All about search warrants – Orange County criminal defense attorney

What is a search warrant?

A search warrant is an order in writing, commanding a peace officer to search a particular person or place for specific listed items and return them to court.  Right off the bat, note that a warrant only allows the police to search.  A citizen cannot obtain a search warrant.  Although a warrant is typically issued in writing, the police can get a telephonic warrant that is later followed up (following applicable statutes) with a written document and a recording of the proceedings in obtaining the warrant.  A search warrant is preferred in court, as a search done pursuant to a warrant is presumed to have been a valid, legal search.  Without a warrant, the police (and prosecution) would have to justify any search.  They would have to prove consent, exigency or one of the recognized exceptions to the necessity for a search warrant.

The police must establish probable cause to search. That means they must demonstrate, based on the facts and information they know, that evidence of criminal activity exists in the location where they want to search.  They must demonstrate a “fair probability” or a “reasonable chance” that the evidence is where they want to search.  It’s less than absolute certainty, but more than just a hunch.  The bottom line is the judge has to be persuaded that the conclusions and request to search is reasonable.

What can they do with a warrant that they couldn’t otherwise?  Intrude upon a person’s reasonable expectation of privacy and search.  It’s essentially judicially authorized probable cause and permission to search.

How do the police obtain a warrant?

Under the Fourth Amendment of the US Constitution, a search cannot be done except upon probable cause.  To obtain a warrant, the police must submit their information under oath to the magistrate (aka judge).  The officer must describe in an affidavit what their probable cause is.

Let’s use an example of a typical drug search warrant.  Let’s say a patrol officer arrests somebody for possession of drugs.  That person provides information about their dealer.  The officer could use that information and do their own surveillance of the suspected dealer’s house to see if there is a typical pattern of activity consistent with narcotics dealing (heavy foot traffic, visits that only last a few minutes, known drug users frequenting the location, etc.).  Or – the officers could send in an undercover officer to buy from the location or use an informant to go buy from the suspected dealer.

The would then use all that information in their application for a search warrant.

First – they would have to have a legal basis for a search warrant.  In California, there are only certain categories (Penal Code 1524) under which an officer could obtain a warrant.  Some examples are:  Evidence of a felony exists; evidence relating to child exploitation, a search for stolen property.  The affiant that is swearing out the warrant to the judge then would describe their training, education and experience that is relevant to the case.  In our hypothetical drug search warrant, the officer would describe their training in the academy, any additional narcotics courses, search warrant courses, etc.  They would also include their experience in drug cases – the number of cases, arrests, etc.  They would also include what sort of things they have learned in that experience.  For example through talking to persons arrested for selling drugs, they may have learned how drugs are packaged, sold, cut, manufactured, hidden, etc.  Once they establish their background, they would then describe what information they have that leads to the request to search.

In our example, they would lay out [and some of this may be done in a sealed or secret portion so as to protect identities] the information they got from their snitch, what they did in response, the undercover buy…. everything that leads to their conclusion that they believe they’re going to find drugs possessed for sale at the target’s house.


That’s a basic overview of search warrants and how the police get them.  If you’re the subject of a criminal investigation or the police searched your house with (or without) a warrant, it’s time to get a lawyer.  In Orange County, call me to set up a confidential consultation to discuss your case and your options.


Joe Dane



For more information about search warrants, see the following:  Illegal searches and search warrants and Search warrants and Miranda rights

Shoplifting laws and defenses after Prop 47 – Orange County theft defense attorney

With the recent passage of Proposition 47, there were some significant changes to the laws related to shoplifting.


Repeated Petty Theft is now only a misdemeanor.

The biggest is that now, no matter how many prior convictions for theft you have, a shoplifting petty theft is a misdemeanor.  Previously, if you had one prior theft conviction, a second theft – no matter how low the dollar amount – could be charged as a felony under Penal Code 666.  The law then changed to require three prior theft convictions (with a few exceptions), then a fourth could be charged as a felony.


Now, after Proposition 47, petty theft is a misdemeanor.  Period.  Yes, there are some exceptions for people previously convicted of “super strikes” (the most serious of felony offenses) or sex offenses, but in general, any theft of under $950 is now a misdemeanor.


Second Degree Burglary (Penal Code 459) is now only a misdemeanor if it’s a shoplifting burglary.

