Search and Seizure Laws California

As your federal criminal defense lawyer in San Francisco, my statutory and practical knowledge of the criminal justice system and long-standing relationships with the judges and prosecutors give me the ability to get the best deals in the courthouse.

Unlawful Search and Seizure


The laws governing search and seizure in California are in place to regulate law enforcement activity in that regard. The law protects residents from experiencing a violation of their person, home, or any other property without legal sanction.

California state law and the Constitution’s fourth amendment provide for these protections. However, these laws do not offer complete immunity from searches and seizures. In the two scenarios below, law enforcement can legally search you:

  • If the law enforcement officers have a valid search warrant
  • If the search can be classified in one or more exceptions to the warrant requirement under Federal and state law including probable cause

If you’ve been searched and the police obtain any material they use as evidence to bring criminal charges against you, you may be able to work around it. You can get the court to exclude the evidence from the trial. This is known as the exclusionary rule in the California Penal code.

It is an important pretrial motion that can win your case before any trial. However, for this motion to be granted, the search and seizure must have been done illegally. That is why it is crucial that you fully understand the provisions of the law in this regard. The legality of search, seizure, and arrest can be determined by a criminal defense lawyer reviewing the arrest record.

Reasonable Expectation of Privacy


The search and seizure laws only protect residents of California when they are in situations or places they can have a reasonable expectation of privacy. The law defines areas in which an individual can reasonably expect privacy, not individuals.

An unreasonable search occurs only where society and the law expect individuals to believe their privacy is guaranteed reasonably. This is in line with the fourth amendment of the US Constitution. Such places may include:

  • Your home
  • Any electronic device
  • Personal property
  • Hotel room
  • Inside a tent

If your property was searched and seized in a place where you had a reasonable expectation of privacy, consult an asset forfeiture attorney. They will be able to advise you on the view of the law and the possible remedies you can seek.

Search Warrants


Generally, a magistrate or judge grants a search warrant so that police officers can search a person, location, or vehicle for evidence of a crime and seize any evidence they find. It could be issued by a state or federal judge.

According to the fourth amendment, the warrant requirement is that there must be probable cause before it can be issued. Search warrants are in place to prevent unreasonable searches. In this sense, even unreasonable searches will be deemed reasonable if the warrants are properly obtained by the law enforcement officer(s).

Some of the circumstances where a judge can issue a warrant according to the California Penal Code include:

  • The item being searched for may serve as evidence that a person has committed a felony
  • The property is stolen
  • The object is with a person who intends to commit a crime with it

A valid warrant must not only prove probable cause, but also specify the area and the object being searched.



There are many situations where an unlawful search cannot be said to be taken place irrespective of the fact that there was no search warrant. Some exceptions differ based on the exact location being searched, e.g., a vehicle, person’s body, building, etc. Below are some exceptions to the warrant requirement:

General Exceptions:

  • The individual concerned gives their consent to be searched
  • Searches and seizures following a lawful arrest
  • Search and seizure is conducted when there is imminent danger to life or property to salvage the situation
  • Other situations where an individual should have no reasonable privacy expectation

Exceptions Applying to the Search of Cell Phones and Electronic Devices

  • When the owner authorizes the search
  • When there is an immediate need for information to pursue a suspect
  • To assist someone who is injured

Exceptions Applying to a Person’s Home:

  • Seizure of objects that are in plain view
  • If a person with authority over an individual’s home, such as themselves or their spouse, gives consent

Exceptions Applying to the Search of an Individual’s Person:

  • Routine searches such as international border searches
  • Frisking of a criminal suspect

Exceptions Applying to Vehicle Searches:

  • Law enforcement has probable cause to believe a vehicle contains evidence of a crime
  • Searching of a lawfully impounded vehicle for inventory purposes
  • When a car’s occupant is lawfully arrested or temporarily detained, and the police believe the vehicle contains evidence of a crime or dangerous weapons

Illegal Searches


If there is no warrant or warrant exception and the search is conducted in a place where an individual would have a reasonable expectation of privacy, a California search and seizure will be illegal. However, even with a search warrant, an otherwise legal search could be ruled illegal if the warrant is not valid.

Invalid Warrant


A warrant will be deemed to be invalid by the court if the following situations are the case:

  • If the law enforcement officials misled the judge into issuing the warrant
  • The search exceeded the limits of the warrant
  • If one can prove that the judge was biased in issuing the warrant
  • The warrant was very vague about the area to be searched and the item being looked for

Fruit of the Poisonous Tree


This criminal law doctrine extends the application of the exclusionary rule to not only the objects that were seized in an illegal search but also items discovered indirectly due to that illegal search.

An example is if the police found nothing during an illegal search of a person’s house except a hotel address. Then they obtain a warrant to go and search the said house and find an individual illegally possessing dangerous weapons there. Irrespective of the fact that the police got a warrant to search the second house, a qualified criminal defense attorney can argue that the objects found are inadmissible because they are an indirect result of an illegal search.

Remedy for an Illegal Search and Seizure


When someone experiences an unlawful search and seizure, they can seek a remedy. If the police attempt to prosecute you using the illegally seized item as evidence, your criminal defense lawyer can move a motion to suppress evidence before your trial.

If you have any questions concerning your case, contact Valery Nechay today to get the necessary clarifications and assistance.


If you are under investigation or charged with a crime, I will consult with you in person and at no charge to you.