Articles Posted in Search and Seizure Law

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Generally, the 4th Amendment requires police to get a warrant to avoid an illegal search. However, the 4th Amendment as it applies to drones is a new and unsettled area of the law. Currently, police do not need a warrant to fly a drone over your property for investigative purposes, but a new bill in California is proposing that law enforcement need obtain a warrant before conducting drone surveillance of your property.

Reasonable Expectation of Privacy and Drones

The legality of drone usage and the 4th Amendment warrant requirements hinges on whether drones violate your reasonable expectation of privacy. Over the last 25 years or so, courts have struggled with how new advancements in technology should be reconciled with 4th Amendment protections. With the widespread use of smartphones, GPS and other technologies, our privacy expectations have arguably been lowered.

Legal Precedent

Drone Search WarrantIn one case, the Supreme Court ruled that flying a helicopter 400 feet over one’s house was not a search at all and thus the 4th Amendment did not apply. The court’s decision stemmed from the fact that it was navigable airspace—as defined by the FAA—and therefore no different than a commercial airplane flying over your house.1

In another case, the Supreme Court specifically tackled the issue of what surveillance technology violated privacy interest.2 The court said that technology not readily available to the public (in that case thermal imaging) used to gather information that could not be observed by the naked eye was a search.

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Put yourself in this scenario for a moment: After a long day at work, you come home where you want nothing more than to just eat dinner, relax in front of the TV and get a good night’s sleep. Instead, you and your significant other end up in a fight and the neighbors call the police, who arrest you after an accusation that you tried to strangle your loved one.

iPhone Search RightsThe police suspect that a home security camera may have picked up video of the incident. The camera sends the footage to your smartphone, which you have protected by a fingerprint lock and a numerical passcode. They want to see the footage.

Can the police force you to place your finger on the scanner and then type in your passcode? A recent court ruling says the answer is both yes and no.

The above scenario is exactly what happened to David Baust, an emergency medical services captain who was accused of trying to strangle his girlfriend during a domestic argument. The police applied to get a warrant to order Baust to disable his phone’s security by using the phone’s fingerprint scanner and inputting his passcode. His attorney objected, and the court ruled that while he could be forced to provide his fingerprint, he could not be forced to turn over his passcode to the police.1

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The protection against unreasonable search and seizures is established by the Fourth Amendment to the United States Constitution. Law enforcement must either have your express consent or a valid warrant authorized by a judge in order to lawfully search your home, person or property.canstockphoto10492514.jpg

Most people understand that if police officers knock on your door and request access to your home, you do not have to give your consent for them to enter. However, it only takes one occupant of a household to give consent, even if the home is jointly owned, provided that the other occupant is not present at the time the police seek entry.

The U.S. Supreme Court decided in the case of Georgia v. Randolph 547 U. S. 103 (2006) that in situations where multiple occupants of a household are present, the consent of one person to a police search is not enough to override the objection of another. Any such search would be unreasonable.

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The Fourth Amendment to the United States Constitution provides you protection against unreasonable searches and seizures. Law enforcement must obtain a search warrant that is signed by a judge before entering your private property. The judge may only provide a search warrant if the police have shown:


  • It is more likely than not that a crime has taken place; and
  • Items connected to the crime are likely to be found in a specified location on the property.

When a valid search warrant is issued, the evidence from the search can legally be used against you in trial. But do the police always need a warrant to search you or your property? There are several situations in which they have the right to search you without a warrant.

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The Fourth Amendment protects individuals against unreasonable searches and seizures. However, Fourth Amendment protection applies only to unreasonable interaction between you and the police officer involved with a seizure of your person or your property. If the Fourth Amendment does apply in your case, it may be possible under California Penal Code 1538.5 to file a motion to “suppress evidence.”

Our experienced criminal defense lawyers at Wallin & Klarich can file this motion and potentially exclude evidence against you from being admissible in court.

