Seizure Law on California

“Search & Seizure”

The Fourth Amendment to the U.S. Constitution states that we have the right to be free from unreasonable “searches and seizures” by law enforcement. This applies to both federal and state agencies.

The Fourth Amendment’s rule against unreasonable search and seizures means that police may not search you or your property unless one of the following is true:

They have obtained a valid search warrant from a judge, or the search falls within one of a number of exceptions to the warrant requirement recognized by federal and California courts.

Exceptions to the warrant requirement:

Exceptions to the rule that police searches and seizures require a warrant vary depending on the type of property that is being searched.

Cell phones

There are special rules about when police may search “smartphones” and other electronic devices without a warrant.

For example, the exceptions that apply to police searches of cellphones are different from those that apply to police searches of vehicles.

But, generally speaking, exceptions to the warrant requirement for searches and seizures exist for:

Searches/seizures done with someone’s voluntary consent;

Searches/seizures incident to a lawful arrest, where the police are looking either for weapons that might be used against them or for criminal evidence that might otherwise be destroyed;

Inspection searches, such as those at international borders;

Searches of vehicles when police have “probable cause” to believe the vehicle contains evidence about a crime (this is known as the “automobile exception” to the warrant requirement);

Searches of obviously incriminating items that are in “plain view” while law enforcement is conducting an otherwise lawful search;

Searches/seizures in emergency situations that are necessary to prevent physical harm or serious property damage, or to locate a fleeing suspect;

The “stop and frisk” of a criminal suspect (that is, a search of his/her outer clothing) while s/he is being temporarily detained (this is sometimes referred to as a “Terry stop”), to look for weapons that might be used against an officer; and

Searches in situations where individuals have no reasonable expectation of privacy.

What happens if I am the victim of an unlawful search or seizure?

If you are the victim of an unlawful search or seizure by police, then you and your California criminal defense attorney can ask the court to exclude this evidence in your case. This is what is known as the “exclusionary rule.”

This is usually done through a Penal Code 1538.5 PC motion to suppress evidence, which is an important kind of California pretrial motion.

In order to help you better understand when police can legally search your car or truck in California, our California criminal defense attorneys will address the following:

1. California Search and Seizure Laws and the “Reasonable Expectation of Privacy”

2. California Search Warrants

3. Exceptions to the Warrant Requirement for Searches and Seizures

3.1. Exceptions for searches of homes/residences

3.2. Exceptions for searches of vehicles

3.3. Exceptions for searches of cell phones and computers

3.4. The “plain view” exception

4. The “Exclusionary Rule” and Illegal Searches/Seizures

4.1. “Fruit of the poisonous tree”

1. California Search and Seizure Laws and the “Reasonable Expectation of Privacy”

Search and seizure laws in California have their origins in:

The Fourth Amendment to the U.S. Constitution, and Article I, Section, of the California Constitution.

These constitutional sections provide that all citizens have the right to be free from “unreasonable searches and seizures.”

Car Search

The Fourth Amendment to the U.S. Constitution protects you from unreasonable searches and seizures.

But, as a general matter, you are only protected against unreasonable searches and seizures of property in which you have an “expectation of privacy” that is “reasonable.”

Here are some examples of places/property in which you have a legitimate expectation of privacy that protects you from searches and seizures:

Your home,
Your cell phone, computer, and other electronic storage devices,
A tent or tarp,
A hotel room, and
Personal property that public school students bring to school.

They have a search warrant, or
One of the exceptions to the warrant requirement applies.

2. California Search Warrants

Many searches/seizures in California are constitutional because they are done with a valid search warrant.

Search warrants must be signed by a judge.

A search warrant must be authorized by a state or federal judge. Warrants grant police the right to search for and/or seize items that either
may be evidence that a California felony has been committed, or
may be evidence that a particular person has committed a felony.

In order to be valid, a search warrant must be based on “probable cause” and must describe specifically both
the area to be searched, and
the property or thing that is being searched.

Reasons that a search warrant itself might be invalid or defective include:

A police officer deliberately misled the judge about the facts justifying the warrant (a form of police misconduct that is all too common);

The warrant was not specific enough about the area to be searched or the type of evidence to be searched for; and/or

The judge who issued the warrant was biased.

