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Do Police Always Need to Show a Search Warrant?

While the Constitution protects citizens against unwarranted search and seizure, there are notable exceptions to the rule depending on the place/property being searched. Keep reading to learn about California’s standard search and seizure procedure, when warrants are required for police, and exceptions to the rule that justify a search without a warrant.

California Search and Seizure Laws

California search and seizure laws protect residents against unreasonable police intrusion, based on state law and the Fourth Amendment of the U.S. Constitution. The Fourth Amendment establishes that police may not search you or your property unless:

  • they have obtained a valid search warrant from a judge, or
  • the search falls under an exception to the warrant requirement recognized by federal and California courts.

Once the search warrant is authorized by the state or federal judge, it grants police the right to search for and/or seize items that may either be:

  • evidence that a California felony has been committed, or
  • evidence that a particular person has committed a felony.

Also note that for a search warrant to be valid, it must be based on “probable cause” and must specifically describe the area to be searched and the property or thing that is being searched for.

Where Are You Protected from Search and Seizures?

The Fourth Amendment's requirements for search and seizure do not apply in places a person doesn't have a "legitimate expectation of privacy.” So, if there is no expectation of privacy, the Fourth Amendment doesn't come into play, and officers conducting a search do not have to meet its requirements.

To determine when a legitimate expectation of privacy exists, the Supreme Court created a test with two parts:

  • Did you subjectively expect the place or thing to be private?
  • Was that expectation objectively reasonable (i.e. would society agree that the place or thing should remain private)?

Some examples of places/property in which you have a legitimate expectation of privacy that protects you from unwarranted search and seizure are:

  • your home,
  • your cell phone, computer, and other electronic storage devices,
  • a tent or tarp,
  • a hotel room, and
  • personal property that public school students bring to school.

On the other hand, some places/property where courts have ruled that individuals do not have a reasonable expectation of privacy and are subject to unwarranted search from police are:

  • property that you have abandoned;
  • the contents of a stolen vehicle; and
  • property inside a vehicle if you are a passenger and do not own or have any possessory interest in that vehicle.

When Search Warrants Are Not Required

Exceptions to the warrant requirement for search and seizure vary depending on the type of property being searched. However, they generally exist for any of the following situations:

  • with someone’s voluntary consent;
  • incident to a lawful arrest, where the police are looking either for weapons that might be used against them or for evidence that might otherwise be destroyed;
  • inspection searches, such as those at international borders;
  • vehicles when police have “probable cause” to believe the vehicle contains evidence about a crime (“the automobile exception”);
  • obviously incriminating items that are in “plain view” while law enforcement is conducting an otherwise lawful search;
  • emergency situations that are necessary to prevent physical harm or serious property damage, or to locate a fleeing suspect;
  • “stop and frisk” of a criminal suspect being temporarily detained to look for weapons that might be used against an officer; and
  • where individuals have no reasonable expectation of privacy.

Exceptions When Searching a Home

Police may enter and search your place of residence (house, apartment, trailer) without a warrant when one of the following is true:

  • You (or someone else with authority over the premises) have given consent to a search of your home.
  • There is imminent danger to life or a threat of serious damage to property.
  • The search takes place in connection with a lawful arrest and is done either to protect the safety of the arresting officers, or to preserve evidence about the offense that someone might otherwise be able to destroy.

The Automobile Exception

Law enforcement may search cars without a warrant when any of the following is true:

  • You (or someone else with authority to do so) have given your consent to a search of your vehicle.
  • The police have “probable cause” to believe the car contains contraband or evidence of a crime.
  • The police are lawfully arresting an occupant of the car, and either the arrestee is within reaching distance of inside the car or it is reasonable to believe the car contains evidence about their crime.
  • The police are temporarily detaining an occupant of the car and reasonably believe that they may be dangerous and have access to weapons stored in the car.
  • The car has been lawfully impounded by law enforcement, and they are conducting an “inventory search.”

Search and Seizure of Electronic Devices

Any of your electronic devices (cell phone, computer or hard drive, tablet computer, etc.) may also undergo a search without a warrant when:

  • you or someone else with authority over the electronic device consents to the search/seizure;
  • in an emergency situation, where police show an immediate need to search a device to pursue a fleeing suspect or assist someone seriously injured or threatened with imminent injury; or
  • you are carrying the device across an international border (including at airports).

Note that police may seize, but not search, your device if you are under arrest and hold onto it until they obtain an authorized warrant to search it.

Challenging a Search and Seizure

If you feel you are the victim of an unlawful search or seizure, or if you seek to challenge evidence brought forward that was obtained with a warrant, you should contact an experienced defense attorney for legal representation. Our team at Appel & Morse can assess the facts of your search/seizure in question and craft a defense against the unfair proceedings. For example, our lawyer could argue that the warrant was defective or invalid, or that the search exceeded the scope of the warrant and yielded exclusionary evidence.

Contact our firm at Appel & Morse for more information today.