With or without a warrant, you may find yourself subjected to police searches, and these searches, upon your person or property, could fall anywhere on the spectrum of legitimacy and legality. How search and seizures might apply to your home, property, or phone, for instance, depends on several key factors and prerequisites of California law. In any case, when dealing with law enforcement in these circumstances, many are not even aware of the legal rights that they can exercise. Whether an officer is trying to coerce you into giving permission for a search, or law enforcement presents you with a seemingly legitimate search warrant, you have options.
While this article will generally speak to the execution of search warrants in California, much of the information will also translate to many other states within the U.S. As the reader, you will likely find information relevant to your needs.
1. What are the prerequisites for obtaining a search warrant?
While a search warrant is obtained on behalf of the prosecuting agency working through the state, the warrant must be signed and issued by a judge. Police cannot unilaterally issue a search warrant, the intention behind this being that a neutral third-party sign-off on any searches. The issuing and execution of a search warrant must be based on both the reasonable belief that a misdemeanor or felony has been committed, and the reasonable belief (and likelihood) that evidence pertaining to a criminal investigation can be found in the area specified by the warrant. If evidence is found, through that search, law enforcement have the right to seize that evidence. A search warrant must always be obtained before any search is conducted, however California state law, there are exceptions to this rule: if, for instance, police have ‘probable cause’ that a vehicle has evidence pertaining to criminal activity. This is often referred to in DUI cases: erratic driving that might suggest that the driver is under the influence, or the smell of alcohol within a vehicle, for instance, is enough for police to cite probable cause. Generally speaking, the threshold as to what constitutes probable cause, in relation to automobile searches, is relatively lower than probable cause of criminal activity in a residence or some other privately owned space. The right for police to search a vehicle, by way of suspicion of illicit activity or contraband, falls under the umbrella term known as the ‘automobile exception,’ which originated during the prohibition era to prevent the transport and sale of alcohol.
Another exception for police needing a search warrant is the ‘plain view’ doctrine, which is when police find incriminating evidence, be it weapons, narcotics, or any illicit item, within obvious sight.
Police reserve the right to stop and frisk without probable cause, in search of possible weapons during what is known as a ‘Terry stop’. A ‘Terry stop’ is not an arrest, but police can stop and question you for a reasonable amount of time. A ‘Terry stop’ can be conducted based on a ‘reasonable suspicion’ of criminal activity– a lower standard than ‘probable cause’. A Supreme Court ruling cites that holding a person for a relatively short amount of time, based on reasonable suspicion, does not infringe upon one’s Fourth Amendment rights to unreasonable search and seizure. However, it is easy to see how a ‘Terry stop’ based only on ‘reasonable suspicion’ can be used by law enforcement as a means to obtain ‘probable cause,’ possibly leading to arrest, and forfeiture on part of the suspect to their full rights. Oftentimes, well-intended individuals who try to cooperate with law enforcement during questioning, may inadvertently incriminate themselves or others, leading officers to exercise a search and seizure under the guise of ‘probable cause.’
Police do not need a warrant to search a person or property, if the suspect has given verbal consent to do so. Once permission is given, the alleged suspect has waived their Fourth Amendment right. The consent must be given voluntarily, without threat of force. Still, it is not uncommon for police to coerce or strongarm the suspect, asking in an aggressive tone, or in a tone to suggest that they are on the alleged suspect’s side, in order to get that verbal consent, and begin searching a vehicle, residence, or the suspect themselves. As an important side note to renters, especially, when two residents are occupying the same building, one person’s refusal for police to conduct a search negates the other person’s verbal consent. In some instances, a third-party with authority over the property can give verbal consent– a landlord can give permission for police to search the common grounds of a property, for instance. In a final example, police may forgo a search warrant in the presence of immediate danger to life or public safety.
Remember your right to remain silent during questioning, even during a seemingly benign Terry stop, as this will protect you from police obtaining that probable cause to conduct a search. Do not assume that law enforcement will behave in a way that safeguards your rights, and do not assume they have your best interests in mind. Oftentimes, their primary goal is to find some way to incriminate you, and not always through strictly legal means. Police may rely on the suspect not fully understanding their rights, so that evidence that could be later construed as inadmissible go overlooked.
