California Search & Seizure Laws – Know Your rights

California search and seizure laws protect you from unreasonable police intrusion into your home, vehicles, person and other property. These protections are grounded in state law and the Fourth Amendment to the U.S. Constitution.

If you are a victim of illegal searches, you can seek to get any illegally-obtained evidence excluded from the trial.

This applies both to actions by

• federal law enforcement (such as the FBI), and
• to searches by state and local police that lead to criminal charges in California state court. ^{1 2}

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:

1. They have obtained a valid search warrant from a judge, OR
2. The search falls within one of a number of exceptions to the warrant requirement recognized by federal and California courts.³

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.

For example, the exceptions that apply to police searches of cell phones 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 your voluntary consent;⁴
• 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;⁵
• Inspection searches, such as those at international borders;⁶
• 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);⁷
• Searches of obviously incriminating items that are in “plain view” while law enforcement is conducting an otherwise lawful search;⁸
• Searches/seizures in emergency situations that are necessary to prevent physical harm or serious property damage, or to locate a fleeing suspect;⁹
• If police suspect you of criminal activity, a “stop and frisk” (that is, a search of your outer clothing) while you are being temporarily detained (this is sometimes referred to as a “Terry stop”), to look for weapons that might be used against an officer;¹⁰ and
• Searches in situations where you have no reasonable expectation of privacy.¹¹

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.”¹²

This is usually done through a Penal Code 1538.5 PC motion to suppress evidence, which is an important kind of California pretrial motion.¹³

In order to help you better understand your rights, 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”

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

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

Search and seizure laws in California have their origins in:

1. The Fourth Amendment to the U.S. Constitution,¹⁴ and
2. Article I, Section 13, of the California Constitution.¹⁵

These constitutional sections provide that all citizens have the right to be free from “unreasonable searches and seizures.”¹⁶

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.”¹⁷

As Oakland criminal defense attorney Neil Shouse¹⁸ puts it:

“You may personally believe that you have a ‘reasonable expectation of privacy’ in certain property—but that doesn’t necessarily mean you have Fourth Amendment protections for that property. Under search and seizure law in California, the issue is whether you have a legitimate reasonable expectation of privacy—that is, one that the rest of society would accept as 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,¹⁹
• Your cell phone, computer, and other electronic storage devices,²⁰
• A tent or tarp,²¹
• A hotel room,²² and
• Personal property that public school students bring to school.²³

Example: Bob is selling drugs out of a tent in a campground. Police show up, search the tent without a warrant, find cocaine, and arrest him for drug possession for sale. Though the cocaine cannot come in as evidence because Bob had a legitimate, reasonable expectation of privacy in his tent—and so the police did not have the right to search it without a warrant.²⁴

Here are some kinds of property in which courts have ruled that you do not have a reasonable expectation of privacy:

• Property that you have abandoned;²⁵
• The contents of a stolen vehicle;²⁶ and
• Property inside a vehicle, if you are a passenger in the vehicle and do not own or have any possessory interest in either the vehicle or that property.²⁷

Example: Richard rents a motel room for one night but never checks out or pays extra. After three nights, the motel manager notices that the window to Richard’s room is broken and calls the police. They search the room without a warrant and find items that tie Richard to a recent nearby burglary. Since Richard is considered to have abandoned the room, any items left there can come in as evidence.²⁸

Of course, having a legitimate expectation of privacy in property does not mean that police may not search or seize that property. It just means that they may only do so if:

1. They have a search warrant, or
2. One of the exceptions to the warrant requirement applies.²⁹

2. California Search Warrants

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

A search warrant must be authorized by a state or federal judge.³⁰ Warrants grant police the right to search for and/or seize items that either

1. may be evidence that a California felony has been committed, or
2. may be evidence that a particular person has committed a felony.³¹

In order to be valid, a search warrant must be based on “probable cause” and must describe specifically both

1. the area to be searched, and
2. the property or thing that is being searched for.³²

Example: Based on a victim’s statement, a police officer gets a warrant to search an apartment rented to convicted felon Scott, who the police believe is a child pornography dealer. The warrant specifies that it covers only that apartment, and authorizes a search for child pornography materials.

