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Search and Seizure Criminal Defense Attorney

When does law enforcement have the right to search me, my home or my property?  

In order to answer your question, we need to look at Fourth Amendment of the United States Constitution. In particular, the search and seizure provisions of the Fourth Amendment serve as the foundation of your privacy rights under the U.S. Constitution.

The Fourth Amendment reads as follows:

“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.”

As written, and interpreted, The Fourth Amendment places limits on the power of federal, state and local law enforcement to make arrests, search people and their property, and seize objects and contraband (such as for illegal drugs or weapons).

Simply put, the Fourth Amendment protects your privacy against “unreasonable” searches and seizures by state or federal law enforcement authorities. However, law enforcement may override your privacy concerns if the search or seizure is “reasonable.”

So, when is a police search/seizure “reasonable” and when is it “unreasonable”? Let’s take a look:

When a Law Enforcement Search/Seizure is Legal and “Reasonable”

  1. Law enforcement have obtained a valid search warrant from a judge, or
  2. Law enforcement have NOT obtained a valid search warrant but the search falls within one of a number of EXCEPTIONS to the warrant requirement. In general, these exceptions include:

Voluntary consent searches – you or someone with a lawful right gives permission for the police to carry out the search. The search must be “voluntary”; law enforcement may not threaten or intimidate someone into giving consent. For example, if the police do not have a warrant to search your home, but you give them voluntary permission or consent to do so, then they may conduct the search.

  1. Searches incident to arrest – when the police legally arrest you, and are looking either 1) for weapons that might be used against them or 2) for criminal evidence that could otherwise be destroyed.
  2. Automobile/vehicles – when police have “probable cause” to believe that the car or vehicle contains evidence of a crime. See also, Article on Probable Cause.
  3. Plain view searches – searches of clearly incriminating items that are in “plain view” while law enforcement is conducting an otherwise legal search.
  4. Exigent (emergency) searches – searches/seizures occurring in emergency situations that are necessary to prevent physical harm to someone, property damage or to keep a suspect from fleeing.
  5. Stop and Frisk Searches – the search of the outer clothing of a criminal suspect, while the person is first being detained, in order to ensure that they do not have a weapon which might be used against law enforcement officer. Sometimes referred to as a Terry stop.
  6. Inspection searches – certain international borders.
  7. Searches in situations or places when/where the individual has no legal expectation of privacy search. Examples include:
  • Abandoned property
  • Contents of a stolen automobile
  • Garbage left in a public place
  • Anything in open fields (e.g., barn)
  • Smells that can be detected by the use of a drug-sniffing dog
  • Property inside a vehicle, if you are a passenger in the vehicle and do not own or have any possessory interest in either the vehicle or that property


When a Law Enforcement Search/Seizure is “Unreasonable?”

Any search not falling under the elements above, and where you have a legitimate expectation of privacy, is an “unreasonable” search/seizure, and is thus illegal.

Examples of places/property in which you have a legitimate expectation of privacy that protects you from searches and seizures:

      • Your home
      • Your hotel room
      • Your purse
      • Your car
      • Your computer
      • Your cell phone
      • Personal property a student brings to public school
      • Public restrooms
      • Phone booths
      • Private portions of jailhouses

Some Examples

Example 1: 

John is selling cocaine out of his home. The police show up and search his home without a warrant. They find cocaine there, and they use it as evidence to charge him with California drug possession for sale.

In this case, John’s lawyer may successfully challenge the introduction of the cocaine as evidence because John had a legitimate, reasonable expectation of privacy in his home, and the police did not have the right to enter and search it without a warrant.

Example 2: 

Jasmine, a police detective, is building a case against Scott, whom she suspects is a dealer in electronic child pornography. Jasmine’s key piece of evidence against Scott is a statement by Adam, who was recently arrested for possessing electronic child pornography. As part of his plea bargain agreement, Adam names the people from whom he acquired the illegal materials – including Scott.

Based on Adam’s statement, Jasmine gets a judge to sign a warrant to search an apartment rented to Scott. The warrant specifies that it covers only that apartment, and authorizes a search for electronic child pornography materials on his computer. A search for child pornography in Scott’s apartment is thus legal.

An alternate hypothetical:  However, let’s say that when Jasmine and her colleagues search Scott’s apartment they do not find any electronic child pornography, yet do find a large stash of illegal firearms but only after they searched in a place where they could not have possibly found the child pornography   If they found the firearms in a place where the pornography could not have been located in the apartment, then Scott’s attorney may successfully move to have the evidence of illegal firearms suppressed and not used against him in court.

Example 3: 

Jason is a suspect in a bank robbery. The police go to his apartment, without a warrant. Jason is not at home—but his girlfriend Jenny is. She tells them that she and Jason are living together in the apartment. The police ask Jenny if they may search the room. She says yes and lets them in.

The police may search the room, and seize any evidence they find in it, legally. This is because Jenny has given them consent to search it—and because she lives there, she has the authority to do so.

Example 4: 

Thelma and Louis are sitting together in a parked car. When a police cruiser approaches their car, they quickly speed away, leading the police on a high-speed chase. Once the police catch up with them, they search the car—and find a large bag of heroin hidden under a passenger seat.

The heroine may be used as evidence against Thelma and Louis, even though the police did not have a warrant to search the car. But Thelma and Louis’ suspicious behavior—leading the police on a high-speed chase when they approached—created probable cause for a search of their vehicle.

Example 5: 

Police suspect that Aida has participated in a recent armed robbery. They obtain a warrant to search her home. The warrant delineates that they will be looking for the items stolen in the robbery, including jewelry and cash. When police search Aida’s home, they do not find the stolen items—but they do see the type of gun that is supposed to have been used in the robbery, lying on Aida’s coffee table. The officers seize the gun and later use it as evidence when she is charged with the robbery.

Here, the gun is admissible evidence even though it was not covered under the warrant. This is because it was in “plain view” while the police were conducting their lawful search—and obviously tied Aida to the robbery.

Example 6: 

Police suspect that Diane has been involved in a murder. When she is away, they enter and search her house without a warrant, and without her consent. Even though they do not find anything incriminating there, they do find a piece of a key to an apartment and papers that suggest they could find important information there about the murder. The police then go to a judge and get a warrant to search that apartment. While searching the room, they find the murder weapon.

Under the “fruit of the poisonous tree” doctrine, the weapon may not be used as evidence against Diane. The police had a warrant to search the apartment —but they only learned about the apartment through their illegal search of her house. So, her attorney can make a strong argument that the weapon should not

However, prosecutors may, possibly, be able to get around the “fruit of the poisonous tree” rule by making one of the following arguments:

      1. The evidence is far enough removed from the illegal search/seizure that the exclusionary rule no longer applies to it.
      1. The evidence was found through an independent channel, not just through the illegal search; or
      1. There is a “reasonably strong probability” that police would have found the evidence even without the illegal search.

If you are the victim of an unlawful search or seizure by law enforcement, then you and your California attorney may request the court to exclude any illegally obtained evidence from your case. This is generally referred to as the so-called “exclusionary rule.”  Usually, the procedure for getting illegally obtained evidence removed or “excluded” from your case is by way of a Motion to Suppress Evidence through Penal Code 1538.5 PC motion to suppress evidence.