Fourth Amendment Rights Under The United States Constitution
The Fourth Amendment is an important protection in the Constitution and is used all the time in criminal defense in Los Angeles and throughout the country – even nationwide. The main thing that I see that the Fourth Amendment has value for criminal defendants is that it protects against unreasonable searches and seizures.
That covers a lot. That covers people being stopped on the street and searched, their vehicles being searched, their homes being searched, or their cars being stopped.
So, whenever you're arguing that the police have done something illegal as far as seizing something, getting in somebody's house, stopping them for no reason on the street, you're going to be using the Fourth Amendment.
Unreasonable Searches and Seizures
Basically, what it says—and there have been a bunch of cases that have come out after the Fourth Amendment—is that people are entitled not to be bothered by the police. They're entitled not to be unreasonably messed with stops, searches, etc. In other words, the police basically have to have some probable cause.
They have to have reasonable suspicion that criminal activity is afoot, and that means they actually have to see something that amounts to criminal conduct.
In other words, a hand-to-hand sale of narcotics on the street would be an example. If they can get surveillance and see criminal activity going on, maybe a witness gives them information about a house that dope is being sold from, and they go and check it out themselves, and they see criminal activity.
They put together a search warrant. Maybe they see a guy on the street, and the guy sees them and starts running from them. He's in a high-crime area. There are all sorts of ways that criminal activity can appear, but somebody just driving down the street shouldn't be pulled over by the police.
Somebody just walking down the street should be pulled over by the police. The police shouldn't be able to just come up to somebody's house, knock on the door, go in, and start searching all over the place. People shouldn't be stopped in their cars and their cars being searched.
Police Violating Your Legal Rights
People have a Fourth Amendment right against unreasonable searches and seizures. The remedy for that is that if the police violate the Fourth Amendment—they violate people's rights regarding searching and seizing items—then that evidence must be suppressed. I recently had a case in downtown Los Angeles in the criminal court building—210 West Temple.
Police pulled my client over in a car, got him out of the car, searched the whole car, found narcotics, and arrested him. He's looking at two to three years in prison. But the problem was, in the middle of the preliminary hearing, I said hey, do you guys have a dash cam of that stop because you're claiming my client made an illegal right turn?
They said absolutely, we do. Well, why have the prosecutors yet to turn it over? So, we stopped the case in the middle of the preliminary hearing. The preliminary hearing was continued. The information was turned over to me – sure enough, my client did not make an illegal right turn, and the police illegally searched his car. They had the whole thing on dash cam and the judge ended up dismissing the case.
Let me tell you something, though. It wasn't without a fight. The Fourth Amendment and its protectors have been beaten up just like every other Constitutional Amendment.
The prosecutors and judges have a lot of power. If they can figure out a way to try to help get people who they think are committing crimes, they will make all sorts of exceptions to the Fourth Amendment and the stops and various things for police safety and all sorts of things that they're coming up with.
Giving Consent to Search
If there's exigent circumstances like chasing somebody. The biggest one they just crushed people on is consent. Someone signs a consent form showing that they agreed to have their house searched, their car searched. That's it. Consent is like poison to a criminal defense attorney. As soon as you consent to something that's it. They're allowed to do it.
So, the bottom line is this. Suppose you have a Fourth Amendment issue. It's complicated. You have to get in front of a criminal defense attorney who knows the ropes, who's local to the court where your case is pending, and who knows how to deal with these Fourth Amendment attacks – both at the state and federal level.
I've been doing this for twenty-five years and have had a lot of success. I know when we can win a case and when we can't. Sometimes, there's a case that's on the fence. It's a gray area, so you have to do the investigation, the work, and the preparation.
Then, you have to file the motion and argue the motion in front of the judge. You have to bring up the case law. Sometimes, your client has to testify. Sometimes, other witnesses have to testify.
The police witnesses, who are usually the ones for the prosecutors, have got to be cross-examined very effectively if you want to have any chance of winning a Fourth Amendment motion and getting all the evidence suppressed related to the stop, the search, or whatever happened that caused the person to be charged with a criminal offense.
Making Incriminating Statements
A lot of people like to throw the Fifth Amendment around like they know what it is and how it works. Unfortunately, it's not as clear and easy as one might think if you don't have a legal background. Basically, you can use the Fifth Amendment if the prosecutor or somebody else is trying to get you to testify and you might say something that would incriminate yourself.
For example, somebody is being called as a witness and they also might have committed a crime. They or their attorney on their behalf can plead the Fifth and basically say I'm not going to say anything because I'm fearful that I might incriminate myself.
But listen to that language. You actually have to be in jeopardy of getting criminally prosecuted. You can't just plead the Fifth because you want to or because you're a witness in a case and you don't want to testify against your spouse, for example, because they are accused of committing domestic violence against you, so you want to plead the Fifth.
If you're not going to say anything to incriminate yourself, the judge is not going to let you do that. They're going to order you to testify anyway.
The bottom line is that before you can plead the Fifth in a case and assert your Fifth Amendment rights to protect yourself from making an incriminating statement, you're going to need to have grounds to do so.
You're going to need to consult with an attorney, and that attorney must be able to say to you yes; if you did testify in this case, there's a chance they could ask you questions about an area that would get you to incriminate yourself possibly. Then, you would have the legal grounds to assert your Fifth Amendment rights.
Right to Remain Silent
The bottom line is that if the police are trying to interrogate you and ask you questions, you absolutely have the right to remain silent, and if you remain silent, then they can't use that against you in a court of law. It's when people start trying to talk that they get themselves in a bad position because, a lot of times, they say things that are inconsistent with the evidence.
Then they want to plead the Fifth Amendment, and by then, it's too late. They've already done or said something that has incriminated them and put them in a bad position. Anybody stating that the prosecutors are going to later use in a criminal case is usually the best evidence the prosecutors have.
It's very difficult to refute when people say things that incriminate them because most times, people aren't going to say anything that incriminates them. After all, obviously, they don't want to put themselves in a bad position, get themselves arrested, or get themselves in trouble.
Suppose the police or prosecutors have a statement where you've actually said something against yourself that is a very powerful piece of evidence. I've had some big murder cases where clients have made statements, and the prosecutor will try – if it's videotape – they will use the video.
That will be their primary evidence because it's a wonderful thing for both the prosecutor and a defense attorney to have a taped statement from somebody who helps your side. Whether it helps the people of the state of California prosecute somebody for a crime, or whether it helps the defense prove that the main witness in the case is not credible and is unreliable.
So, any statement you make that contradicts them makes them look bad, or attacks the elements of the case is wonderful for either side.
So, the bottom line is this – before you start talking about pleading the Fifth Amendment right either in court or to your attorney or the prosecutor, you better sit down with your criminal defense attorney.
Tell them what's going on. Explain the scenario. Explain the context of why they're trying to ask you questions.
Then that criminal defense attorney can obviously give you sound advice as to whether or not you actually can plead the Fifth Amendment, how to do it, under what circumstances, whether it's actually in your best interest to plead the Fifth in Los Angeles, and what the other things you're going to do are in order to protect your rights, your freedom, your interest in any criminal case in Los Angeles, California.
