In this section, we will examine the ‘search and seizure’ powers of law enforcement in detail. We explain what powers the police have to search your private property, stop and search your vehicle, and your person, and to take any evidence or illegal items that they find. We will then detail what your Summit Defense attorney can do to challenge any improper police behavior, and have evidence excluded.
The 4th AMENDMENT
The 4th Amendment of the US Constitution protects people from unreasonable searches and seizures. It says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A ‘search’ is any kind of intrusion on your personal privacy by the government. This includes:
- Searching your house, office, or place of business;
- Searching your personal belongings, such as bags, wallets, and cellphones;
- Patting you down and searching your clothing or body; and
- Searching your vehicle.
A ‘seizure’ is whenever the government interferes with your possession of property in a meaningful way. This includes taking away any items found during a search.
The police are allowed to search a person’s home, their car, their place of work, or any other specified location, if they have a valid search warrant. If they find what they are looking for, they are allowed to take – ‘seize’ – it as evidence. The police can’t just ask for a search warrant and get one, however – there are rules that govern how and in what circumstances warrants are issued.
A judge must have probable cause to issue a warrant
Before a judge issues a warrant, he or she must have probable cause to believe that:
- a crime has been committed, and
- that evidence of that crime is likely to be found in the place that the police want to search.
Grounds – a crime has been committed
Some of the grounds on which a search warrant can be issued include:
- that the property was stolen or embezzled;
- that the property was used as the means of committing a felony;
- that the property is in possession of a person with the intent of using it to commit a crime;
- that the property has been given to someone to hide it;
- that the property is anything that tends to prove that a felony was committed, or was committed by a particular person;
- when an arrest warrant has already been issued;
- when a communication provider (like a phone company) has records that would indicate that an offense has been committed.
This is the legal standard that the person applying for the search warrant must meet. That is, they must present evidence to the judge that leads the judge to have a “reasonable belief” that criminal activity has taken place, or is taking place.
The person or agency applying for the warrant prepares the application for the warrant – known as an ‘affidavit’ – that specifically describes the location to be searched and the property that they expect to find there. The affidavit must also contain the evidence that the person has to establish probable cause.
For example, the police wish to search a house where they believe drugs are being sold from. They have arrested someone for possession of drugs, and that person told them where they bought the drugs. So, the police prepare an application for a search warrant. In the application, they provide information including:
- the exact address of the house,
- the drugs, cash, and other paraphernalia they expect to find there,
- the fact that they have received information about drugs being sold from that house from an informant,
- the details that the informant told them about buying drugs from the house, and what the informant observed inside the house.
If the judge wants, he or she can question any of the police officers involved, or the informant, before issuing the search warrant. In particular, the judge must be convinced that the informant is reliable – so, they can ask for the informant’s identity and details, even though that information may not be revealed to the defense.
Once the judge is satisfied as to the facts presented in the application, or has probable cause to believe that they exist, they must issue a search warrant.
An officer must ‘knock and announce’ before executing a warrant
The law sets out a procedure that must be followed when the police go and execute a search warrant. They must:
- Knock on the door,
- Announce themselves as law enforcement officers,
- Tell the person inside that they have a search warrant, and
- Give the person enough time to open the door.
The police are required to “substantially comply” with the knock and announce rule – that is, they don’t have to follow it perfectly, but they must follow it as best they can in the circumstances. For example, if the police reasonably thought no one was at home, then they may be excused from following the rule.
The knock and announce rule is meant to prevent the police from forcing entry to your home or place of business unless you have already knowingly refused them entry.
If you refuse the police entry after they have properly announced themselves, or if you are not home, the police are allowed to “break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant”. That is a lawful entry.
It is an unlawful entry, however, for the police to force their way in if, for example:
- they have not announced themselves properly, such as by not identifying their purpose;
- they have not allowed the person inside enough time to answer the door;
- they enter before a search warrant is issued, such as while waiting for the judge to issue one.
Exceptions to the rule
The courts have recognized some important exceptions to the knock and announce rule, including:
- Consent: if the occupant gives the police permission to enter;
- Public place: if the place to be searched is already open to the public, such as a store during opening hours; and
- Exigent circumstances: this means that there are special circumstances that make it impractical or unsafe for the police to knock and announce. It might be that they believe drugs or other evidence will be destroyed if they announce themselves, or they know that the people inside have weapons.
You can challenge an unreasonable search and seizure.
If a warrant has not been properly issued, or if the police did not follow the correct procedure when executing a warrant, then you may be able to challenge the search and seizure. This is also referred to as the ‘exclusionary rule’. This means that you may be able to:
- have items that have been seized returned to you; and
- have evidence excluded that would otherwise be used against you in a criminal trial.
