January 10, 2014 By Wallin & Klarich

The Fourth Amendment protects individuals against unreasonable searches and seizures. However, Fourth Amendment protection applies only to unreasonable interaction between you and the police officer involved with a seizure of your person or your property. If the Fourth Amendment does apply in your case, it may be possible under California Penal Code 1538.5 to file a motion to “suppress evidence.”

Our experienced criminal defense lawyers at Wallin & Klarich can file this motion and potentially exclude evidence against you from being admissible in court.

Physical Force or Show of Authority


For a seizure to occur, the officer must through physical force or show of authority, have restrained your freedom of movement. A seizure through a show of authority can be difficult to recognize but generally occurs when a reasonable person would not believe he was free to leave. Some key factors include:

  • The officer being in uniform;
  • The officer standing near his patrol car;
  • The officer gesturing in a manner that compelled you to stop.

Was the Seizure Reasonable?

Once it has been determined that your interaction with the police officer was a seizure, the Fourth Amendment applies and now it must be determined whether the seizure was reasonable. Reasonableness requires specific articulable suspicion, which means specific and object facts indicate that the person detained was involved in some criminal activity. Hunches or merely stopping a car to check the driver’s license or registration are insufficient. Furthermore, the race of a person will never qualify unless there are additional identifying characteristics
Examples of factors the court looks at to determine if a person was legally stopped include:

  • A car leaving the immediate area of a burglary late at night;
  • A defendant exhibiting suspicious behavior in a high crime area and running from police;
  • A defendant matching the suspect’s description that included details of their sex, height, age, attire and race.

If a stop has been determined to be unlawful, the Fourth Amendment requires that any evidence obtained as a result of the stop must be suppressed. Because there are some situations that allow evidence to be admissible despite a Fourth Amendment violation, you should call an experienced criminal defense lawyer at Wallin & Klarich if you believe your Fourth Amendment rights have been violated.

But I’m on Probation and I am Subject to a Search Condition

Even if you are on probation and subject to a search condition, there are situations where a search or seizure by the police will be unlawful. The strongest cases arise from situations in which the probation search condition was discovered after the unlawful search occurred. For example, if the police lack reasonable suspicion, the police cannot compensate for that lack of initial suspicion by later discovering that you are on probation and subject to search. Moreover, officers cannot seize a defendant in the hope that something might turn up.

Call the Criminal Defense Attorneys at Wallin & Klarich

If you have been subject to a police stop or search, it is vital that you contact an attorney at Wallin & Klarich immediately. Any lawfully seized evidence may be used against you in a criminal case. If any part of the search or seizure was unlawful, the attorneys at Wallin & Klarich can file a motion to suppress evidence pursuant to Penal Code Section 1538.5. If that motion is granted by the judge, the evidence will not be allowed to be used in court against you. In many cases when the court grants a motion to suppress evidence, the District Attorney is unable to proceed and dismisses the entire case.

With offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, the criminal defense attorneys at Wallin & Klarich have aggressively protected the rights of our clients for over 30 years. We have the knowledge and experience to help you win your case.

Call us at (888) 280-6839 today for a free consultation. We will be there when you call.

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