2. How do police act on tip offs and informants to get a warrant?
In California, probable cause of criminal activity– the foundational basis of obtaining a search warrant– can sometimes be obtained through anonymous tip offs or police informants. Police acting upon these resources oftentimes represents a morally gray area within the law, inviting plenty of debate. It brings into question whether police should conduct a search and seizure on a person, circumventing the need for a warrant, citing one person’s statement as probable cause, especially considering the person presenting the information could be unreliable. In the case of Navarette vs. California, police got an anonymous tip from a driver, saying that they had been run off the road by a man in a pickup truck. The anonymous person in question was able to provide police with the license plate, make of the vehicle, and direction they were headed at the time of the incident. When police stopped the suspect, they had found thirty pounds of marijuana in the vehicle. When arrested, the suspect named Navarette argued that the police did not have sufficient information for probable cause, citing their inability to confirm the reliability or identity of the caller. The case went to the Supreme Court, who voted 5-4 against Navarette. The majority opinion stated that the person who provided the anonymous tip was an eyewitness who provided police with reasonable suspicion that Navarette was drunk at the time. To that end, police were working based on the ‘automobile exception,’ therefore the law, as defined by the State of California, gave them the means to conduct a warrantless search.
Anonymous tips, while providing police with ‘probable cause’ in the instance of stopping a car, California law defines different parameters for how a tip-off can be acted upon in different situations. An anonymous tip alone is not enough to give police probable cause to search a house or a place of business. Again, the definition of ‘probable cause’ is treated differently with different scenarios.
The types of tip-offs so far covered have been specifically referring to citizen informants– people who just happen to witness a crime or have pertinent information to an incident. Citizen informants come to police with this information without expectation of anything in return. Police confidential informants, on the other hand, are those who have some sort of arrangement with law enforcement for compensation for the information provided. You might recognize them by their unflattering monikers such as “narc,” “snitches,” or “rats.” Whatever the case, these informants cover an extensive array of different personal motives and means of operating with law enforcement. The most obvious examples of the use of these informants are in complex drug cases with many suspects involved. Police might press one suspect to inform on drug trafficking related activities, and gather evidence to build a stronger case against others involved. In return, the informant might get a lesser charge, or some court leniency upon sentencing. In other cases, a police confidential informant could simply be someone in it for the cash payment. Whatever the situation, the use of police confidential informants comes with some caveats, and represents some morally gray area in law. Police themselves admit there are issues with the use of informants. The informant may only be telling law enforcement what they want to hear; they’re incentivised by their compensation, and more information means better compensation. Officers themselves cannot always keep their promise of compensating the informant– in many cases, it’s simply out of their hands. Even when using non-compensated informants, the question of motive and human fallibility come into play. It’s easy to see how law enforcement could act on a tip-off that originated purely from the informant’s desire for revenge against the suspect. In the instance of a tip-off that states or implies an imminent danger, law enforcement usually cannot attain the pertinent background information necessary on the suspect before acting upon that information. This is often where racial profiling and biases come into play.
The use of informants often come into play when law enforcement petition a judge for a search warrant. However, since the use of informants comes with plenty of caveats and varying levels of reliability, a judge can compel police to disclose the identity of the informant to ensure the validity of the information. Keep in mind, just because the identity of the informant is disclosed to the judge at this stage in the process, does not mean that the identity will be disclosed to the jury should the case reach the point of trial.