Challenging a search or seizure authorized by a warrant

Not all searches and seizures done with warrants will be constitutional. It is possible to challenge the admission of evidence from a search even if the search was done with a warrant—IF either of the following is true:

1. The warrant itself was somehow defective or invalid, OR
2. The search exceeded the scope of the warrant, or yielded evidence other than that described in the warrant.³³

Example: When police in the above example search Scott’s apartment, all they find is a large stash of firearms. Though since the guns were not described in the warrant, they cannot come in as evidence of Scott being a felon with a firearm.

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.³⁴

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.

In this section, we discuss some of the most common places/property that police will search—and the warrant exceptions that apply for each of these.

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:

1. You (or someone else with authority over the premises) have given your consent to a search of your home;³⁵
2. There is imminent danger to life or a threat of serious damage to property;³⁶ or
3. 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.³⁷

Example: The police go to a suspect’s house without a warrant. The suspect is not home, but his girlfriend who lives there lets them search. Since the live-in girlfriend consented to the search, any evidence the police find can come in as evidence.³⁸

3.2. Exceptions for searches of vehicles

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

1. You (or someone else with authority to do so) have given your consent to a search of your vehicle;³⁹
2. The police have “probable cause” to believe the car contains contraband or evidence of a crime;⁴⁰
3. 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 they are being arrested;⁴¹
4. The police are temporarily detaining an occupant of the car via a Terry stop, and reasonably believe that they may be dangerous and have access to weapons stored in the car;⁴² or
5. 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.”⁴³

Example: The police signal for a swerving driver to pull over, but the driver leads the police on a high-speed chase. Once the police catch up with the driver, they search the car and find marijuana hidden under a seat. The driver’s behavior of speeding away created probable cause to justify a vehicle search, so the marijuana could probably come in as evidence against the driver.⁴⁴

Example: Steven gets arrested for DUI. During the inventory search of his car before it gets impounded, the police officer finds drugs and cash. This can be admitted as evidence if Steven is then charged with possession for sale because the inventory search was lawful.⁴⁵

3.3. Exceptions for searches of cell phones and computers

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

1. When you or someone else with authority over the phone/computer/electronic device consents to the search/seizure;⁴⁶
2. 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;⁴⁷ or
3. When you are carrying the device across an international border (including at airports).⁴⁸

Example: Andrea and José are two undercover police detectives. José suspects that a certain gang member kidnapped Andrea after discovering her identity. There is no time to get a warrant, so the police go to the gang member’s computer and search it for clues. This computer search is probably not illegal, because it was done in an emergency in order to prevent physical injury to Andrea.

Also, even if none of the above exceptions apply, police may seize (and not search) your phone or computer if you are under arrest—and hold onto it until they can get a warrant to search it. They may do this to prevent the destruction of criminal evidence that may be on the electronic device.⁴⁹

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.⁵⁰

This is because—prior to that date—the law in California was such that warrantless cell phone searches under these circumstances were legal.⁵¹

Example: In 2013, police conducted a warrantless search of Paul’s phone during a traffic stop and found child porn, which led to Paul being charged. In June 2014, the U.S. Supreme Court made clear that the warrantless search of Paul’s phone is now illegal. Though the images remain admissible as evidence because the police were acting in good faith in accordance with California law at the time.⁵²

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

1. in “plain view” while they are conducting their search, and
2. obviously incriminating.⁵³

Example: Police get a search warrant to search Sarah’s house for items she allegedly stole during an armed robbery. While there they see on her dresser a gun matching a description of the gun Sarah allegedly used. Even though the gun was not in the search warrant, it can come in as evidence because it was found in plain view and obviously tied Sarah to the robbery.⁵⁴

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.⁵⁵

This is what is known as the “exclusionary rule” in California law.⁵⁶

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.⁵⁷

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.⁵⁹

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.

Example: Police suspect that Courtney has been involved in a murder. They conduct a warrantless search of her home without her there. The only thing they find is a hotel key, so they get a search warrant to search the hotel room where they find the murder weapon. Though since the weapon was a fruit of the poisonous tree (the unlawful home search), the weapon cannot come in as evidence.

However, prosecutors may be able to get around the “fruit of the poisonous tree” rule by making one of the following arguments:

1. The evidence is far enough removed from the illegal search/seizure that the exclusionary rule no longer applies to it;⁶⁰
2. The evidence was found through an independent channel, not just through the illegal search;⁶¹ or
3. There is a “reasonably strong probability” that police would have found the evidence even without the illegal search.⁶²

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