Physical Force or Show of Authority

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Today’s so-called Smart Phones hold a great deal of information that has little relevance to phone calls. As such, some argue that police should be required to obtain a search warrant before inspecting the contents of a cell phone. They submit that obtaining evidence from cell phones without a warrant amounts to a violation of the Fourth Amendment protection against illegal search and seizure.

Our forefathers lived in a time predating even the most rudimentary communications devices by over a hundred years. How they would have regarded right to privacy issues with cell phones, then, can only be speculated upon. Case precedent, interpretation of the law, and higher court rulings must be relied upon for this reason. A case from 2007 has left many with continued questions, however, about the rights of an arrestee in regard to his cell phone. The lines have been drawn, and people are divided.

The case in question involves the arrest of an individual in 2007 for purchasing methamphetamine from a police informant. Upon the defendant’s arrest officers seized a cell phone they found in his pocket. Following an unproductive round of questioning a DEA agent searched the cell phone and found incriminating evidence. The defendant was ultimately convicted, and his case was appealed.

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The Court of Appeals in Los Angeles has just ruled that a visitor to an inmate has no expectation of privacy in any item that they may place in a jail or prison locker.

On September 29. 2011 the court ruled in People vs. Boulter that if you decide to place any item in a locker in a prison or jail facility it is subject to search and seizure without probable cause and without a warrant.

What this means is that if jail or prison officials locate anything that may be illegal to possess that you have placed in the locker you can and likely will be prosecuted for a crime.

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(1) Where a citizen feels “free to leave” and terminate the encounter at will. Here, there has been no “detention” under the law. This falls outside the scope of Fourth Amendment protections prohibiting unreasonable searches and seizures of a person, their home, papers, and effects;

(2) Brief “seizures”, which triggers Fourth Amendment protections and also allows police more authority if acting with reasonable, specific, and articulable suspicion;

(3) Arrests. An arrest must be supported by probable cause. To know and protect your constitutional rights under the Fourth Amendment, you must understand the meaning of “probable cause” and being “under arrest,” and their relationship to the facts of your case.

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The California appellate court has held that even though a vehicle does in fact have a temporary operating permit displayed somewhere on the vehicle, if the police officer does not see the temporary operating permit, and the vehicle does not have license plates, then the stop of the vehicle is legal. People v. Dotson ﴾3rd Dist., Nov. 30, 2009﴿ 2009 Cal. App. LEXIS 1904﴿.

In Dotson, the defendant, a convicted felon, was found to be in possession of a firearm, ammunition, and methamphetamine when a police officer stopped his vehicle. Although the vehicle had a temporary operating permit, an arresting officer had testified that at the time of the stop he saw that defendant’s vehicle did not have license plates. In fact, in a dimly lit parking lot, the officer had a hard time identifying even the color of the vehicle. He saw that there were no license plates, so he made the stop. The defendant argued that the officer lacked reasonable suspicion to make an investigatory stop since the defendant’s car had a temporary operating permit attached to the rear window.

The court disagreed with the defendant. Even though a vehicle is in compliance with the California Vehicle Code despite missing license plates if a valid temporary operating permit is correctly displayed, the question for the court is not whether the vehicle was in full compliance with the law at the time of the stop, but whether a police officer had articulable suspicion that it was not in compliance. In the absence of evidence that the officer saw a temporary operating permit, he had a reasonable, articulable suspicion that defendant was in violation of the vehicle registration laws. Therefore, the stop did not violate defendant’s Fourth Amendment rights.

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In general, police must have a warrant before entering a residence. Of course, certain exceptions apply to the general rule which requires a warrant before entry. One such exception is known as the, “emergency exception.” The emergency exception is often used by police and prosecutors to justify a warrantless entry. Hiring a Riverside criminal defense attorney who can identify all constitutional violations by the police may mean the difference between jail and freedom in your case.

The emergency exception contains three elements, as follows:

  1. Police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property

About Wallin & Klarich


Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.