The 4th Amendment states “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.” In addition, anything obtained during illegal seizure cannot be considered as evidence in court!
In this article it will be explained search and seizure conditions as well as important exceptions to these requirements.
First of all, we should define a search warrant. Under California Penal Code 1523 PC, it is “an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and, in the case of a thing or things or personal property, bring the same before the magistrate.”
Pursuant to California Penal Code 1525 PC, a search warrant “cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.”
There are a lot of specific points in searching and seizure a house even with a valid search warrant. If the warrant is issued for the house, it does not mean that the police can search your car outside or if they are looking for a stolen car, it is not allowed to search your underwear because it is impossible to hide it there. In order to get to know why and when the search warrant has been issued, you can ask the officer to read it to you.
Let’s have a look at the case of “exigent circumstances” when an officer can enter a home to arrest someone without a warrant or/and without consent:
1. The officer must have probable cause to believe that the person to be arrested committed a crime and is in the home;
2. Exigent circumstances require the officer to enter the home without a warrant.
Under the term “exigent circumstances” we understand an emergency situation that requires swift action in order to:
– prevent imminent danger to life or serious damage to property;
– or the possibility of imminent evading of a suspect or destruction of evidence.
Example: An officer saw how the offender killed the victim and entered the house. In this case, he has the right to enter the house without any warrant.
It is considered that if someone is suspected of a DUI, police officers can enter without warrant because otherwise the evidence (BAC – blood alcohol concentration) can be destroyed.
In addition, a police officer can enter your house without warrant in four following circumstances:
1) There is consent of the person who is the homeowner or a person exercising control the property. However, it should be taken into consideration that a roommate or spouse cannot give his or her content to search the others private area on his or her behalf. A person can refuse to allow the police to search but officers are not required to tell about it.
2) That is a plain view. It allows an officer to seize evidence and contraband if it has been found in plain view during a lawful observation. This concept is also used by Federal Government Officers when they screening persons and property at airports.
3) Search incident to arrest – If a person is going to be arrested in his house for a crime, the officers may search the house in order to ensure safety (known as: protective sweep”). Additionally, they can search the house in order to prevent the destruction of evidence.
If the entering of home without warrant was unlawful, your attorney can file a motion to suppress evidence. It is possible to may move for the return of property or to suppress any evidence obtained in result of search or seizure on the following conditions:
– Search and seizure without warrant was unlawful;
– Search and seizure with warrant was unreasonable because the warrant was not sufficient on its face, the warrant did not described the property or evidence obtained, the warrant was not issued with probable cause or it took place any other violation of state or federal law.
We described the main scenarios of police entering home without warrant. Take into consideration that experienced police officers do everything to evade invalidating of evidence that can be discovered during their search. In order to fight unlawful entering your home without warrant, you should find a professional and experienced attorney who can provide legal assistance to you.
The Margarian Law Firm aggressively protects the rights of criminal defendants in California. You can always contact us in order to discuss your specific case and get your legal assistance. All information entrusted us will be confidential and private.
You may file your request online, by telephone or by mail. 818-553-1000