This is a big thing that I think is confusing to people charged with crimes in Los Angeles County, and that is, they think there's this whole slew of motions that work in every single case. So, they'll hire an attorney. The attorney will talk a big game, and then they'll say, my attorney hasn't filed one motion.
I'm finally firing that attorney. That's the end of it. Then they come to me. They're not happy with the attorney. They can't believe what's happened, and I look at them and say, okay, well, what motion do you think should be filed in your case? They have no idea. That's up to you. You have to figure that out.
A few motions can be filed to get my case dismissed. I say, wait a minute. Let's look at your case. Could you tell me what you're charged with and what evidence is against you? Then, we can discuss some of the motions that might be filed to help you.
Deciding Whether a Motion Even Applies in Your Case
But in some criminal cases, and I'd probably say the vast majority of them, no motions apply to the case. The person is charged with a crime. The prosecutors have evidence, and you could either refute that evidence and show that it's a situation where the prosecutors have not proved their case, or you can't.
If you can't and there are no motions to be filed, then the bottom line is you don't file any motions in your criminal case. So that's one of the first things you have to decide: whether a motion even applies to your case, whether it even makes sense that you would file a motion in your criminal case.
That's one of the things that I do. I can give you some examples of the types of motions that can be filed—it's not an exhaustive list because there are literally tons of different motions that could be filed in Los Angeles criminal cases.
So, you have to decide what motion makes sense for your case and whether or not a motion will work. You obviously have to have a high probability of success if you want to be successful with a motion.
Motion to Suppress Evidence – PC 1538.5
Here are some of the motions that I file in criminal cases when they make sense. One is a Penal Code Section 1538.5 motion. That motion says the prosecutors have some evidence and obtained it illegally against my client. I don't think the judge should be able to use that evidence against my client because it wasn't legally obtained.
So, I'll file a motion to say they illegally stopped my client either on foot or in a car and say, look after they legally stopped that person, they were able to get this information or get this evidence against my client, and since it was an illegal stop, you should find it was an unlawful stop and not let them use that illegally-obtained evidence against my client.
Another thing I will argue is that it was an illegal search, and we can discuss it under Penal Code Section 1538.5, saying that you shouldn't have been able to search my client's vehicle. It would be best if you couldn't search my client's home.
You didn't have probable cause to do that. In other words, you have to show as a law enforcement officer pursuant to the Fourth Amendment to the Constitution that before you search my client's property, my client's car, my client's home, my client's person, you have to show that you have a reason to do that and it's a justifiable reason.
We're not living in Russia or one of these countries where you don't have any rights. We have a Constitution of protection and certain inalienable rights that cannot be violated; if they are, your criminal defense attorney has to challenge that.
Searching Your Home Without a Search Warrant
If they search your home and they don't have a search warrant and they don't have some emergency circumstances, anything they find in the house cannot be used against you. That's it.
So, if they get a search warrant to search your home, your attorney will have to evaluate whether or not they had probable cause. Did they have any reason to search the house? Was there any evidence of criminal activity?
Did they surveillance your home to see if illegal activity was going on? Did they have some informant that was inside your home that can say you're selling drugs out of there? You had guns, or you have a methamphetamine lab in there.
Whatever the case may be, it doesn't matter. They still must have probable cause to get that search warrant. They're going to have to go to a judge and submit a declaration under penalty of perjury as part of their search warrant application and they're going to have to ask the judge to grant the motion.
They have to show the judge that there is a reasonable probability they'll actually find something criminal inside your house, that there is some sort of criminal activity going on there, or that there are some sort of fruits of some criminal activity.
If they can't do that, they can't get the search warrant. If they get the search warrant and they don't provide probable cause, we're going to challenge and attack that search warrant.
Motion to Dismiss Criminal Case – PC 995
There are all sorts of emotions. You could file a 995 motion under that Penal Code Section after a preliminary hearing in a felony case in Los Angeles. You can say, you know what, judge? The judge who heard the preliminary hearing testimony in this case did not have enough information or enough evidence to hold my client to answer for those charges.
And to send the case to the trial court, that judge made a mistake, and now, Your Honor, we would like to ask you to correct that mistake. Could you please give this 995 motion, say there was not a prima facia case for each and every charge in the complaint or information that's been filed against my client, and so, the case should be dismissed? That's a 995 motion, which is a motion to dismiss a criminal case. That's applicable after a preliminary hearing.
Speedy Trial Motion (Serna)
Sometimes we file what's called a Serna motion which is basically a motion that say, you guys waited too long to file this case in the first place. It's commonly known as a speedy trial motion. Now we can't find defense witnesses because you waited over a year, for example.
Now, people's memories have faded. They can't even remember the event that you're prosecuting my client for. Why did you wait so long to prosecute it? You've poisoned the defense's case by waiting that long, and Your Honor, grant this motion.
This case should be dismissed. They should have filed it a year ago, and since they waited so long, you need to grant this particular motion now.
I can go on and on. There are all sorts of motions in criminal defense. But here's the thing: They don't apply to every case. You have to give me the facts of your case before we can determine whether a motion is applicable. Sometimes, they just have the crime on videotape, and there's no motion. That's it—the crimes on video. We have to negotiate that crime.
Pitchess Motion
So, not every motion needs to be filed in every criminal case. I just did a case where I had to file six motions because the police were cheating, lying, and illegally stopping my client.
The police illegally searched his car, and we also filed what's called a pitches motion, where we're getting all the wrong information about the police—other people have complained about their tactics, lying, and falsifying police reports.
So, we're going to file that motion because we want to find out if there are other people to whom the police did the exact same thing they did to my client. I need to know that because I'm going to use that information against the police officers.
But that doesn't apply to every single case. Sometimes, the police aren't the witnesses in the case. Occasionally, other people are witnesses in the case. The police are just doing their job and arresting the person. You don't need a pitch motion in those circumstances.
So you have to come in and sit down with me. This is a very personal thing, and it's very important to you. You've got everything on the line here. So come in and sit down and meet face to face with me, and then we can get our strategy together.
Then, we can see whether any motions apply to your case. If they make sense and if they're going to help you, of course, we're going to file the motions. If they don't make sense, then no, we're not going to file motions and make a fool of ourselves, waste court time, and get nowhere.
That's not what we're trying to do. We're trying to do what makes sense in your criminal case so you can get the best possible result.