In the past, the police would arrest a person for a felony charge of second degree burglary for shoplifting.  How?  Because if they believed the person entered a structure (even a store open for business) with the intent to steal, it was burglary.  People were getting arrested for felony burglary, booked into jail and may have had to post bail because they were arrested on the felony charge.  Now, with the passage of Proposition 47, shoplifting burglary is now a misdemeanor.  If you entered a commercial establishment that was open for business with the intent to steal and then did in fact steal something, there is a new crime.  Penal Code 459.5 is now the crime of shoplifting.  The text of that code section reads:

“459.5. (a) Notwithstanding Section 459, shoplifting is defined a entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property is that taken or intended to be taken does not exceed nine hundred fifty dollars ($950).  Any other entry into a commercial establishment with intent to commit larceny is burglary.  Shoplifting shall be punished as a misdemeanor . . .”

It also says that “Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting.  No person who is charged with shoplifting may also be charged with burglary or theft of the same property.”


The change in the law of petty theft with a prior and second degree burglary doesn’t change the fact that a theft charge of any sort is never a good thing to have on your record.  There may be legal, factual or other defenses to an allegation of theft.  See my other post:  Is petty theft a big deal?


If you have been arrested or charged with any sort of theft offense, contact an experienced Orange County defense attorney right away.  There may be things that we do in order to get you in the best position possible for a good outcome.


Joe Dane

Orange County Defense Attorney


“Can I get my felony reduced to a misdemeanor because of Prop 47?”

Can your conviction get dropped to a misdemeanor?  Does Prop 47 affect your case?


In the past week since Proposition passed, I’ve gotten several calls and emails asking about getting felony charges changed to misdemeanors.  Unfortunately, there are either a lot of false rumors or maybe just false hope going around.


Proposition 47 did not affect all felonies.


Only a handful of low-level theft and fraud charges as well as three drug charges were affected by Prop 47.  If your current case or old conviction is not one of those listed, Prop 47 didn’t do anything to any other charges.  Here’s what charges were affected:


Second degree burglary based on shoplifting.  There is a new Penal Code created by Prop 47.  Now, the crime of shoplifting is listed in Penal Code 459a.  That makes it a misdemeanor to enter a commercial establishment with the intent to commit a theft while the business was open during regular business hours.  It used to be that if you entered a store with the intent to steal, they could arrest you for second degree burglary [Penal Code 459/460(b)].  That charge was a “wobbler” and could be either a felony or a misdemeanor.  The police would always arrest for the felony charge, even if the DA chose later to file only a misdemeanor burglary or a simple petty theft.  If you have a prior conviction for second degree (commercial) burglary based on a shoplifting incident and the value of the property taken was under $950, it would qualify for redesignation to a misdemeanor under Prop 47.  NOTE:  Residential (first degree) burglary or other forms of second degree burglary (such as auto burglary or breaking into a closed business or detached garage) are not affected by Prop 47.


Forgery of checks

If you have a felony conviction for forgery of checks that total less than $950, it potentially qualifies for reduction to a misdemeanor under Prop 47.  NOTE:  If you were convicted of identity theft (Penal Code 530.5) along with the forgery, then the forgery charge would NOT qualify.

Insufficient checks

Under Prop 47, if you have a felony conviction for insufficient checks under Penal Code 476a, as long as they did not total over $950, it potentially qualifies for reduction.  However, if you have three or more prior convictions for forgery (PC 470), fictitious instruments (PC 475) or 476 (insufficient checks), you would not qualify.

Grand theft

Grand theft used to be theft over $400.  Recently, the dollar amount changed to $950.  If you have a prior conviction for grand theft as a felony, but the dollar amount was under $950, it would qualify.  Similarly, if you have any other form of grand theft (such as grand theft person, grand theft auto, grand theft of a firearm, etc.), it may also qualify for reduction.  Those three forms of grand theft didn’t have a dollar amount – theft of a firearm of any value was considered grand theft, just like theft from a person (pickpocketing) of any value was grand theft.

Receiving stolen property

If you have a prior felony conviction for receiving stolen property and the value was under $950, that charge is eligible for reduction to a misdemeanor.

Petty theft with a prior

If you have a felony conviction for petty theft with a prior (Penal Code 666), it may be eligible for reduction.  If your conviction was solely because you have either 1 prior theft conviction (or 3 priors once the law changed a few years ago), it is potentially able to be reduced.  If you were convicted for petty theft with a prior and the prior was grand or petty theft from an elder [Penal Code 368(d) or (e)], auto theft under Vehicle Code 10851, burglary (PC 459), carjacking (PC 215), robbery (PC 211) or felony possession of stolen property (PC 496), your charge is NOT eligible to be reduced.


