Criminal Defense

Are You a Victim of an Illegal Search and Seizure in California?

September 22, 2021 by M. Bernard in Criminal Defense  Rights  
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It’s More Common than You Think

It’s possible, even highly likely, that you or someone you know has been subjected to an unreasonable search and seizure. Both federal and California laws are supposed to protect you (and your property), ensuring that you have a reasonable expectation of privacy.

What makes something reasonable or unreasonable? It depends.

For example, California Commission on Peace Officer Standards and Training materials state that what might seem like perfectly normal behavior to a regular person might appear highly suspicious to an experienced police officer. This can include what type of clothing someone is wearing, the company he or she keeps, a particular location, or the time of day.

According to the Fourth Amendment and the California Constitution, for police officers or government officials to be able to search and/or seize you and/or your property, they must convince a judge that they have a reasonable suspicion that a crime has been, or is about to be, committed and that evidence of that crime exists and can be obtained at a particular location. If the judge decides that these requirements for probable cause have been met, he or she will issue a warrant.

The Fourth Amendment of the U.S. Constitution reads as follows:

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.

When a judge issues a search warrant, the police officers who are serving that warrant are required to show it to you. The warrant is supposed to be specific, detailing exactly who or what is going to be searched or seized. The police are not obligated to offer you a copy of the warrant, but you should still go ahead and ask for a copy. If the police seize your property, they are required to provide you with a detailed list of that property.

There are rules about the way police can serve search warrants and also about how long a search or tracking warrant can stay active without renewal. If police officers deviate from the specifics included on the search warrant, the admissibility of evidence they have obtained from their search can be called into question.

The U.S. Supreme Court has ruled that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable.” [Katz v. United States – 389 U.S. 347, 88 S. Ct. 507 (1967)]

Nevertheless, reasonable or not, case law has rendered it possible for there to be exceptions to warrant requirements for searches: Cursory/Pat/Frisk searches (based on possible imminent danger to police officers, these are searches of outer clothing for weapons or potential weapons), Exigent Circumstances searches (police must manage what they consider to be an emergency situation without delay), Plain View searches (from a legal vantage point, without intruding, the police are able to see—or hear, or smell, or touch, etc.— illegal activity or contraband), Incident to Arrest searches (the police are able to search the area immediately surrounding a person being arrested), Parole and Probation searches (the individual has, as a basis for parole or probation, agreed to submit to random, reasonless searches), and Consent searches (in which a person, who has the authority to do so, voluntarily consents to the search).

It’s legal for Police Officers to search the passenger areas of your vehicle (not the trunk!) without a warrant, but that doesn’t mean that you have to consent to the search. Like a cursory/frisk/pat search, this limited vehicle search is based on an officer’s reasonable suspicion that a weapon (or potential weapon) is in the vehicle.

There is a difference between compliance and consent. Giving consent waives your Fourth Amendment Right against warrantless searches.

The Fourth Amendment and Article 1, §13 of the California Constitution are intended to protect you, but that doesn’t mean police officers or government officials won’t stop you on the street, attempt to question you, or even search you or your vehicle. They may come to your home, knock on the door, and ask to speak with you or search your premises.

Just as it is never in your best interest to argue with police officers, it is never in your best interest to consent to a warrantless search. If you are stopped for questioning by the police (or by any government agent), you have the right to ask the police if you are free to leave or if you are under arrest. If you are asked to agree to a search, say, ‘I do not consent.

Police encounters are usually recorded. If you have the presence of mind to record the encounter on your own phone, you should definitely do so.

Stay calm. Be polite. Keep quiet. Tell the police officers or government officials that you want to call your attorney. Then, exercise your right to remain silent. Keep in mind that your attorney will help you fight the violation of your reasonable expectation of privacy later and work to prevent any evidence that resulted from it being used against you in court.

It is not legally required for the police to remind you that you have a constitutional right to refuse to give consent to a warrantless search. If you do find yourself having inadvertently given consent, remember that if the police officer or government official obtained your consent through misrepresentation of their authority, physical force, or verbal intimidation, your attorney might be able to have the supposed voluntariness of your consent nullified in court.

A Motion to Suppress is ‘A request that the court prohibit the introduction of illegally obtained evidence at a criminal trial.’ [Black’s Law]

Your attorney can argue a Motion to Suppress based on questions of reasonableness.

[California PC §1538.5]

Don’t make any decisions about the facts of your case without the advice of an experienced attorney.

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How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

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