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Legal vs. Illegal Search and Seizures in California

By San Diego Attorney on October 20, 2018

In California, law enforcement can search a person, vehicle, home, or other personal property if it is believed the person committed a crime. However, the Fourth Amendment of the U.S. Constitution protects all American citizens from unlawful search and seizure.

So, when can law enforcement conduct a search? When is a search and seizure considered illegal? And what happens to the contents found when a search has been conducted illegally?

Legal Search and Seizures

If police officers have a valid search warrant signed by a judge, they can conduct a search and seizure. Before obtaining a search warrant, law enforcement must meet several requirements and prove a number of elements to the judge issuing the warrant. Search warrants are not easy to obtain, but it can be done, especially in a longer investigation.

There are some exceptions that do not require law enforcement officials to obtain a warrant. They are:

  • Search and seizures performed with the person’s consent;
  • Search and seizures pertaining to a lawful arrest when the police are searching for weapons that could be used against them, or criminal evidence that could be destroyed;
  • Searches done for inspection purposes, such as when a person is crossing an international border;
  • Vehicle searches when the police have probable cause that there is criminal evidence within the vehicle, known as the automobile exception;
  • Searching items that are within plain view of law enforcement while they are conducting an otherwise lawful search;
  • Searches and seizures performed in emergency situations to prevent someone experiencing physical harm, property damage, or to find a suspect that has fled;
  • Criminal suspects who are frisked or have the exterior of their clothes searched in order to locate weapons after being detained; and
  • Search and seizures occurring in an area in which a suspect has no reasonable expectation of privacy.

These exceptions will vary depending on the type of property that is being searched. For example, searching someone’s home will have different requirements than searching someone’s smartphone.

Illegal Search and Seizures

Police officers cannot conduct a search and seizure whenever they would like to. They must have a warrant or meet specific requirements for conducting a search without a warrant.

In September 2016, Governor Jerry Brown signed a reform bill that made it more difficult for law enforcement to conduct seizures without a warrant. The bill, SB 443, requires that a person be convicted of a crime before property believed to be related to that crime can be seized. This is known as equitable sharing and takes effect when the property to be seized is valued under $40,000. The bill went into effect in 2017.

When police enter evidence obtained through an illegal search and seizure, that evidence may be inadmissible in court under the exclusionary rule, which was established throughout the entire country in 1961. This is an important consideration when a criminal case is being heard in court. If there is a piece of damaging evidence that was obtained illegally, it may be thrown out and greatly affect the outcome of the case.

How JD Law Can Help

For evidence to be thrown out of court by a judge, the defense attorney must prove that the search was illegal—either that the police did not have a proper warrant, or the search did not meet the exceptions.

Many times, a defendant will say the police had no authority to search his property, while the officer in question will claim he had the defendant’s permission to perform the search. It can be difficult to prove that a search and seizure was illegal, which is why it is so important to hire an experienced San Diego criminal defense lawyer to handle your case. JD Law will fight to ensure that your rights are upheld. Call us today for a free consultation at (760) 630-2000.

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Posted in: Criminal Defense

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A note from James N. Dicks:

Although COVID-19 has caused great uncertainty, we want to assure that our firm is operating remotely to accommodate all current, past, and future clients in need of any of our services. The best way to communicate with us is by telephone (760) 630-2000 or email info@jdlaw.law.

Currently San Diego Superior Courts are closed but are set to reopen on Tuesday May 26th, 2020 barring any
future orders.

Do not hesitate to contact us with any questions. Sending our thoughts and best wishes to you and your family. Please follow us on Facebook for any future updates.


Aunque COVID-19 ha causado una gran incertidumbre, queremos asegurarles que nuestra oficina esta operando de forma remota para todos los clientes actuales, pasados y futuros que necesiten alguno de nuestros servicios. La mejor manera de comunicarse con nosotros es por teléfono (760) 630-2000 o por correo electrónico a info@jdlaw.law.

Los Tribunales Superiores de San Diego están cerrados, pero están programados para reabrir el martes 26 de mayo de 2020, salvo una nueva orden.

No dude en contactarnos si tiene alguna pregunta. Estamos enviando nuestros pensamientos y mejores deseos para usted y su familia. Síganos en Facebook para seguir siendo informado de novedades nuevas.


James N. Dicks
jD LAW, P.C.

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COVID-19 Announcement

Although COVID-19 has caused great uncertainty, we want to assure that our firm is operating remotely to accommodate all current, past, and future clients in need of any of our services. The best way to communicate with us is by telephone (760) 630-2000 or email info@jdlaw.law. Do not hesitate to contact us with any questions. Sending our thoughts and best wishes to you and your family.


Aunque COVID-19 ha causado una gran incertidumbre, queremos asegurarles que nuestra oficina esta operando de forma remota para todos los clientes actuales, pasados y futuros que necesiten alguno de nuestros servicios. La mejor manera de comunicarse con nosotros es por teléfono (760) 630-2000 o por correo electrónico a info@jdlaw.law. No dude en contactarnos si tiene alguna pregunta. Estamos enviando nuestros pensamientos y mejores deseos para usted y su familia.

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