What non-drug charges are NOT affected?

If it isn’t one of the listed charges above, it is NOT affected by Prop 47.  I’ve gotten calls and emails asking if felonies such as robbery (211), carjacking (215), manslaughter (191.5), felony evading (2800.2), felony DUI (VC 23153 or 23152), domestic violence (PC 273.5) and other charges can be now reduced because of Prop 47.  Sorry – no.  Prop 47 covers only those listed lower level offenses.  If it’s not listed in the new law, it’s not able to be reduced.




Only three charges were affected by Prop 47:

Possession of a controlled substance under Health and Safety Code 11377 (typically methamphetamine and ecstasy) is now a misdemeanor.  If you have a prior felony conviction for possession of meth, you can get it reclassified as a misdemeanor.

Possession of concentrated cannabis under Health and Safety Code 11357(a) is now also a misdemeanor.

Possession of a controlled substance under Health and Safety Code 11350 (typically cocaine and heroin) is now a misdemeanor


What drug charges are NOT affected?

Possession for sales of any substance under 11351, 11351.5, 11352, 11378, 11379, 11359, 11360 are NOT affected by Prop 47 and cannot be reduced.

Possession of controlled substances in jail or prison (Penal Code 4573).  Yes, those are typically simple possession charges, but because it occurs in a custody facility, they are NOT included in Prop 47.


Keep in mind – if you have a prior “super strike” or sex offense that requires PC 290 (Megan’s law) registration, you may not qualify even if the charge itself does.


For more information, please see Prop 47 – reducing a felony to a misdemeanor

If you have a case in Orange County or Southern California that you think qualifies, contact me and let’s see if we can get started clearing up your felony charges.

Joe Dane



Prop 47 – reducing a felony to misdemeanor (old conviction or new case)

Proposition 47 made some substantial changes to drug and theft laws


California voters approved Proposition 47 (“Prop 47”) in the statewide general election November 4, 2014.  It was commonly known as the “Safe Neighborhood and Schools Act” and it changed the sentencing laws and affects several low-level crimes to make them misdemeanor offenses instead of felony offenses.  The law became effective upon passing and it is already impacting current cases in court.


With the change in the law, the following crimes are now considered misdemeanors in most instances:


  • Shoplifting, where the value of property stolen does not exceed $950
  • Grand theft, where the value of the stolen property does not exceed $950
  • Receiving stolen property, where the value of the property does not exceed $950
  • Forgery, where the value of forged check, bond or bill does not exceed $950
  • Fraud, where the value of the fraudulent check, draft or order does not exceed $950
  • Writing a bad check, where the value of the check does not exceed $950
  • Petty theft with prior convictions
  • Personal use of most illegal drugs


Shoplifting (Penal Code 484, 488 and now 459a)

Prop 47 created a new charge:  Penal Code 459a.  That is a new charge of misdemeanor shoplifting.  Under the old laws, if a person stole an item from a business it was ordinarily charged as a misdemeanor petty theft (Penal Code section 484 and 488).  If a person entered with the intent to steal (such as entering with tools to remove sensors, empty shopping bags, etc.), the police would typically arrest for second degree burglary – commercial burglary.  That charge is a “wobbler” meaning it could be either a felony or a misdemeanor.  Because of that, law enforcement would arrest for the felony charge, take the person down for formal booking and they would have a felony arrest on their record.  Now, if a person enters a commercial building that is open for business and takes (or tries to take) property valued at $950 or less, they will only face a misdemeanor for shoplifting.


Grand Theft (Penal Code 487)

Proposition 47 also makes several significant changes to the grand theft laws.  Previously, grand theft was taking of property of over $950 in most cases, but included several categories that were felonies at any dollar value.  For example, under the old law, theft of a firearm of any value was grand theft.  Similarly, theft of an automobile of any value was grand theft.  Under the old law, grand theft was a “wobbler” and could be either a felony or a misdemeanor.  Now, for a theft to be grand theft, the value must be $950 under any theory.  The new change in the law also applies to grand theft person (where the property is taken directly from a person, such as a pickpocket).  In some cases, a defendant charged with robbery (Penal Code 211) was offered a plea deal and was convicted of grand theft person as a felony.  It appears as though those defendants can now petition to have that felony reduced to a misdemeanor as long as the value of the property taken does not exceed $950.


