Motion Practice and Unlawful Searches

Motion practice is an essential part of criminal defense practice. A successful motion can sometimes mean that the government can no longer present certain evidence and may be forced to dismiss specific charges or the entire case. The attorneys at Nolan Barton Olmos & Luciano aggressively litigate meritorious motions, including motions to suppress unlawfully obtained evidence (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 (Penal Code section 1424), motions to dismiss for speedy trial violations (Jones/Serna motions), motions for change of venue (Penal Code sections 1033 et. seq.), motions regarding trial and pre-trial publicity and motions to disqualify judges (Code of Civil Procedure sections 170.1-170.6.)

Search Warrants 

The Constitutions of the United States and the State of California bar unreasonable searches and seizures. The Fourth Amendment to the United States Constitution applies to government searches and seizures—not searches 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 or place of residence always requires a warrant or the free and voluntary consent of the individual in control of the property. A search warrant, obtained pursuant to Penal Code sections 1523 et. seq., 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. (Penal Code section 1525.)  

The attorneys at Nolan Barton Olmos & Luciano have successfully litigated motions to suppress where law enforcement has improperly searched individuals' persons or vehicles in cases involving DUIs, drug possession and sales, cultivation of marijuana, possession of weapons and child pornography.

Motions to suppress unlawfully obtained evidence can be brought on several bases, including that the judge issued a warrant without the necessary showing of probable cause. (Penal Code section 1538.5.)  This type of motion seeks to suppress evidence seized as a result of an improperly issued search warrant. If the court grants the motion and suppresses the evidence, the prosecution cannot use the evidence against the defendant. Attorneys at Nolan Barton Olmos & Luciano have successfully litigated motions to suppress evidence seized as a result of invalid search warrants in prosecutions for possession of child pornography (Penal Code sections 311.1, 311.2, and 311.11, for example), possession for sale and cultivation of marijuana (Health and Safety Code section 11358), real estate fraud (Penal Code sections 484-487) and weapons charges (Penal Code section 245(a)(1)). Often, if the court grants the motion to suppress, the prosecution will have insufficient evidence to prosecute the case and will be forced to dismiss some or all of the charges.

Warrantless Searches

Every individual has the right to enjoy the use of public places without interference by law enforcement. Therefore, to justify detaining someone, 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. Otherwise, the detention is unlawful and any evidence gathered as a result of the detention is subject to suppression under California and federal law.

The attorneys at Nolan Barton Olmos & Luciano have successfully litigated motions to suppress where law enforcement has improperly searched individuals' persons or vehicles in cases involving DUIs (Vehicle Code sections 23152(a), and (b)), drug possession and sales (such as Health and Safety Code section 11351), cultivation of marijuana and possession of weapons.

Miranda Rights

Under the Fifth Amendment to 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 Miranda warnings to someone undergoing custodial interrogation, 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 his or her 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 person has been advised of their Miranda rights, any statement made by a defendant cannot 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 a knowing and intelligent waiver. Attorneys at Nolan Barton Olmos & Luciano have successfully moved to suppress statements in cases involving charges of murder (Penal Code section 187), economic espionage (18 U.S.C. section 1831), petty theft (Penal Code section 484(a)), domestic violence (such as Penal Code sections 243(e) and 273.5(a)) and DUI (Vehicle Code sections 23152(a) and (b)).

Speedy Trial Violations

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 custodial time prior to trial and 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. (Penal Code section 1382.)

A motion to dismiss can be brought when a defendant's right to a speedy trial has been denied or violated. A defendant can seek an order terminating a criminal action because of a delay in the prosecution of a case. The violation of an individual's right to a speedy trial is usually raised in a pretrial motion to dismiss. Attorneys at Nolan Barton Olmos & Luciano have successfully litigated numerous motions to dismiss for violations of an individual's right to a speedy trial.

Motions to Recuse the Prosecution 

In California, prosecutors cannot have any extraneous conflicts which render them unable to proceed with a criminal case in an impartial manner. Oftentimes, this type of conflict can result from a personal connection to a case—the prosecutor may know the alleged victim, for example. There are a range of other reasons a particular District Attorney should be removed from a case.  Penal Code section 1424 allows individuals to ask the Court to remove an individual District Attorney or, in certain cases, the entire District Attorney's office. If the entire office is barred from handling a case, the Attorney General will take over the prosecution. Attorneys at Nolan Barton Olmos & Luciano have successfully litigated motions to recuse the prosecution. (For example, see Senior Partner Thomas Nolan’s role in the California Supreme Court case People v. Eubanks (1996) 14 Cal. 4th 580.)