrant. However, to establish the presence of emergency or "exigent" circumstances, there must be a showing of necessity. People v. Sutton (1976) 65 Cal.App.3d 341, 351. Specifically, at the time the warrantless entry is made, there must be an “imminent and substantial threat to life, health, or property.” Id. at 350.

Whether the requisite exigency is present to justify a warrantless entry into a home will depend on the surrounding circumstances. Courts tend to focus on apparent threats to safety and property, and the immanency of those threats. If you feel that your legal rights may have been violated you should immediately consult with a California criminal defense law firm that can help you win your case.

Continue reading "Exigent Circumstances May Justify a Warrantless Entry into One's Home" »

In Melendez-Diaz v. Massachusetts, the defendant was convicted of drug possession. 129 S.Ct. 2527 (2009). The conviction went all the way up to the Supreme Court of the United States. The Supreme Court reversed the defendant’s drug conviction because the trial court violated the defendant’s Sixth Amendment rights.

In Melendez, the trial court admitted the prosecutions certificates by laboratory analysts, stating that the material seized by police and connected to the defendant was cocaine of a certain quantity. When the trial court admitted the certificates, this prohibited the defense from being able to cross-examine the laboratory analysts who created the certificates. Because the defense was not able to cross-examine the witness on their procedures and policies, this violated the defendant’s Sixth Amendment right to confront the witnesses against him.

Continue reading "New Court Ruling Results in Drug Conviction Reversal: The Criminally Accused Have a Right to Confront the Witnesses Against Them - Part I " »

Depending upon the facts of your case, your confession and/or admission may be inadmissible if the statements were the product of an illegal search. However, the defendant must show a relationship between the unlawful search and the defendant’s statement.

Once this has been established, the burden of proof shifts to the Prosecution to show that the confession or admission was the product of an intervening independent act of the defendant’s free will.

Like many Constitutional issues, a fact intensive analysis is required.

Continue reading "Confessions and Admissions that are Product of Illegal Search are Subject to Suppression in Court" »

An officer with probable cause to search is not prevented from doing so by someone presenting a medical marijuana card or a medical marijuana prescription.

Various courts have held that, once the officer has probable cause, the officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession.

Continue reading "Medical Marijuana Card Does Not Necessarily Protect Against Vehicle Search" »

The United States Supreme Court case of South Dakota v. Operman, 427 US 364 (1976) set for the following criteria for the lawful impound and inventory of a vehicle:

1. The vehicle must be lawfully in police custody. For example, following a traffic stop or lawful arrest of a driver.


2. The inventory must be for the purpose of listing the contents of the vehicle and not for an investigative purpose.


3. The impound and inventory must be pursuant to a standard policy of the police department involved. Meaning, the impound and inventory cannot be left wholly to the discretion of the officer seeking to conduct the impound and inventory.

Continue reading "Impound and Inventory of a Vehicle (Part 2)" »

Generally, a police officer can seize any vehicle they have probable cause to believe contains illegal items or evidence of a crime. Once the vehicle has been "seized," police can then conduct a search at a police facility or impound lot. The California Vehicle Code details when a car can and cannot be impounded.

If contraband or evidence of a crime is discovered during the course of a lawful inventory search, that evidence will be admissible in court against you.

Continue reading "Impound and Inventory of a Vehicle (Part 1)" »

Numerous Court of Appeal cases have approved the police practice of “knock and talk” based entirely on an anonymous and uncorroborated tip. Recently, the California Supreme Court stated, “even if acting on an anonymous tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search” People v. Rivera, 41 Cal.4th 304 (2007).

An aggressive and experienced Orange County criminal defense attorney may be able to argue that such conduct on the part of the police violated your Fourth Amendment right to be free from unreasonable searches and seizures. An argument can be made that the sanctity of the home is threatened when police approach a residence, knock on the door, and converse with a homeowner in an effort to obtain consent to search.

Continue reading "Can Police Knock On My Front Door When Acting Solely On an Anonymous and Uncorroborated Tip?" »

An Experienced Criminal Defense Attorney Will Protect Your Right from a Warrantless Search of Your Home

Any person can call law enforcement and complain to tell them that a person is drinking and driving. If a complaint names the suspected drunk driver, law enforcement may be able to go the house of the named suspect and lawfully search the home without a warrant.

Some courts have held that these searches are lawful while other courts have held that these searches violate a person’s rights and are therefore illegal. Either way however, courts agree that an important factor to consider in determining whether the search was legal or not was whether “exigency” exists. Exigency exists when law enforcement fear that evidence may be destroyed, thus law enforcement can search without a warrant to prevent the evidence from being destroyed.

In the context of a DUI investigation, the police and prosecutors will argue that an entry into a home, even without a warrant, was necessary to preserve evidence of blood alcohol content. For example, law enforcement would argue that a warrantless entry was necessary to preserve the bottle of alcohol the suspect possibly drank from. However, this argument alone is rarely sufficient to justify a warrantless entry into a home.

Continue reading "A Drinking and Driving Complaint May Give Rise to a Warrantless Search of Your Home" »

An Experienced Criminal Defense Firm will Expose a Lack of Reliability from an Anonymous Informant

An anonymous tip, standing alone, seldom will exhibit sufficient indicia of reliability to support reasonable suspicion for an investigatory or traffic stop. An informant who provides information face-to-face to law enforcement is not considered the same as an anonymous tipster. See United States v. Romain, 393 F.3d, 63 (2004).

Officers do not have the same duty to confirm the citizen informant's information before acting on it. When information is provided to law enforcement from an anonymous tipster, police officers do not have the opportunity to evaluate personally an informant's expression, tone of voice, and mannerisms.

Continue reading "Officer's Have Heightened Duty to Confirm an Anonymous Tipster's Information" »

An Experienced Criminal Defense Attorney Knows How to Effectively Rebut this Presumption

As discussed in the blog yesterday, a person who tips officers to suspected criminal conduct is called an “informant.” A citizen informant generally gains knowledge of an alleged criminal offense by being either a witness or a victim. A citizen informant is deemed to be reliable, unless this presumption of reliability is rebutted.

Courts have held that a citizen informant providing information to law enforcement generally has a strong basis of knowledge and there is little concern for the motives behind volunteering the information. However, information provided by an informant is often inaccurate and uncorroborated. For this reason, hiring a knowledgeable and experienced criminal defense attorney is paramount.

Continue reading "Courts Give a Presumption of "Reasonable Suspicion" Established from a Citizen Informant's Statements" »

Why You Need a Criminal Defense Attorney Who Knows Search and Seizure Laws

In order to conduct a legal traffic stop, an officer must have what is called “reasonable suspicion” to stop the car. Often, officers will rely on a tip they received from someone who may know the suspect, one who may have seen the suspect engage in an illegal activity, or a person with a hunch to create the requisite reasonable suspicion. A person who tips officers to suspected criminal conduct is called an “informant.”

In order to use an informant to build reasonable suspicion, the officer must consider the reliability of the information. In United States v. Leos-Quijada, 107 F.3d 786 (10th Cir. 1997), the court stated that when information comes from an informant, reliability may be assessed by viewing the credibility of the informant, the basis of the informant's knowledge, and the extent to which the police are able to independently verify the tip.

The lower the reliability, credibility, or veracity of the informant, the more information that is required to create reasonable suspicion. Often times, in a California DUI case, the arresting officer is unable to sufficiently verify the basis for the information, or the reliability of the informant.

Continue reading "A Traffic Stop Based on an Anonymous Informant's Tip Must Be Reliable to be a Legal Stop" »