Fourth Amendment Rights Under The 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 are 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.
Basically, what it says – and there’s been a bunch of cases that have come out after the Fourth Amendment – it says people are entitled not to be bothered by the police. They’re entitled not to be unreasonable messed with stops, searched, 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 spells itself out where 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’s 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.
People have a Fourth Amendment right against unreasonable searches and seizure. The remedy for that is, if the police violate the Fourth Amendment – they violate people’s rights in reference to searching and seizing items – then that evidence must be suppressed. I recently had a case downtown Los Angeles in the criminal court building – 210 West Temple. Police pulled my client over in a car, get him out of the car, search the whole car and find narcotics and arrest 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 dash cam of that stop because you’re claiming my client made an illegal right turn. They said absolutely we do. Well, why hasn’t it been turned over by the prosecutors? 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, judges have a lot of power and 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. 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. If 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 in 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. I know when we can’t win a case. Sometimes there’s a case that’s on the fence. It’s a gray area so you have to do the investigation. You have to do the work and 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 to win a Fourth Amendment motion and get all the evidence suppressed related to the stop, the search or whatever happened, that is causing the person to be charged with a criminal offense.
A lot of people like to throw the Fifth Amendment around like they know what it is how it works. Unfortunately, it’s not as clear and easy as one might think if you don’t have the 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 themselves also might have committed a crime. They or their attorney of 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, 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 possibly incriminate yourself. Then you would have the legal grounds to assert your Fifth Amendment rights.
The bottom line is, 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 giving a statement that the prosecutors are going to later use in a criminal case, that’s usually the best evidence the prosecutors have because it’s very difficult to refute when people say things that incriminates them, because most times people aren’t going to say anything that’s going to incriminate them because, obviously, they don’t want to put themselves in a bad position and get themselves arrested and get themselves in trouble.
If 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 video tape – they will use the video. That will be there primary evidence because it’s a wonderful thing for both the prosecutor and a defense attorney to have a taped statement from somebody that 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 have that contradicts them or 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 to the prosecutor, you better sit down with your own criminal defense attorney. Tell them what’s going on. Explain the scenario. Explain the context of why they’re trying to ask you questions and 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 LA.
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