Police need a warrant to conduct a search in nearly every case. They get a warrant by showing a California judge or federal judge that there is sufficient probable cause to conduct a search.
If the judge determines sufficient probable cause, then a warrant will be issued for police to search for specific items in a specific place.
Often the description of what’s being sought might be somewhat general like “drug paraphernalia and anything associated with the buying, selling or using of illegal substances.”
There are three common exceptions to the above.
Police do not need to obtain a warrant before conducting a search in following instances:
- The first exception is called the “plain view doctrine.” This refers to a situation in which the police, during the course of legal police business, see something of interest in plain view. For example, if you consent to talk to the police inside your home and an officer happens to see drug paraphernalia in the home or an item fitting the description of something that has recently been stolen, an officer can legally seize the evidence without a warrant.
- Second, the police can also legally conduct a warrant-less search if you give consent for them to do so. This typically happens when a person believes they have nothing to hide or they think refusing to consent to the search will be grounds for an arrest. Both of these are mistakes. Many times, during a search, law enforcement officers will find what they believe is evidence of a crime even if no crime has been committed. Also, in nearly every situation. no one must give permission to have their property searched unless there is a warrant. You cannot be arrested for asserting your own constitutional rights.
- Additionally, a police officer can conduct a “search incident to arrest” without a warrant. This means that during the course of a lawful arrest — one that’s based on probable cause — the officer can search the arrestee and the immediate surroundings for weapons or for evidence the police fear might be destroyed. However, the search is limited to the area within the suspect’s “immediate control.” This typically means that police cannot search beyond the room they are in when they make the arrest. If the officer or officers believe there might be other dangerous suspects in the location, they can do what’s called a “protective sweep” to look for people who might be concealing themselves. In the course of a protective sweep, the law enforcement agents can then legally seize anything incriminating within plain view.
- There are also emergency situations, known as “exigent circumstances” in which a police officer can search without a warrant. For instance, an officer or agent can follow a fleeing suspect into a location and search for evidence the officer believes the suspect plans to destroy. This is also the case if an officer has clear reason to believe that someone is in imminent danger. If the officer hears cries coming from inside a house, for instance, they can enter, make an arrest and perform a search incident to arrest.
If you feel that the police have performed an illegal search on you or your car, call Fiumara & Milligan Law, PC today for a free case evaluation at 707-571-8600 OR 415-492-4507.
OVER 40 YEARS of combined legal experience in YOUR corner!
We will FIGHT and PROTECT YOUR RIGHTS against unlawful searches and seizures.
We have offices conveniently located in Santa Rosa and San Rafael.
“The Right Attorney Makes All The Difference”
