Search and Seizure Laws in California

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Search and seizure can happen to you under certain conditions in California, and you should know your rights under these circumstances. If you find yourself in a situation with police that you do not understand, do not answer questions until you can call a defense attorney to help you.

California State Law for Search and Seizure 

Each person in the United States receives the protections provided by the Fourth Amendment to the United States Constitution. By its plain language and as interpreted by the U.S. Supreme Court, the Fourth Amendment protects individuals from unreasonable searches and seizures by government officials. It is important to remember that Fourth Amendment restrictions on searches and seizures do not apply to private citizens in most instances. The constitutional protections bind both federal and state law-enforcement agents.

The Constitution’s framers wanted to create a society free from government interference, where the people ruled and not governmental officials. The framers found the general warrants used in England oppressive. Thus, they created the requirement that law-enforcement can obtain a search warrant based on probable cause from the evidence supplied by a government official given under oath from a neutral and detached magistrate. 

States are free to provide greater constitutional protection than the U.S. Constitution, but not less. Section 13 of Article 1 of the California Constitution is nearly identical to the U.S. Constitution’s Fourth Amendment. The Fourth Amendment requires that the search warrant specify the places to be searched and the things to be seized. A search warrant in California can only issue on the same grounds. 

The Fourth Amendment and Section 13 of the California Constitution guarantee people in San Diego, and in the rest of California, freedom from excessive governmental intrusion into their lives. 

Searches Without a Warrant in California

Courts ruling on Fourth Amendment issues have found that any search or seizure by police without a warrant is unreasonable and therefore unlawful, except in rare circumstances. The government, meaning the police, could justify its actions if one of the recognized exceptions to the search warrant requirement applies.

Recognized exceptions to the search warrant requirement include:

  • Search with consent;
  • “Stop and frisk” to protect officer safety when questioning a suspect;
  • Search of someone when they are arrested;
  • Search of a vehicle based on probable cause;
  • Seizure of items that are in plain view of the officer;
  • Searches based on probable cause coupled with exigent circumstances;
  • Inventory searches of an impounded vehicle;
  • Emergency searches;
  • Administrative searches, such as at an International border or airport; and
  • Search or seizure in a place where there is no expectation of privacy.

The police and the prosecution bear the burden of proof to show that a valid exception to the search warrant requirement applies to any particular case. 

When Your Car May be Searched

The police officer may stop you for a traffic issue, such as speeding, a broken tail light, or some other Vehicle Code infraction. The officer is entitled to ask you to get out of the car after the officer has checked your driver’s license, vehicle registration, and proof of valid insurance. If there is someone else in the car with you, the officer may request the same thing from your passenger.

There are reasons why a police officer may want to check the inside of your car.  While you are innocent and unaware of the circumstances, the officer may ask first for your permission to search the car. You, without thinking that anything could be wrong, give the officer permission to search the car. You should remember that you have the right to withhold consent to search your vehicle.  

If the officer, while searching the car, finds illegal drugs, unlawfully possessed firearms, stolen goods, or other contraband, you and anyone else in the vehicle may be detained or arrested and then taken down to the police station. You should not answer any questions until you can discuss your situation with an experienced criminal defense lawyer.

You have a right to speak with your attorney privately before you answer any questions asked by the police. Neither the police nor the prosecution can hold your silence against you in court and especially in front of a jury should your case proceed to trial.

At Your Home

In most cases, the police at your doorstep must have a warrant to search your home.  If police have a valid search warrant, then they can enter your home and search the places described in the warrant.  All items the police remove, such as illicit narcotics or illegally-owned firearms and associated ammunition, must be specified on the warrant. 

Other items that you legally own cannot be removed unless these items are specified on the warrant. The police may seize items such as cell phones, computers, and all other items that may contain evidence against you, provided that the items are specified in the search warrant.

The police may not need a warrant in an emergency situation that threatens public safety and possible loss of evidence. For example, if someone observed a shooting suspect run into the home with a gun, a warrant would likely be unnecessary based on the exigent circumstances doctrine.

What Happens If Evidence Was Illegally Obtained?

The U.S Supreme Court has created a remedy for unconstitutional searches called the “exclusionary rule.” The exclusionary rule applies when:

  • Police obtained a search warrant without probable cause; 
  • There was a defect with the warrant, or 
  • The police were not justified in their search based on one of the exceptions to the search warrant requirement. 

The exclusionary rule states that the prosecution cannot enter evidence into court (including at trial) if it was the product of an unlawful search or seizure. 

To take advantage of the exclusionary rule, the defense must file a motion to suppress.

What constitutes an illegal search in San Diego County will depend on the facts of the case. If there was a warrant, the accused bears the burden to show that a search warrant was invalid. If there was not a warrant, the prosecution bears the burden to prove that the police’s conduct did not violate the accused’s rights to be free from unlawful searches and seizures.

What to Do If You Are Facing Criminal Charges in San Diego County

Contact an experienced San Diego County criminal defense attorney immediately. You have the right to remain silent and not answer questions by the police. You have a right not to speak with them if you wish; however, the best course of action is to remain silent and communicate only with a skilled San Diego County defense lawyer. 

You should speak frankly and openly with your lawyer because they are your advocate. The police want to talk to you to strengthen the case against you. Many suspects talk to the police thinking they can talk their way out of an arrest; however, most cannot.  If the police are talking to you, then there is a good chance you are going to be arrested.  

How a San Diego County Criminal Defense Lawyer Can Help You with Your Case

A seasoned San Diego County criminal defense lawyer with the Law Offices of Kerry L. Armstrong, APLC, will know the best way to attack law-enforcement’s actions. You are at a disadvantage unless you have the proper lawyer who is well-versed in California search and seizure laws fighting for you. An experienced San Diego County criminal defense attorney will file the appropriate motions to suppress all evidence the police seized unlawfully. The search and seizure laws in California are complicated. Call the Law Offices of Kerry L. Armstrong, APLC, today at 619-234-2300 for a free and confidential initial consultation to learn more about what constitutes an illegal search in San Diego.

Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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