Receiving Stolen Property (Penal Code 496)


Under the old law, possession or receiving stolen property was a “wobbler” and could be either a felony or a misdemeanor.  Now, with the changes in Prop 47, it is a misdemeanor unless the value of the property is over $950.  If it is over $950, it remains a “wobbler”.


Petty Theft with a prior (Penal Code 666)


This charge has undergone changes in the recent past.  Years ago, if you had one prior theft conviction and served at least one day in jail, they could charge a new petty theft as a felony.  The law changed a few years ago to require three prior theft convictions (with a few exceptions) before a fourth petty theft could be charged as a felony.  Now, Proposition 47 makes petty theft a misdemeanor, regardless of the number of prior convictions for petty theft.  This does not apply to a person who has been previous convicted of a violent sex offense (see below) or a “strike” offense.


Forgery (Penal Code 470 and 473)

Prop 47 now makes it a misdemeanor for the passing of a check, bond, bank note, cashier’s check or similar negotiable instrument if the amount is under $950.  This does not apply if the defendant is also charged with identity theft under Penal Code 530.5.


Check Fraud (Penal Code 476a)

Like many of the other theft sections, check fraud is now a misdemeanor if the value is under $950.  If the defendant has 3 or more prior convictions for check fraud, the new charge is a “wobbler” and can be either a felony or a misdemeanor.


Drug offenses

Now, possession of illegal drugs under Health and Safety Code sections 11350, 11357 and 11377 are now misdemeanor offenses unless you have been previously convicted of certain felonies (see below).  This includes possession of drugs such as cocaine, heroin, methamphetamine, ecstasy, LSD, mushrooms (psilocybin) and rock cocaine.


BUT… Some defendants are excluded from these changes.  

If a defendant has a prior conviction for a violent sex offense or other felonies listed under Penal Code 667(e)(2)(C)(iv), the automatic misdemeanor rule does not apply.  Those prior convictions include oral copulation, sodomy or sexual penetration of a child under 14 by a person 10 years older than the victim; lewd acts with a child (commonly referred to as child molestation) under Penal Code 288; homicide or attempted homicide under Penal Code 187 through 191.5; solicitation to commit murder under Penal Code 653f; assault with a machine gun on a peace officer under Penal Code 245(d)(3); possession of a weapon of mass destruction under Penal Code 11418(a) and any serious or violent felony punishable by life in prison or death.


Now what?

If you have a previous conviction for a felony that falls under the listed crimes affected by Prop 47, you are eligible to have it reduced to a misdemeanor.  If you are no longer under any sort of supervision (probation, parole, etc.), you are entitled to the reduction of your felony conviction to a misdemeanor.  If you are still “serving” your sentence, it is not an automatic reduction, but the court must assess whether reducing you pose an “unreasonable risk of danger to public safety.”  That means that the court must decide if you are at risk to commit a new violent felony (not just any felony).


Does this impact firearm rights?

There is a difference between a charge that is reduced vs. a charge that is reclassified.  When the law changes to reclassify these listed crimes as misdemeanors, once the request to reclassify is granted by the court, the case becomes a misdemeanor for all purposes.  The exception to that is when it comes to “felon in possession of a firearm” charges.  This post-conviction reclassification pursuant to Prop 47 does not reinstate your right to own, use or possess a firearm.  If you were previously convicted of an offense that was a “wobbler” that can be reduced to a misdemeanor, requesting that reduction (rather than reclassification) does truly make the case a misdemeanor for all purposes including felon in possession of a firearm statutes.


How do you get your felony conviction reduced?

If you have a case from an Orange County conviction that you think qualifies, contact me – either by phone at 714.532.3600 or email at or by submitting your information on the “contact” page here:  Click to contact Joe Dane

We can discuss your eligibility and options to help put old felony convictions behind you.  If you’re eligible, we can file the appropriate motions with the court to get your felony charge reduced to a misdemeanor.  The law provides that you must file your motion with the court within three years of the passage of Prop 47, so don’t delay.



Top Criminal Defense Attorney – Orange County (OC Metro magazine)

Joe Dane named as Top Criminal Defense Attorney in Orange County


I am honored to have been named by OC Metro magazine as one of the top attorneys for criminal defense.

OC Metro Top Attorneys feature

For additional information about my background and experience, please see Joe Dane’s “About Me” page.























Congratulations to the others selected for this year’s list, all whom I am proud to be colleagues of and call my friend.