Search and Seizure Laws
The California Constitution and the 4th Amendment to the U.S. Constitution guarantee our right to be free from unlawful searches and seizures by police. Illegally seized evidence must be suppressed and excluded in any criminal prosecution against a defendant if his/her rights have been violated. With no admissible evidence, the case must be dismissed.
YOUR CONSTITUTIONAL RIGHTS INCLUDE (AMONG OTHERS):
- To refuse to have your personal property searched without a search warrant
- The right to no answer an offer’s questions or make any statements
- To refuse to open the door to your home unless there is an emergency or a search warrant
- To refuse to be detained or questioned without your consent
Under Prop 64, Marijuana and marijuana products involved in any way with conduct deemed lawful under state and local law under H&S 11362.1 (5) (c) are not considered contraband nor subject to seizure, and no conduct deemed lawful by that section shall constitute the basis for detention, search or arrest. (Investigating unlawful possession or use of marijuana in the vehicle and the passenger compartment is not protected if there is probable cause of marijuana in the vehicle and are subject to ticket if it’s not sealed or in a closed container.
Note from Bruce: See the “Invocation of Rights” wallet sized card inserted in the centerfold of my guide. This will help assure that your rights are invoked and thereby protected. See bottom of page 5 regarding Miranda Rights.
THE DEFINITION OF PROBABLE CAUSE:
“Probable cause” to search and seize must exist; otherwise, the evidence cannot be used against the defendant in court. There must be reasonable belief that a crime has been or is about to be committed (i.e. there is contraband present). In order to search homes or other private property, offers are required to have a warrant; however, automobiles can be searched without a warrant.
THE SMELL OF MARIJUANA: If offers or their trained dogs detect the smell of marijuana in a car, either burnt or fresh, they are able to search the suspect and the car because it’s a possible traffic violation to have an open and/or unconcealed container in the passenger’s compartment. Otherwise the smell of marijuana is not a basis to search one’s person. .
Note From Bruce: The smell of marijuana and observation or detection of less than an ounce, or less than 6 plants, or less than 8 grams of hash by adults, do not create probable cause, and there is no basis to search or seize under those circumstance per 11362.1a5c H&S code (see Prop 64) Exceptions include driver and passenger areas of a vehicle
REASONABLE EXPECTATION OF PRIVACY IS REQUIRED FOR A DEFENDANT TO HAVE “STANDING” IN ORDER TO SUPPRESS EVIDENCE: In California, many other states, and under Federal law, the defendant must have a reasonable expectation of privacy, also known as “standing”, in the location of the search in order to challenge the admissibility of illegally-seized evidence and have it suppressed.
CAR PASSENGERS: Those who have their possessions (i.e. backpacks), in someone else’s car have no standing to challenge an illegal search. There is no recognized right of privacy in someone else’s car unless you are the driver at the time of the search. However, all persons have a reasonable expectation of privacy of the clothing they are wearing and anything on them. Passengers and Drivers can challenge an unreasonable cause for the stop.
OVERNIGHT HOUSE GUESTS HAVE STANDING: Overnight guests have the same right to object to an illegal search as the occupants of the home. Places such as campsites, motels and hotel rooms are also protected.
BACKYARD FENCES MAY CREATE RIGHT OF PRIVACY BUT NOT TRASH CANS OUTSIDE THE PROPERTY: Renters and homeowners with enclosed yards (a six foot fence, even with small cracks) are protected from any police peeping through the fence, but not from aerial observation. Police may not use ladders to see over an enclosed fenced yard. Trash cans that are left outside of the property can be searched without a warrant for plants or other incriminating items constituting probable cause are found, a search warrant can be issued for the residence and the entire property. In addition, aerial surveillance made, may not be as violation of privacy rights, unless the surveillance is persistence.
NO CONSTITUTIONAL PROTECTION WHILE IN JAIL AND IN PUBLIC ETC: There is no right of privacy in a police car, in jail, during telephone calls, or in visiting rooms or in the parking lots of jails; however, there is a right to have private conversations during in-person meetings with lawyers or clergy. There is no right while in a public place.
CONSTITUTIONAL PROTECTION REGARDING PHONES, TEXTS, INTERNET: Conversations on hard wire, on cell phones, and in telephone booths are protected, unless one party agrees to the police listening in. Cordless phone users do not have an expectation of privacy because neighbors can hear conversations with the same frequency. Police may consecrate a suspect’s cell phone and read incoming text messages when making a lawful arrest for a drug offense. However, they need a search warrant to search through the cell phone’s message log unless consent is given. However, if the text is visible in plain view on the screen they can use that information.