Illegal Search and Seizure – California Penal Codes 1523-1542
Citizens of the United States are protected from illegal or unreasonable searches and seizures. The Fourth Amendment to the U.S. Constitution offers this protection. The law against illegally searching citizens applies to police at the local level and law enforcement officials at the federal level. The Fourth Amendment rule means that law enforcement officials may not search a person or their property unless:
The officials have obtained a search warrant from a judge (the criteria of which are found in California Penal Codes 1523-1542) , or
The search falls under an exception as stated and recognized by both federal and state courts.
Many people believe that, because of the Fourth Amendment, they are not subject to search at any time unless they are caught “red handed.” This is not the case. While each case is unique, the typical exceptions to the warrant requirement for searches and seizures include:
A search or seizure that is conducted with someone’s voluntary consent;
Those that are incident to an arrest (an officer is protecting their own safety or believe that the person has evidence which will be destroyed);
Searches conducted at international borders;
The automobile exception where police believe that the vehicle contains evidence of a crime or criminal activity;
The plain view exception where police seize items that are in plain view while conducting a lawful search;
Certain emergency situations;
The Terry stop or a search of outer clothing for weapons;
A search where the person in question has no “reasonable” expectation of privacy.
When Persons Are Searched Unlawfully
Some police and law enforcement officials adhere to the rules set forth by the U.S. Constitution. When they do not, the law allows for a remedy to this unlawful act. If this occurs, the evidence gathered during the illegal search or seizure can be excluded as evidence in a court case. In legal terms, this is the exclusionary rule.
It can be difficult to determine whether or not you have been the victim of an illegal search or seizure if you are not familiar with the several laws and rules that are in place. To assist you in making that determination, we will provide very basic information below that outlines the various legalities that surround the searching of a person or property and the taking of belongings. If you have questions after reading the information or about your case in general, we invite you to call us at Milligan, Beswick, Levine & Knox for further assistance.
Reasonable Expectation of Privacy
Every person in the United States has a reasonable expectation to privacy, but what does that mean? You might believe that you have a right to privacy depending on your location and the situation, but that expectation must be reasonable as outlined by case law. In other words, a similar, reasonable person must believe the same if put in the same situation.
Citizens have a reasonable expectation of privacy as it pertains to searches and seizures in their own home, in a tent or a tarp and in a hotel room. There is also an expectation that your cell phone, computer or other electronic device is private, as is your personal property in certain circumstances.
For example: You are in your parked car in a parking lot. The police pull up, and demand you to exit and search your vehicle. They find cocaine in your glove box. That evidence is used to charge you with a crime. Your lawyer will move to have that evidence thrown out because the police had no right to search your vehicle.
While citizens do have the right of protection against illegal searches and seizures due to a reasonable expectation of privacy, that rule does not apply to property that you have abandoned, searches of a stolen vehicle, or property in a vehicle in which you are a passenger.
For example: You unlawfully take an item from the store and think better of keeping it. You throw it in the trash and take your trash to the curb. The police happen upon the evidence in your trash because they searched the garbage can. The evidence is admissible because the property was abandoned or, in this case, thrown out and placed on city property.
It is important to note that a reasonable expectation of privacy does not mean that law enforcement officials cannot search you in these situations. It only means that they must obtain a legal warrant before doing so. Additionally, if one of the exceptions applies to the situation, the police may conduct a legal search despite your expectation of privacy.
In California, a search warrant is obtained from a state or federal judge, magistrate or appointed judicial official. When a police officer obtains a legal search warrant, they are able to search you or your property and seize what is named in the warrant so long as the warrant was lawfully obtained.
To obtain a warrant in the state, an officer must provide evidence that a crime has been committed or that there may be evidence available showing that a suspect committed a crime. Search warrants have to be based on probable cause and must have certain wording to be legal. Specifically, the warrant must name the area that police will be searching and exactly what they are looking for.
Searches and Seizures Can Be Challenged
Even when a law enforcement officer obtains a legal search warrant, those warrants can be challenged. A lawyer may work to prove that the warrant was invalid or defective. They may also attempt to show the court that the search conducted by officers was outside the scope of the warrant or that evidence not listed in the warrant was collected.
Search warrants may be considered invalid or defective when:
- The Court was misled by officers requesting the warrant;
- The warrant was not worded specifically enough; or
- The judicial officer can be proven biased.
As discussed previously, there are exceptions to the need for a search warrant.
The police may enter your home without a search warrant if one of the following applies:
- You have given consent or someone who has authority over your property has given consent;
- Imminent danger to person or property; or
- The search is within the scope of a legal arrest to protect an officer’s safety or to prevent evidence from being destroyed.
The police can search your vehicle without a warrant when:
- You give consent;
- Someone with authority gives consent;
- Reasonable belief that there is evidence of the crime in the car when a person is being arrested;
- The police believe the person in the car may be dangerous; or
- The car has been impounded and the police are conducting an inventory.
For example: A citizen is pulled over and ultimately arrested for driving under the influence. The citizen’s vehicle is towed and impounded because it is a traffic hazard. The police conduct a search of the vehicle to determine its contents and locate narcotics under the seat. The citizen may face additional charges for the narcotics depending on the circumstances.
3. Cell Phones and Electronic Devices
Police can search your cell phone or electronic device if you give them permission to do so, or someone with authority over the device consents. They can also search the device if they can show that doing so assisted them in protecting someone from injury. The police can search the device in an airport or if you are crossing an international border. In these instances, a proper warrant is not necessary to search your cell phone; however, they must still have probable cause.
For example: You have decided to drive to Mexico for a weekend getaway. The police at the border ask you for your cell phone and search it. During that search, the police discover text messages detailing your participation in a crime. That electronic communication can be used against you should you be arrested for the crime in question.
4. Plain View
There is a plain view exception that says when the police are conducting a search, they can also look at anything that is plain or obvious view, even if it is not listed in a warrant. To search or seize that object, it must be clearly incriminating.
For example: The police obtain a search warrant for citizen’s apartment and will be looking for items that were reported stolen from store. During the search, the police do not find the items, but they see suspected narcotics lying on the counter. The police believe that upon testing the suspected will be deemed unlawful. The police have may lawfully seize the suspected nacotics even though they were not listed in the warrant.
5. Exclusionary Rule
When your attorney believes that evidence against you has been obtained illegally, they will work to have it suppressed. If your attorney can prove to a court that the evidence was indeed obtained in violation of your rights, that evidence could be thrown out of your case. If that evidence is the only thing tying you to a crime, your charges may be dismissed.
In any court proceeding, there are unique sets of circumstances. Nothing here in this article should be construed as specific legal advice. Rather, this information is an outline of the constitutionality of searches and seizures and their regulations. If you have been arrested by the police and evidence has been obtained, that evidence may or may not be used against you in court. The only way to receive accurate advice is to speak with a criminal defense attorney about your specific case.
If you have been charged with a crime in San Bernardino County, Riverside County or anywhere in Southern California, the team at Milligan, Beswick, Levine & Knox is here for you. We have years of experience in successfully defending a variety of crimes and will put that knowledge to work for you. No matter what you have been charged with, you have rights. Reach out to our team today for a free case evaluation and let us assist you in putting together your defense.