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Part of the job of a law enforcement officer is to search for evidence of a crime, take that evidence for examination, then use it in a trial. This is called “search and seizure”. The Fourth Amendment of the U.S. Constitution and Article I, Section 13 California Constitution have laws against “unreasonable search and seizure”. The laws surrounding what makes a search reasonable or unreasonable are complex. We will explain them in this article.

There are three components to look at. The first is whether or not the area searched is considered to be private by society. This is called “reasonable expectation of privacy.” Places like your home, your electronic devices, or even a hotel room or a tent fall into this category. But the abandoned property, like trash you’ve thrown out or something you threw out of a car, do not have this expectation and are fair game for search and seizure.

If it is private, the police may still search it if one of two things apply. The first is if they have a search warrant. The laws in California for search warrants can be found here. Police have to convince a judge that there may be evidence that a felony was committed. If the judge believes there is probable cause that this is true, they will write a warrant that gives the police the right to search that area for evidence related to that crime alone. The last thing to consider is whether the search would fall into one of the many exceptions to the warrant law.

These include things like:

  • The owner of the property gave consent to a search.
  • You’ve been arrested lawfully and the police want to safeguard evidence that might be destroyed.
  • There is an immediate danger to life or property.
  • An item is in plain view and obviously incriminating.

There are also specific exceptions for vehicles and electronic devices that are derived from these ideas.

Take vehicles, for instance:

  • During temporary detention, an officer might believe you have access to a weapon or is otherwise dangerous. The police can search to preserve the safety of everyone.
  • Your car is impounded after a legal arrest. Police can take the time to search that vehicle for evidence.
  • A shakier reason is if the police believe they have probable cause that a vehicle contains evidence of a crime, like if they believe they smell alcohol or drugs.

For electronic devices:

  • Police can access the device in an emergency situation or aid in pursuing a fleeing suspect.
  • Police can also search devices when you’re crossing an international border if they have probable cause.

Note that police can still take an electronic device and hold it until they get a warrant for a legal search.

Remember if you give consent to the police for a search then any evidence they find is legal! It doesn’t matter if the area has a reasonable expectation of privacy. If you consent to a search, you waive your Fourth Amendment rights.

California Search And Seizure Laws

What Constitutes An Illegal Search And Seizure?

If the police or the judge doesn’t follow the rules, then the search and seizure could be deemed illegal. For example, a warrant could be challenged if it can be proven that:

  • The police mislead the judge.
  • The warrant was too broad.
  • The search exceeded the limits of the warrant.
  • The judge was biased

If the police do a search based on probable cause or due to one of the exceptions, they will have to prove that their search fell under the exceptions. If it can be proven otherwise, the search and any evidence collected in relation to the search will be illegal evidence.

The trickiest areas are when it’s unclear whether or not society has decided there is a reasonable expectation of privacy. Electronic devices are used to fall into this category. Prior to 2014, there was no reasonable expectation of privacy for electronic devices in California. Police were free to search phones and computers as they pleased. However, that is now illegal without a warrant thanks to a California Supreme Court ruling.

What Happens If An Unlawful Search And Seizure Is Discovered?

Unlawful search and seizure does happen, but how can you challenge it? Your criminal defense lawyer can file something called a “motion to suppress” before your trial starts. In the motion, your criminal defense lawyer will offer their arguments about why a search and seizure was illegal and why the evidence found should not count under California’s “exclusionary rule”.

If the judge agrees that the search was unlawful, the state will be unable to use any evidence collected in that search. Depending on the nature of the crime and the evidence suppressed, the prosecution may be forced to use a lesser charge or to drop all charges because they lack the evidence to proceed.

There is also a second way your lawyer can challenge the legality of a search and seizure. Sometimes the police will gain legal evidence indirectly through an illegal manner. If there is no way they could have found that evidence without the illegal search and seizure, that evidence can be excluded under the “fruit of the poisonous tree” rule. However, the prosecution does have ways to challenge this so it is a weaker way to suppress evidence.

One of the things that a criminal lawyer will do for you is to examine how the police obtained their evidence. If they believe that it was obtained illegally through an unlawful search and seizure it will be challenged. If the circumstances fall in your favor, you may never have to go to trial.

Ask for Help from Illegal Search and Seizure Lawyer

However, if your case goes all the way to trial without challenging the evidence then it will be much harder to dismiss what is presented. This is why it is so crucial that you get a lawyer skilled at challenging unlawful search and seizures on your side as soon as possible after your arrest.

If you are arrested in Los Angeles, don’t wait until it is too late. Contact Manshoory Law Group for a consultation. Explain your reasons why you think the evidence against you was illegally obtained. We will fight hard to force the prosecution to prove that they did everything by the book.

Shaheen Manshoory
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