To do either of those things, your Summit Defense attorney will file an ‘unreasonable search and seizure’ motion under California Penal Code Section 1583.5. Under that Section, a challenge can be mounted because:
- the warrant was insufficient on its face, for example, because it didn’t properly specify the place to be searched;
- there was no probable cause to issue the warrant, for example, because the police officer lied about the evidence to support the warrant in the application;
- the property or evidence obtained was not as specified in the warrant, for example, if the warrant specified that the police were to search for weapons, but they took unrelated business records; or
- the execution of the warrant violated state or federal constitutional standards, for example, the police didn’t follow the knock and announce rule and there was no excuse not to.
If the court finds that any of these circumstances occurred, then they can declare the search unlawful. This is a very powerful defense because it will usually mean that any evidence seized will be excluded, meaning that the Prosecutor cannot use it against you at trial. In many cases, that will mean that they have to drop the charges against you, because they will no longer have the evidence to prove anything beyond reasonable doubt.
SEARCHES WITHOUT A WARRANT
Although the law normally requires a search warrant, there are situations when the police or other law enforcement officers are allowed to search your home, the place you’re staying, your business, or your car, without a warrant. However, because of the 4th Amendment bar against unreasonable search and seizure, there law specifies that this can only occur in specific, justified circumstances.
A search can only occur without a warrant in specific circumstances
The police can conduct a search without a warrant in the following situations:
- Exigent circumstances. For example, if evidence would otherwise be destroyed.
- If police are given permission by the owner/occupier of the property.
- After arrest. If they arrest someone, the police are entitled to search that person, and also the immediately surrounding area.
- Common examples include airport screening and health inspections.
- Automobile exception. Police can search vehicles without a warrant, provided they have a reasonable belief that the vehicle holds evidence of a crime.
- No reasonable expectation of privacy. For example, if there is an area that you have ‘exposed to the public’ and don’t expect to be private –such as a hotel room you have checked out of – then it can be searched.
- Plain view. If the police are otherwise authorized to be somewhere, and they see something that they reasonably believe to be evidence, they can seize it.
This refers to situations where ‘time is of the essence’. So, if the police have reason to believe that they would lose important evidence, or a suspect would escape, by taking the time to get a search warrant, they can go in without one.
The police can ask to conduct a search without a warrant – even quite casually, for example, by asking if they can “come in and have a look around”. You do not have to agree to let the police search your home, but if you do, then they are not doing anything unlawful. In these situations, however, you are allowed to change your mind and ask the police to leave at any time.
This kind of search is allowed in order to preserve evidence, and protect the safety of the arresting officers. The aim is to allow the officer to remove any evidence that might be on the person arrested, to stop them from being able to destroy it, as well as to remove any concealed weapons that might be used to harm the officer. They are also allowed to search the immediate area and seize things like weapons, which the person might be able to reach out and grab.
Other officials, not the police, usually carry out these kinds of searches – for example, Federal officers who are screening passengers and bags at airports. They do not need warrants for these searches, as they are otherwise authorized under the law, and not considered ‘unreasonable’ in the circumstances.
The law treats vehicles on the road differently to the private property of someone’s home. This means that the police are allowed to stop and search a vehicle without a warrant, as long as they have a ‘reasonable belief’ that the vehicle contains evidence of a crime. This standard requires the police officer to base their belief on specific facts or circumstances that they would be able to articulate or explain. The rationale behind allowing warrantless searches of vehicles is twofold – they are mobile, and less private than homes, and they also allow evidence to be moved around and destroyed much more easily. We discuss the law surrounding the stopping and searching of vehicles in more detail, below.
No reasonable expectation of privacy
The 4th Amendment embodies the principle that, in our homes and personal belongings, we have a ‘reasonable expectation of privacy’. So in situations or places where that expectation does not exist, the police are allowed to conduct searches without a warrant. There are many examples of this kind of situation, such as:
- a hotel room you have checked out of;
- a bag that you have left in open shelving, such as in a library or at the gym;
- a cellphone that you have sold to a second-hand dealer, but not wiped all the data from;
- any place that you are not allowed to be, such as in a stolen car, or property that the law excludes you from;
- trash that you have thrown in a public trashcan.
If the police see something ‘in plain view’ that they reasonably believe to be evidence, they are allowed to seize it even if they do not have a warrant. This might occur, for example, when they are chasing a suspect and enter private property where they see some evidence of illegal activity.
You can challenge an unreasonable warrantless search.
It is important to keep in mind that the propriety of a search without warrant under any of these circumstances can be tested in court. This is because a search without a warrant is presumed to be illegal, unless the prosecution can provide justification for it.
