Jamahl Kersey May 17, 2016 No Comments

What Everyone Should Know About Search and Seizure Laws

As an attorney, I am frequently asked about whether a particular police search action was legal, or if the police had the right to take something owned by my client from them.

Whenever this question comes up, it is helpful to have a basic understanding of the rights each of us has under the U.S. Constitution.

The fourth amendment to the U.S. Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This applies to all law enforcement officials, including state and local police, and F.B.I. agents.

So, in order for a police search to be constitutionally valid, a judge must have issued a valid search warrant (upon probable cause, supported by oath or affirmation), unless there is a valid exception to the warrant requirement (more on this later).

Let’s break this down a little further:

Search warrants: requirements

A search warrant must be issued by a federal or state judge, and gives the police the right to search for items that may be evidence of a felony or evidence that a particular person committed a felony.

As the constitution tells us, search warrants must specifically describe both the area to be searched and the item(s) being searched for.

Search warrants: validity

However, just because a search warrant was issued does not mean that it is a valid warrant!

In some cases of police misconduct, a police officer will intentionally mislead a judge about the facts to get the warrant. In other cases, a warrant might not be specific enough about the area being searched or the item(s) being sought.

In still other cases, warrants may be invalid because the issuing judge was biased in some way.

Search warrants: “knock-notice” rule

In California, even with a valid search warrant, the police can only use force to carry out the search warrant if, after telling you about their purpose and intent, you refuse to let them enter.

Police may overstep their authority in this area if they fail to state their purpose for being there, if they use force while stating their purpose or if they enter your home or car while the warrant is being issued.

Exceptions to search warrant and knock-notice requirements

If an exception exists, the police do not need to obtain a search warrant from a judge before conducting a search. Valid exceptions include:

  • Inspection searches at international borders
  • Searches/seizures done with voluntary consent
  • Searches/seizures incident to a lawful arrest. This includes situations where the police are searching for criminal evidence that may otherwise be destroyed, or situations where there may be weapons that could be used against the police
  • The “automobile exception”, where the police have probable cause to believe there is criminal evidence in a vehicle
  • The “plain view” exception says that, while police are conducting a search that is otherwise legal, they can search obviously incriminating other evidence that is in plain view
  • In emergency situations where a search is necessary to prevent serious property damage or physical harm, or to locate a fleeing suspect
  • Searches where there is otherwise no reasonable expectation of privacy. You generally do have an expectation of privacy in your home, your cell phone, your computer, a hotel room or in a tent. You generally do not have an expectation of privacy under the law when it comes to public places, things you have thrown away or otherwise abandoned, in the contents of a stolen vehicle, or the contents of a vehicle in which you do not have any ownership interest.

The “Exclusionary Rule”

If you and your attorney believe you were the victim of an unlawful search or seizure, your attorney may invoke the “Exclusionary Rule” to ask that the evidence be excluded in your case. If the evidence is successfully suppressed, it cannot be used against you in a criminal trial.

The Exclusionary Rule applies both to evidence found during a search that wasn’t valid and to evidence that was discovered indirectly through an illegal search. This is sometimes referred to as the “fruit of the poisonous tree.”


You have protections under the U.S. constitution, but a determination about whether a police search and seizure action was valid will depend on a variety of circumstances, as described in this article.

You deserve to have an experienced criminal defense attorney behind you every step of the way. If you believe you may have been the victim of an illegal search and seizure action, contact us today.