• 714-594-6400

Posted on March 10, 2017

Explanation of Criminal Search & Seizure Laws in Orange County

Search and seizure laws are governed under the Fourth Amendment of the California and United States Constitution. The Fourth Amendment is applicable to government searches and not private citizens unless a private person was an acting agent or acting in the direction of law enforcement.  Additionally, a defendant contesting a search or seizure must have standing.  In other words, the defendant must have a reasonable expectation of privacy in the place that was searched.

A violation of someone’s Fourth Amendment right mandates all evidence garnered because of the unlawful search or seizure. In California, an attorney files a motion to suppress codified under Penal Code 1538.5 outlining the general theories of how a violation occurred. A hearing will be held where a judge will decide whether or not the search or seizure was legal within the California and/or Federal Constitution.

Search and seizure issues arise under all law enforcement contact scenarios such as traffic stops, home searches, or vehicle searches. Under some exceptions, law enforcement must be armed with probable cause prior to effectuating a detention or conducting an intrusive search on someone’s person or papers.

Standard of Proof

Reasonable Suspicion

The lowest stand applied to law enforcement is “reasonable suspicion.”  This requires that law enforcement be armed with reasonable articulable facts that criminal activity is afoot. Notice there is no requirement that a crime actually is or has been committed by the suspect. The standard applies to whether or not the police officer reasonably believes a crime is in progress or has been committed. This standard applies to all traffic stops such as speeding or running a stop sign.

Probable Cause

Probable cause is a higher standard than reasonable suspicion. It is the standard that is required to gain a search warrant or for officers to conduct searches where a warrant is not required. This is also the standard officers must achieve prior to effectuating the arrest of a suspect. Probable cause is “sufficient reason based upon known facts to believe a crime has been committed or that certain property relates to a crime.” Typically, probable cause must exist prior to an arrest, search, or seizure.

Types of Searches

Vehicle Searches

Contrary to popular belief, law enforcement may search a vehicle without a search warrant if the officer is armed with probable cause that illegal contraband is inside the vehicle or there may be evidence of the arrest inside. Officers may gain probable cause by the vehicle owner’s consent, plain view, or supported by other evidence such as witness statements.

Home Searches

Home searches are the highest scrutinized form of search.  Courts recognize an individual’s heightened privacy rights within their own home.  Law enforcement typically obtains a search warrant prior to entering a suspects’ home, but it’s not always required. This requires officers to be armed with probable cause and obtain the signature of a judge prior to the execution of the warrant. Usually, probable cause is proven to the judge by an officer’s own personal knowledge, independent supporting evidence, or through a confidential informant.

Probation Searches

When someone is on probation or parole, they do not completely relinquish their Fourth Amendment rights. Law Enforcement must still have a specific purpose for a search – e.g., probation compliance, the investigation into another crime, or for rehabilitative purposes. California law holds that a police officer cannot conduct a random search of someone’s home or vehicle if the search is deemed arbitrary or capricious.

For more information concerning search and seizure issues, contact an Orange County Criminal Defense Attorney.

Leave a Reply

Your email address will not be published. Required fields are marked *


six − 5 =

Practice Areas