Motion Practice and Unlawful Searches

Motion practice is an essential part of criminal law practice. The success of particular motions can sometimes mean that the government can no longer successfully prosecute a criminal case against an individual and may be forced to dismiss the case. The attorneys at Nolan Barton & Olmos aggressively litigate meritorious motions, including motions to suppress evidence obtained unlawfully (Penal Code section 1538.5), motions to dismiss (Penal Code section 995), motions to exclude evidence obtained in violation of Miranda rights, motions to exclude evidence obtained through coercion, motions to recuse prosecutors, motions to dismiss for speedy trial violations, motions for change of venue, motions regarding trial and pre-trial publicity, and motions to disqualify judges. 


The Constitutions of the United States and the State of California bar unreasonable searches and seizures. The Fourth Amendment applies to government searches and seizures, not those done by private citizens or organizations not acting on behalf of the government. Absent exigent circumstances, any law enforcement entry into an individual’s home always requires a warrant or the free and voluntary consent of the individual in control of the property. A search warrant authorizes law enforcement to search specified places or seize specified items upon a showing of probable cause. To obtain a search warrant, law enforcement must first prove to a magistrate or judge that probable cause exists that evidence of a crime will be found in the location the warrant seeks to search. 

Motions to suppress unlawfully obtained evidence can be brought on the basis that there was not probable cause for the judge to issue a warrant. A motion to suppress seeks to suppress the evidence that was seized as a result of the improperly issued search warrant. If the motion is successful and the evidence is suppressed, the evidence cannot be used against an individual in a criminal case. Attorneys at Nolan Barton & Olmos, LLP have successfully litigated motions to suppress evidence seized as a result of search warrants in prosecutions for possession of child pornography, possession for sale and cultivation of marijuana, real estate fraud, and weapons charges. In many instances, if the motion to suppress is successful, the prosecution will have insufficient evidence to prosecute the case and will be forced to dismiss it. 


Every individual has the right to enjoy the use of public places without interference by law enforcement. Therefore, in order to justify a detention of an individual, an officer must be aware of specific articulable facts that activity related to a crime is taking place and that the individual detained is connected to that activity. The detention is otherwise unlawful and any evidence gathered as a result of the detention is subject to suppression under California and federal law.

Law enforcement agents are not required to obtain a search warrant to search a vehicle which they have stopped if they have probable cause to believe criminal activity is taking place. Further, police are not required to obtain a search warrant to perform a limited search of an individual for weapons if they have a reasonable suspicion to justify that intrusion. Once an individual has been lawfully arrested, the arresting officers do not require reasonable suspicion, probable cause or a search warrant to perform a complete search of the individual.

The attorneys at Nolan Barton & Olmos have successfully litigated motions to suppress in cases where individuals have been stopped and they or their vehicle has been searched in DUI, drug possession and sales, cultivation of marijuana and weapons cases. 


Under the Fifth Amendment of the United States Constitution, an individual has the right not to incriminate him- or herself. The United States Supreme Court has held that, in order to comply with the Fifth Amendment, an individual who is in custody and being interrogated must be provided their Miranda warnings.

If law enforcement does not provide a defendant who is undergoing custodial interrogation their Miranda warnings, the prosecution may not use any statements derived from that custodial interrogation in the prosecution’s case in chief at trial. Being in custody does not necessarily mean that an individual is in handcuffs or at a police station. Whether a person is in custody for purposes of Miranda is determined by whether a person has been deprived of their freedom in a significant way. If law enforcement officers have not complied with their obligations under Miranda, a defendant may bring a motion to suppress the statements. If the motion to suppress is successful, the statements cannot be used against a defendant in the prosecution’s case in chief.

Even if a defendant has been advised of their Miranda rights, any statement made by a defendant may not be introduced into evidence at trial unless the statement was made voluntarily. A coerced confession may not be used against a defendant. It is the prosecution’s burden to demonstrate that an individual knowingly and intelligently waived their privilege against self-incrimination. A motion to suppress can be brought on the basis that either the waiver of Miranda rights was not voluntary, or that it was not knowing and intelligent. Attorneys at Nolan Barton & Olmos have successfully moved to suppress statements in murder, economic espionage, homicide, petty theft, domestic violence and DUI cases. 


The Sixth Amendment to the United States Constitution guarantees individuals accused of crimes the right to a speedy trial. This right is intended to ensure that defendants are not subject to unreasonably lengthy custody prior to trial and to ensure that the state or federal government brings a case to trial within a reasonable length of time. A delay in the investigation or prosecution of a criminal matter may violate a defendant’s Constitutional or statutory speedy trial rights.

Motions to dismiss can be brought when a defendant’s right to a speedy trial has been denied. A defendant can seek an order terminating a criminal action because of the delay in the prosecution of the case. The violation of an individual’s right to a speedy trial is usually raised in a pre-trial motion to dismiss. These motions are very dependent on the facts of an individual’s case. Attorneys at Nolan Barton & Olmos have successfully litigated numerous motions to dismiss for violations of an individual’s right to a speedy trial.