To challenge a warrantless search, your Summit Defense attorney will file a motion under the exclusionary rule, as found in California Penal Code Section 1583.5. We discussed how evidence can be suppressed under this rule if searches with warrants were conducted unreasonably, above, and the same is true for warrantless searches. If the prosecution if not able to provide a reasonable and lawful justification for conducting a search and seizure without a warrant, then the evidence may be excluded from your criminal trial and, if it is not otherwise illegal, returned.
STOP and SEARCH OF VEHICLES
The police regularly stop and search vehicles without a warrant. They are allowed to do this under certain circumstances, because the law recognizes that vehicles are a different kind of property to someone’s home or office, and afford less privacy. Further, someone can commit a crime while driving a car – such as by not following traffic laws, or by driving while under the influence of alcohol or drugs. To allow the police to detect and arrest those offenses, they are allowed to stop drivers and conduct an investigation without first getting a warrant.
A vehicle can only be stopped on the basis of a reasonable suspicion.
The police cannot stop you in your car for no reason. The law requires that they have a ‘reasonable suspicion’ that some offense was committed, or that illegal activity is taking place. This is less than the probable cause required for an arrest, but means that the officer must draw “specific reasonable inferences which he is entitled to draw from the facts in light of his experience”. A simple hunch or guess is not good enough.
For example, if a police officer sees you driving a car and swerving between lanes erratically, he is entitled to stop you. He has not only seen you commit a traffic violation, but he may also have a reasonable suspicion that you are driving drunk. On the other hand, if a police officer sees a Hispanic man driving a car and stops him for no other reason than the man’s race, the stop would be unlawful.
A vehicle can only be searched with probable cause.
For an officer to go ahead and search a vehicle, they must have probable cause – that is, a reasonable belief that the vehicle contains evidence of a crime. Keep in mind that the officer could observe something that gives them a basis for having that reasonable belief after stopping a car.
For example, consider the officer, above, who saw you driving your car erratically and swerving between lanes. At the time he makes that observation, his suspicion may only go so far as the possibility that you are driving under the influence. However, if he stops your vehicle and speaks to you, he will have an opportunity to observe you, the driver, and the inside of the car. If he sees a bag of what looks like drugs in the center console, and sees that you have bloodshot eyes, he would then have enough facts to establish a reasonable belief that you are committing a further, drug-related offense. In those circumstances, he would be entitled to search your car more thoroughly to find – and seize – any further evidence of illegal activity.
On the other hand, if the officer stops you and finds that you are not under the influence of drugs or alcohol, and observes nothing suspicious inside the vehicle, he would not be entitled to do anything more than issue you with a ticket for the traffic offense.
You can challenge an unreasonable stop or search.
If your Summit Defense attorney believes that the police did not have a reasonable suspicion to stop your car, or a reasonable belief/probable cause to search it, then they will ask the court to suppress any evidence found as a result of the search. This is pursuant to the exclusionary rule under California Penal Code 1583.5, as discussed above, and means that the evidence could not be used against you.
SUPPRESSION and EXCLUSION of EVIDENCE
Summit Defense Attorneys are the largest defense firm in the Bay Area, and this means that we have unparalleled expertise in challenging improper and illegal police behavior – including illegal searches and seizures. The police have a huge amount of resources behind them and wield incredible power over everyday people, so there is no excuse for them to disobey the law. However, getting evidence excluded in these kinds of cases can be tough because the police will rarely admit to their transgressions, and the courts are often reluctant to suppress evidence that may prove a crime has been committed.
But we do not think anyone should face the prospect of a criminal conviction based on illegally obtained evidence. Your Summit Defense attorney will work to protect you from the unfair consequences of unscrupulous, lazy, and improper police actions. In search and seizure cases, some of the strategies we employ include:
- Filing motions to discover internal police records, and determine if the officers involved in your case have engaged in improper behavior before.
- Collecting evidence to establish that the police did not follow the law, or that the facts the police are relying on are not true.
- Making contact with the Prosecutor before charges are filed, alerting them to improper police behavior, and persuading them to drop or reduce charges.
- Filing pre-trial motions to exclude evidence before the matter reaches trial, and filing motions to exclude evidence during the trial, as necessary.
- Appealing decisions where the lower court decides to admit evidence.
- Ensuring all property is returned.
 Horton v. California (1990) 496 U.S. 128.
 United States v. Jacobsen (1984) 466 U.S. 109.
 California Penal Code, Section 1525.
 California Penal Code, Section 1524.
 California Penal Code, Section 1528.
 People v. Ramsey (1988) 203 Cal.App.3d 671. California Penal Code, Section 1531.
 California Penal Code, Section 1531.
 California Penal Code, Section 1538.5.
 Chimel v. California (1969) 395 U.S. 752.
 People v. Williams (1999) 20 Cal.4th 119.
 Terry v Ohio (1968) 392 U.S. 1, at 27.