San Diego Criminal Defense Attorney Explains Your Right to be Free from Unreasonable Search & Seizure

San Diego Search and Seizure Lawyer
The Fourth Amendment to the US Constitution protects our rights to be free from unreasonable searches and seizures by the government.  The delegates to the Constitutional Convention refused to sign into law the Constitution until the Bill of Rights (the first ten amendments) was added to protect individual freedoms.  Our framers and founders were deeply concerned with an overreaching government taking too great an interest in our private lives.  One of the most important concepts of protecting individual liberty was to ensure that agents of the government could not subject our citizens to searches or arrest without such action being deemed "reasonable".  Though this freedom has eroded throughout our history, the Fourth Amendment is alive and well in our office, and any courtroom we step into.  We fight hard for our clients, asserting their Fourth Amendment rights in court.  If you or a loved one has been searched or arrested without probable cause in San Diego, you need a passionate, knowledgeable, dedicated San Diego Criminal Defense Attorney.  Our office has an excellent track record asserting clients' Fourth amendment rights, often leading to dismissals of criminal charges or exposing police officer credibility issues to be used later at trial.

Not all government intrusions into our lives give rise to Fourth Amendment protections.  Items observed in plain sight or officer observations of a person or their property in a public place are generally not seen as a search by the courts.  Still, a search need not necessarily involve any physical entry into or onto property.  For example, the US Supreme Court has held that the use of heat detection technology to uncover marijuana grow operations is a search, requiring a warrant.  Though police used the technology from the street, it was not readily available technology and thus violated the Fourth Amendment.  The test for whether an intrusion into our privacy is a search is whether a reasonable person would expect to have privacy in their actions or possessions.  Accordingly, different levels of protection will apply to conduct occurring inside the home and conduct in public.  So while indoor, basement marijuana grow operations are likely to require a warrant to uncover, an outdoor grow operation is more likely to be discoverable without a search.  Another example of police conduct that does not rise to the level of a search is a pat-down.  The US Supreme Court has authorized officers to engage in a brief detention and pat-down of the exterior of a suspect's clothing without probable cause and without a warrant.  The reasoning is that the "limited" intrusion of a pat-down can be justified by a lower level of evidence (reasonable suspicion).  Pat-downs, searches, and even alleged plain sight observations should all be challenged in court to protect the rights of the accused.

The stop and frisk (pat-down) discussed above is considered by the courts to be short of a search, but the scope officers are afforded during these limited intrusions is also limited.  A pat-down may include only the outside of a suspects clothing.  If the pat-down does not give an officer probable cause to search, it must end right there.  In reality, police will often state that the pat-down gave them probable cause to search, and getting rid of the evidence would require a showing that the officer either: (1) initially lacked reasonable suspicion to conduct the investigatory detention, or (2) did not acquire additional evidence from the pat-down to justify a search.

Under California law, the remedy for unlawful searches is to have the evidence suppressed.  More often than not, when the evidence found as a result of the unlawful search is suppressed, the case will be dismissed.  This prophylactic rule exists to protect all citizens from unreasonable intrusion by law enforcement.  If police could just pat-down and/or search people, their vehicles and their homes without any reason, they would do so for arbitrary and discriminatory reasons.  If an innocent person is searched and violated, there will be no court case and no opportunity for the judge to address the rights violation.  This is why evidence is suppressed in criminal cases arising out of unreasonable searches.  By throwing out unlawfully obtained evidence, police are encouraged to respect people's rights and conduct searches only when authorized under the constitution.  Search and seizure issues are complex and require close attention to detail, thorough knowledge of Fourth Amendment case law and persuasive argument before the judge or magistrate.

Due to the public nature of automobiles, drivers have a lessened expectation of privacy in their cars.  Traffic stops are not considered charges, but are rather deemed to be a type of investigatory detention like a stop and frisk.  During a traffic stop, an officer might observe items in plain sight, smell the odor of marijuana, alcohol or other contraband, and engage in conversation with the driver.  Police do not need a warrant to search a vehicle, but will still need to have probable cause, consent, or to arrest the driver based on probable cause for arrest.  After a lawful arrest, police may conduct what is known as an "inventory search" of the vehicle, including opening up luggage, bags or other containers within the vehicle.


The most common justification for searches is that the person to be searched gave their consent to be searched.  Police officers are trained to use intimidation, lies and other forms of manipulation to obtain consent.  In reality, most "consent searches" are not voluntary, and informed citizens would assert their rights if they felt they were allowed to do so.  Police will frequently begin their searches without permission and assert that the lack of objection represents consent.  Clearly, this is not true consent.  It is important to note that the law defines the same word (consent) very differently depending on how well it suits the government's objectives.  For example, in many rape prosecutions, the issue of consent is the primary defense.  In these cases, the defendant will need to make a strong showing of affirmative consent in order to avoid prosecution.  At the same time, courts are likely to deem searches consensual, even where it would be clear to any reasonable person that there was in fact no consent, or that such consent was coerced by the use of fear, force or false information.  "Consent" obtained through the use of threats and fear should be challenged in court, but it is imperative that your attorney can make forceful, persuasive arguments.  The cards are stacked against the defense, but that does not mean these important rights are not still the supreme law of the land.

Knowing and asserting your rights during a police encounter are key to protecting your rights from being violated by police.  During encounters with law enforcement, it is important to make it clear that you decline to be searched and are not consenting to any police searches.  The police might very well ignore your demands, but it is important to assert these rights at the scene so as to better protect yourself in court.  When possible, it is also vital to preserve objective evidence of police encounters and searches.  Filming police can go a long way towards protecting your rights from being violated in the first place, or showing that a violation in fact did take place later down the line. 


DUI, Drug Crimes, Theft Crimes, Marijuana,Financial Crimes, Weapons, Homicide and more.

Search and Seizure issues have a deep, rich history in American jurisprudence.  Criminal defense attorneys protect these important Constitutional rights on a daily basis, not only helping our clients avoid criminal convictions, but also keeping police (at least a little bit) honest in their dealings with civilians.  If you or a loved one has been arrested, searched, charged with a crime or may be under investigation, you need an experienced, knowledgeable, passionate San Diego Criminal Defense Attorney on your side, fighting for 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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