California’s Search & Seizure Laws

California and federal laws protect you from illegal search and seizure. These laws are based on the Fourth Amendment to the U.S. Constitution; however, California has its own set of search and seizure laws as well.

The Fourth Amendment Prohibits Unreasonable Searches and Seizures

The Fourth Amendment to the U.S. Constitution prohibits the police from searching you or your property unless:

  • They have a valid search warrant from a judge, or
  • The search falls within an exception recognized by state and federal courts.

Exceptions to obtaining a search warrant include when:

  • You consent to a search
  • The search is incident to a lawful arrest (for example, when you are searched at a police station prior to being booked into jail)
  • You are being inspected at international borders
  • The police have probable cause to believe a vehicle contains evidence of a crime (the “automobile exception”)
  • There is an emergency situation (to prevent physical harm, serious property damage, or to locate a fleeing suspect)
  • The police suspect you of criminal activity (a “stop and frisk”) while you are being temporarily detained (also called a “Terry stop”) to ensure you don’t have weapons to use against an officer
  • You have no reasonable expectation of privacy

You should know that you have a reasonable expectation of privacy in your home, on electronic devices, on personal property, in hotel rooms, and in many other places. Public parks and other public property may not afford you a reasonable expectation of privacy.

The Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine

If you are the victim of a warrantless search and seizure and the situation does not fall under an exception, then any evidence obtained may be excluded in your case. This is called the “exclusionary rule.”

Pursuant to California Penal Code 1538.5, your California criminal defense attorney can file a Motion to Suppress Evidence (a pre-trial motion), and the judge will determine if that evidence falls under the “fruit of the poisonous tree doctrine.”

The fruit of the poisonous tree doctrine is a legal concept indicating that the evidence (the fruit) that was obtained through an illegal search and seizure (the poisonous tree) should not be allowed in a case. When key evidence is excluded through the exclusionary rule, a case may be dismissed due to a lack of evidence.

What Items Might Be Seized by Law Enforcement?

Many different items may be seized by law enforcement during a search and seizure. Some of those include:

  • Contraband (illegal drugs, counterfeit money, illegal firearms)
  • Evidence of Crimes (stolen property, documents, weapons, passports)
  • Proceeds of Crimes (motor vehicles, real estate, cash money)
  • Assets Used in Criminal Activities (vehicles, computers, guns, cell phones)
  • Property that is a Danger to Public Safety (hazardous materials, bombs, weapons, poisons)

In some cases, law enforcement may also seize property that is not directly related to a crime. For example, they may seize a vehicle if it is being driven recklessly or if it is believed to be unsafe. They may also seize property if they believe that it is being used to facilitate criminal activity.

Do Police Need a Warrant to Search You or Your Property?

In most cases, the police do need a warrant to search you and your property. This is a right guaranteed to you by the 4th Amendment to the U.S. Constitution.

How to Get a Search Warrant

A valid search warrant must be obtained from a state or federal judge. Search warrants must be based on probable cause. They must specifically describe the area to be searched as well as the property or thing to be searched for.

The Plain View Exception

However, there is a “plain view” exception that expands the area of search for the police. If the police are searching with a valid warrant or under a legal exception, then they may also search any other items that are in plain view and are obviously incriminating.

When Can Police Search You Without a Warrant?

There are exceptions to the law that allow a warrantless search and seizure. The requirements for a legal warrantless search depend on what is being searched.

Warrantless Searches of Your Home

Police may enter your residence without a warrant if you or someone else with authority over the premises gives them permission. They may also enter the property if there is imminent danger to life or threat of serious damage to the property. A search may also be legal if it is conducted in connection with a lawful arrest.

Warrantless Searches of Your Vehicle

A warrantless search of your vehicle may be valid if you give consent, or the police have probable cause to believe the car contains evidence of a crime. A car may also be legally searched if an occupant of the vehicle is being arrested or temporarily detained and the officer believes there is evidence or dangerous weapons within. If a car is lawfully impounded, the police may conduct an inventory search.

Warrantless Searches of Your Cell Phone or Computer

The police may search your cell phone or computer hard drive (or any other electronic device) if you give them consent or there is an emergency situation (you are fleeing, or someone is in danger). They may also search these devices when you are carrying them across an international border, which includes at airports.

It’s important to know that even if one of the above exceptions does not exist, the police may seize your electronic devices if you are under arrest. They can hold that item until they get a warrant to search it. They can do this to prevent the destruction of criminal evidence.

Can You Get Your Belongings Back After an Unlawful Seizure?

California Penal Code 1536 allows you to request the return of property that was seized by the police during an unlawful search. This illegal search and seizure lawsuit requires a Motion to Return Property, which can be filed before or after a criminal trial.

Your motion to the court should explain the unreasonable situation under which your property was seized and an explanation that the police violated your rights. You must specifically name the property to be returned.

You must appear at a hearing before a judge, who will decide if your property will be returned to you.

Can Your Case Be Dismissed if Police Illegally Seize Your Property?

There are situations when your case can be dismissed if the police unlawfully seize your property. If that property is the fruit of the poisonous tree, then your criminal defense lawyer can file a motion to suppress it. If key evidence is thrown out of your case, then the prosecution may decide to drop your charges. The court may also dismiss your case for lack of evidence.