3. Exceptions to the Warrant Requirement for Searches and Seizures

Some searches or seizures of places/property in which you have a legitimate expectation of privacy are valid even if they were done without a warrant-as long as they fall into one of a long list of widely-recognized “exceptions” to the warrant requirement.

The U.S. Supreme Court has carved out a number of exceptions to the warrant requirement for searches and seizures.

3.1. Exceptions for searches of homes/residences

Police may enter and search your house, apartment, trailer, etc., without a warrant, when one of the following circumstances applies:

You (or someone else with authority over the premises) have given your consent to a search of your home;

There is imminent danger to life or a threat of serious damage to property; or
The search takes place in connection with a lawful arrest-and is done either for the purpose of protecting the safety of the arresting officers, or for the purpose of safeguarding evidence about the arrest offense that someone might otherwise be able to destroy.

3.2. Exceptions for searches of car

Police may search your car without a warrant under certain circumstances.

Police searches of cars without a warrant may take place when any of the following is true:

You (or someone else with authority to do so) have given your consent to a search of your vehicle;

The police have “probable cause” to believe the car contains contraband or evidence of a crime;

The police are lawfully arresting an occupant of the car-and either the arrestee is within reaching distance of the interior of the car, or it is reasonable to believe the car contains evidence about the crime for which s/he is being arrested;

The police are temporarily detaining an occupant of the car via a Terry stop, and reasonably believe that s/he may be dangerous and have access to weapons stored in the car; or

The car has been lawfully impounded by law enforcement (as may happen if you commit Vehicle Code 14601 driving on a suspended license), and they are conducting an “inventory search.”

Once the police catch up with them, they search the car-and find marijuana hidden under a seat.

The marijuana can be used as evidence against Matilda and Nicole, even though the police had no warrant to search the car. Their suspicious behavior-leading the police on a high-speed chase when they approached-created probable cause for a search of their car.

3.3. Exceptions for searches of cell phones and computers

Warrantless searches of computers/electronic devices are allowed in only a few specific circumstances.

Police may search your cell phone-or conduct a search of your computer or hard drive, tablet computer, or other electronic device-without a warrant, under the following circumstances:

When you or someone else with authority over the phone/computer/electronic device consents to the search/seizure;

In an emergency situation, where police can show an immediate need to search a device in order to pursue a fleeing suspect, or assist someone who is seriously injured or threatened with imminent injury; or

When you are carrying the device across an international border (including at airports).

And, finally, if police in California searched your cell phone without a warrant before June 25, 2014, while you were under lawful arrest, prosecutors probably can use that evidence against you.

This is because-prior to that date-the law in California was such that warrantless cell phone searches under these circumstances

Warrentless cellphone searches incident to arrest were legal in California prior to June 2014.

3.4. The “plain view” exception

The “plain view” exception is another important exception to the warrant rule for California searches and seizures.

Basically, the plain view exception says that when police are searching property legally (with a warrant, or under a warrant exception), they may also search any items that are in “plain view” while they are conducting their search, and obviously incriminating.

4. The “Exclusionary Rule” and Illegal Searches/Seizures

If you are the victim of an illegal search or seizure, then you have the right to have any evidence that the police obtained through that search or seizure “suppressed.” This means that the evidence may not be used against you in your criminal jury trial.

You and your California criminal defense attorney can move to suppress evidence obtained from an illegal police search.

This is what is known as the “exclusionary rule” in California law.

Your criminal defense attorney can challenge any evidence from an invalid search/seizure by filing a Penal Code 1538.5 motion to suppress evidence, prior to the start of your trial.

If the motion is granted-and that evidence is key to the prosecution’s case against you-then you may be able to get the charges against you reduced, or even dismissed altogether.

4.1. “Fruit of the poisonous tree”

The “exclusionary rule” applies not just to evidence that was discovered during an illegal search-but also to evidence that police found as an indirect result of an illegal search.58

This is what is known as the “fruit of the poisonous tree” doctrine.

The “poisonous tree” is the unlawful search or seizure, and the “fruit” is any evidence that the police manage to uncover as an indirect result of the unlawful search or seizure.