Search and Seizure

Searches and seizures are among the primary tools that law enforcement use to obtain evidence in criminal cases. When police suspect you of a crime, they may wish to search your home, your car, your cell phone, your computer, your trash, or other property that belongs to you or is connected to you in order to find evidence to link you to the crime.

It’s one of the fundamental principles of American law going all the way back to the drafting of the Constitution that citizens have an inherent right to be free from unreasonable searches and seizures. That right is written into the Fourth Amendment in the Bill of Rights, which requires that police obtain a warrant before searching you or seizing your property. Similar protections are written into Article I, Section 13 of the California Constitution.

The constitutional provisions are designed to limit government’s power and protect your rights when you are the subject of a police investigation, and are generally rooted in the idea that you have a reasonable expectation of privacy from government in certain places and situations, and government must have legitimate, well-founded reasons for intruding on that privacy, or in other words they must have probable cause for the search or seizure.

When police search or seize your property without first obtaining a warrant, or without meeting one of the exceptions to the warrant requirement, a court may decide that your constitutional rights have been violated, and that may affect a prosecutor’s ability to move forward with charges against you.

If your rights have been violated during a search or seizure, we recommend that you call an experienced San Diego criminal defense lawyer for a consultation about your charges. Jessica McElfresh has years of experience handling search and seizure violations and offers free consultations, 24/7 when you call .

When Do Police Need a Warrant?

In general, police must obtain a search warrant when you have a legitimate expectation of privacy in the place being searched or with regard to the property being searched. You typically have such an expectation of privacy with regard to:

• Your residence
• Your computer
• Your phone
• Your car
• Bags you carry

Police may ask you to consent to a search to avoid having to get a warrant. It’s important to know that in general you are not required to consent to a search. You have the right to ask police to obtain a warrant, which they must then do unless one of the legal exceptions to the warrant requirement applies.

To obtain a warrant to search those places or property, law enforcement must demonstrate to a judge that there is evidence a crime has been committed or that a particular person has committed a crime. The warrant must be signed by a judge, and must describe the area being searched and the thing police are searching for.

Exceptions to the Requirement for a Warrant

Search and seizure law in the United States has been evolving for more than 200 years, and there exists an increasingly complex set of exceptions when police may conduct a search or seize property without first obtaining a warrant. An experienced criminal defense lawyer can explain whether a warrant should have been required in your specific circumstances, but some broad exceptions include:

• You or another authorized person gave your consent to the search, for example, police want to search your house and your spouse gave consent when you were not home
• The search was conducted in connection with a lawful arrest, for example, police patting you down to search for weapons when you’re arrested
• The police searched your home when there was an imminent danger to someone’s life or threat of serious property damage, for example, police enter the property because they see smoke that indicates the property is on fire
• The item is in plain sight and obviously incriminating, for example, a baggie of marijuana sitting on the passenger seat of your car when you’re pulled over for speeding
• The property was made available to the public, for example, police searching your trash after you set it out on the curb

Consequences of an Illegal Search or Seizure

When police conduct an illegal search of your property or illegally seize evidence, a couple of legal doctrines work to protect your rights.

• Exclusionary Rule — This rule says that when evidence is obtained through an illegal search or seizure, a court may exclude that evidence from any criminal proceedings against you when your criminal defense lawyer asks that the evidence be suppressed. For example, if police searched your car without your consent during an illegal traffic stop and found cocaine in your trunk, and you were then charged with transportation of a controlled substance, the exclusionary rule says that a judge may decide that the cocaine in your trunk can’t be introduced as evidence against you because the search was invalid.
• Fruit of the Poisonous Tree — This doctrine says that evidence found as the indirect result of an illegal search may be excluded from court. For example, if police suspect that you were involved in a jewelry store burglary and they conduct an illegal search of your home, and that search turns up a receipt for a storage unit where they find stolen jewelry, because the original search of your home was illegal, then the jewelry found at the storage unit becomes “fruit of the poisonous tree” and your lawyer may be able to convince a judge that the jewelry can’t be used as evidence against you.

It’s important to understand that evidence isn’t automatically excluded from your case just because a search or seizure was illegal. Your criminal defense lawyer must make a motion to suppress the evidence, and prove to a judge that the search or seizure was illegal and that the evidence should be kept out of court.

Challenging an Illegal Search or Seizure – How a San Diego Criminal Defense Lawyer Can Help

When a criminal charge against you is based on evidence obtained through an illegal search or seizure — including illegal wiretapping or surveillance — as is explained above, you may be able to prevent that evidence from being used against you in court. However, there typically are complex legal questions involved when challenging a search or seizure. It’s recommended that you obtain representation from an experienced San Diego criminal defense lawyer who has a successful track record of fighting illegal searches and seizures in the court where your case is pending.

When evidence obtained through an illegal search or seizure is suppressed, your defense lawyer then is often in a good position to negotiate with prosecutors for dismissal or reduction of your charge — or to convince a jury of your innocence.