San Diego Criminal Lawyer Explains the Warrant Requirement

San Diego Criminal Defense LawyerSan Diego Criminal Defense Attorney
A warrant is a specific grant of power to either (1) search a place, vehicle, computer, etc., or (2) arrest a person.  In California, when a law enforcement officer wishes to make an arrest or conduct a search, it is common to first obtain the appropriate warrant.  The officer must go to a judge and present sworn testimony that would authorize the intrusion.  A warrant-less search or arrest is presumptively invalid under both Federal and California law.  Though there are exceptions to the warrant requirement, an arrest or a search made without a warrant will be more susceptible to attack from the defense should the search or arrest result in criminal charges against a defendant.  It is for this reason that law enforcement officers are generally encouraged to get a warrant when there is time and opportunity to do so.  In San Diego, if a law enforcement officer wishes to search a home or make an arrest for a felony that they did not personally observe, they should get a warrant, even if an exception to the warrant requirement might apply. 

WHEN DO POLICE NEED A SEARCH WARRANT?
Generally speaking, all searches require a warrant.  Nevertheless, most searches are performed without a warrant.  A police officer may search with consent, probable cause, for their safety or due to exigent circumstances.  Though many judges in San Diego broadly interpret these exceptions to give police more freedom to search and deny others their privacy, these exceptions to the warrant requirement are among the most litigated issues when it comes to motions to suppress evidence.  The exceptions are most narrowly construed when the search in question involves the search of a home.  Intrusion by the government into the home is the chief evil that the Fourth Amendment aimed to address, and a search of a home is harder to justify on exigent circumstances and officer safety/public safety grounds.  While it may be difficult to obtain a search warrant for a vehicle, a house is not going anywhere.  In most instances of searches of a residence, it is argued that police had every opportunity to seek a warrant first.
More Information About Suppression Motions
More Information About Vehicle Searches

Search warrants are most common in cases involving: drugs, marijuana crimes, weapons, financial crimes, and more.

WHEN DO POLICE NEED AN ARREST WARRANT?
An arrest warrant is a document i
ssued by a judge or magistrate on behalf of the state, which authorizes the arrest of an individual.  Law enforcement officers who believe that they have substantial evidence that a person has committed a crime can go before a judge or magistrate to have a warrant issued.  The judge will review the proposed evidence and make a determination as to whether enough evidence exists for a warrant.  Though most arrests are made without a warrant, there are instances where an arrest cannot be made without a warrant.  In order to conduct a misdemeanor arrest, the officer needs to have personally witnessed the alleged crime.  Police get around this requirement in two ways (1) they will have a witness sign a "citizen's arrest" document, and (2) they will make a felony arrest for conduct that would clearly be misdemeanor conduct.  Such is the case in many domestic violence cases.

SHOULD THE WARRANT HAVE BEEN ISSUED?
In cases where there is a warrant, the search or arrest can still be challenged on grounds that the warrant was issued in error.  In these cases, the defense must point to unreliable/inadmissible evidence that was relied upon by the affiant seeking the warrant (the detective, usually).  If a search or arrest warrant should not have been issued in the first place, there will be a strong argument for suppression of the evidence.


PROBATION OR PAROLE STATUS AND SEARCHES
Frequently, those on felony (formal) and even misdemeanor (summary/informal) probation have, as a condition of their probation, a waiver of their Fourth Amendment rights to be free from searches.  This means that probationers generally must consent to searches when so requested by law enforcement.  Officers may conduct searches of a probationer's (or parolee's) person, effects, vehicle or home, without having to first obtain a warrant.  This does not, however, mean that all searches of probationers are valid.  In fact, these searches can still be challenged in court.  Often times what will happen is that the searching officer will be unaware of the probationer's search terms at the time of the search.  This does not necessarily invalidate the search as it may be justified on other grounds, but a police officer may not justify a search as a probation search without knowledge of the probation and search terms.

OTHER SEARCH AND SEIZURE TOPICS:

STOP & FRISK SEARCHES OF PERSONS
WHAT CONSTITUTES A SEARCH?
CONSENT SEARCHES
HOW TO SUPPRESS EVIDENCE
SEARCHES OF VEHICLES AND EFFECTS
HOW TO REFUSE A SEARCH

If you or a loved one has been arrested or charged with a crime, searched or investigated for a crime in San Diego, with or without a warrant, contact our office now for a Free Consultation with a San Diego Criminal Defense Attorney.  We can discuss any searches or warrants involved in your case as well as evaluate other defenses, discuss the possible and likely outcomes and get started right away in protecting your rights and working to get you the best possible outcome.  Criminal charges are scary, frustrating and can have serious consequences on your life and liberty.  We can help.  619-930-9515.

Nicholas M. Loncar, Esq.
San Diego Criminal Defense Attorney
San Diego DUI Lawyer
www.iDefendSanDiego.com
T: 619-930-9515
F:
619-930-9516
By Nicholas Loncar            
Picture
 


Comments


Your comment will be posted after it is approved.


Leave a Reply