San Diego Criminal Defense Attorney Explains Police Searches

San Diego Unlawful Search LawyerSan Diego Search & Seizure Lawyer
The Fourth Amendment to the US Constitution guarantees our right to be free from unreasonable searches.  While many might tend to focus more on the "unreasonable" part of that phrase, understanding exactly what conduct qualifies as a search is essential to understanding Fourth Amendment law and our rights to be free from unreasonable searches.  Sometimes, it is obvious that a search has taken place; police, while executing a search warrant, for example, who rummage through an entire house have certainly conducted a search.  On the other hand, if, for example, a suspect is shooting a gun at police, and the police recover the gun, it will not have been recovered as a result of a search.  It is the gray areas in between these extremes that can be the subject of important litigation.  If the police conduct a search, or even just a pat down, the government must be able to show that there was justification to do so.  Where no search occurred, Fourth Amendment protections are unlikely to apply.  For this reason, it is important to have an attorney who can show both (a) that a search actually took place, and (b) that the search was unreasonable (and therefore violates the Fourth Amendment).

Items observed in plain view do not constitute a search.  The plain view, an exception to the warrant requirement, permits officers to seize items which they can observe out in the open and immediately recognize as contraband, so long as the officers are lawfully preset in the area where they are.
  This doctrine most frequently applies to traffic stops that escalate to a search because the police observe a weapon or drugs in plain sight.  Police officers often use the fact that they see something loosely associated with crimes, but that also serve a legitimate purpose as a justification to conduct a further search.  Some examples include torch lighters, baseball bats, ammunition, etc.  These searches should be challenged in court.  Additionally, the courts have noted that police may not move items to expose more evidence to their "plain view" under this doctrine.

In 1967, the Supreme Court outlined a unique category of quasi-search, giving officers leeway to briefly detain someone and conduct a pat down for weapons without probable cause.  This new limitation on our rights has been at the center of many major Fourth Amendment discussions.  Police officers need only "reasonable suspicion" a standard lower than probably cause in order to engage a person in a stop and frisk.  This means that police do not need as much evidence in order to conduct a pat-down.  All traffic stops are an extension of the Terry stop "investigatory detention" analysis.  Reasonable suspicion is a low standard, but does not mean that an officer may stop someone on just a whim.  The officer must be able to point to specific factors that indicate criminal activity is afoot.  Only if the brief investigatory detention yields additional evidence (amounting to probable cause) may the officers search a suspect.  There courts have ruled many times regarding whether reasonable suspicion exists.  Flight from police in a high crime area does not rise to the level of probable cause for arrest or a full-blown search, but does give police reasonable suspicion to perform a Terry stop (Illinois v. Wardlow).  Further, a Terry stop cannot unduly delay a suspect; a 90 minute detention is too long and requires probable cause (United States v. Place).  A pat down is limited to a pat down of the outside of a suspect's clothing.  In the Terry case, officers observed a bulge that they believed to be a weapon.  A quick pat down confirmed that the bulge was in fact a gun.  In Minnesota v. Dickerson, the Court addressed a Terry stop that exceeded the permissible scope.  The suspect had a small quantity of crack cocaine in his jacket pocket.  A pat down of the outside of Dickerson's clothing could not have revealed to the officer that the small object was contraband.  The officer used his fingers to squeeze the object.  In order to justify manipulating the object in the pocket as he did, the officer would have needed probable cause, not just reasonable suspicion.

The test for whether a search is reasonable or not is whether a person would have a reasonable expectation of privacy.  Walking around in the open, we have very little reasonable expectation of privacy, except maybe that of our pockets and secreted effects.  In a windowless private basement, a greater expectation of privacy would exist.  Again, there is a gray area.  Putting up a high fence, hedges, even a wall around your property does not give rise to a reasonable expectation of privacy.  In 1989, the US Supreme Court, in a case called Florida v. Riley, held that police could fly over a property and look down without violating the Fourth Amendment.  The court reasoned that the a private citizen could do the same, even though most people do not have planes or helicopters.  A decade later, the Court reached a very different result in a case called Kyllo v. United States.  In that case, the Court held that using infrared detectors to scan the outside of buildings, looking for marijuana grow operations was a search and required a warrant.  The court reasoned that because the technology police were using was not readily available to the public, there is a reasonable expectation of privacy.  This discrepancy in the law means that there is room for argument with this Fourth Amendment issue.  As emerging technology continues to allow officers new ways to invade our privacy, it is important to have a passionate, knowledgeable, intelligent attorney on your side, arguing for your Fourth Amendment rights.

Sometimes.  The US Supreme Court has recently held that a K-9 sniff at the front door of a home is a search.  Still, a roadside sniff that does not unreasonably delay the driver is still permissible and does not require a warrant.  As marijuana laws become less and less restrictive, the practice of using police dogs to sniff out drugs will probably dwindle, because (1) marijuana is the most commonly possessed illegal drug at present, and (2) it has the strongest odor and is most likely to be correctly identified by the K-9.

Police may not place a tracking device on a suspect's car unless they obtain a warrant first.  There are still, however, lawful methods for police to use tracking devices.  In an important Fourth Amendment case, the US Supreme Court ruled that the DEA was permitted to put a tracking device before a sale to a drug dealer, with the consent of the initial seller.  Although the buyer had no idea the tracking device was in the barrel, it was there when they took possession of it.  (United Stats v. Karo).  The court found that there was no seizure, simply a (minor) trespass.

Does going through your trash count as a search?  Not according to the US Supreme Court.  In a case called California v. Greenwood, the Court determined that property discarded with the trash is no longer subject to a reasonable expectation of privacy.  Though trash is placed out on the sidewalk to be picked up by the trash collectors, there are many instances of trash picking by non-police.


If you or a loved one has been arrested or charged with a crime, contact us now for a Free Consultation with a San Diego Criminal Defense Attorney.  The Fourth Amendment is one of our greatest protections, but it is too frequently overlooked, minimized and eroded.  If you believe that your case may involve search and seizure issues, talk to your lawyer about a motion to suppress the evidence.  If police found evidence of a crime while violating your rights, they may not be able to use that evidence against you.

Nicholas M. Loncar, Esq.
San Diego Criminal Defense Attorney
San Diego DUI Lawyer
T: 619-930-9515
By Nicholas Loncar        


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