3. When can law enforcement search my phone?
As a citizen, it is important to bear in mind that the circumstances in which police can search your phone are fairly limited. Like with residencies and places of business, police must obtain a warrant, with the notable few exceptions, to search your phone. Again, the warrant must be signed by a judge based on the reasonable suspicion of criminal activity, or the ‘probable cause’ that a California felony has been committed, and that the data on the phone will contain the pertinent evidence to affirm this. The search warrant must specifically define what kind of evidence police are searching for, in relation to a specific charge. Police cannot use the findings of that search to build a case against the suspect that are not related to the relevant charges being investigated. For instance, if police secure a warrant to search phone data with the specified intention of finding evidence of gang related activity (as per outlined by the search warrant), yet they inadvertently come across evidence to suggest that person is selling drugs, law enforcement cannot use those findings to build a new case against the suspect, and bring forth new charges.
In another rare instance exempting the need for a search warrant, law enforcement are permitted to search one’s phone at an airport or border. California courts have backed this by citing that one has a lesser expectation of privacy while within those areas.
Police may be able to search your phone, lastly, by demonstrating an immediate need to do so, such as in preventing the imminent destruction of evidence, aiding police in the pursuit of a suspect, or in the case of preventing someone seriously injured or presently in danger of harm. Per California law, while executing a lawful arrest, police can seize your phone until a warrant to search your data is secured. However, even though police can lawfully seize your phone during a legitimate arrest, this still does not give them access to search your phone. If a police officer seizes your phone by way of a lawful arrest, they may try to take it a step further and insist that you unlock your phone for them. Know your rights: even when law enforcement comes into possession of your phone, even through means of legitimate arrest, the searching of your phone must be backed by a warrant. Even though ‘probable cause’ and a legitimate arrest grants officers the right to access and search your car for instance, the same does not apply to personal phones. In many instances, you may find the officer you’re encountering attempting to use intimidation tactics such as raising their voice in order to get you to either surrender or allow them to search your phone. If you can later prove that such actions by the officer occurred, the evidence garnered during that time will become inadmissible.
This protection against phone searches, even when under arrest, originates from the United States Supreme Court Ruling Riley v. California. The historic, unanimous decision ruled that cell phones are “fundamentally different,” from anything else someone might have on their person, as phones act as an intimate and thorough recording into people’s lives; while police procedure states that police can search items on the suspect’s person during the time of arrest, the ruling on Riley v. California maintains that an arrest itself still cannot allow police to pry so intimately into someone’s life, without a warrant.
Like with any case, a warrantless search and seizure can be conducted on one’s phone with the verbal permission of the person being questioned or investigated. Do not give officer’s that permission; you never know what detail, however small, might be construed, rightly or wrongly, as evidence to be used against you. One important aspect to remember is that you can always withdraw your consent to a search and seizure of your phone, once that permission has already been given. If the officer continues to search your phone, even after withdrawal of your consent, the evidence gathered from that point on can be inadmissible as evidence used against you.
4. Can police seize and search my phone while I am recording them?
In light of recent publicity and outrage to police misconduct, law enforcement find themselves being recorded on cell phones routinely at this point. Officers often insist that the individual cease recording on their phone, or the officer might attempt to seize and search the phone. Always remember that 1) police still need a warrant to seize and search your phone, or have probable cause that criminal activity is presently taking place, and 2) per California law, citizens have the right to take photographs and videos of things on or within plain sight of public areas, where people have a right to be. One does not have the right to record what people say (per California’s “two-party consent law”). However, discussions with police as they are performing their duties are not considered private conversation, much like recording speeches at public events or documenting a protest.
5. What happens when a search has already happened or is underway?
Even once a warrant has been issued and executed, and the findings of said warrant has been submitted into evidence, your defense attorney might take several steps to protect you, and remove any illegitimate evidence compiled against you. Law enforcement are expected to maintain certain protocols when petitioning for, and executing a search warrant, lest any violation result in the suspect’s reduction or dismissal of the charges. A defense attorney might question if the warrant was, in fact, based on a probable cause. You may recall in an earlier paragraph about the use of informants acting not in good faith. While an informant is not enough to merit the search of someone’s house, it is enough for police to search someone’s car. In the case of the latter, if the execution of a search was done under the pretense of an unreliable informant, the evidence acquired could later be suppressed in court. Keep in mind that a warrant must always be built off the basis of reasonable suspicion. When there is indication that a warrant lacked probable cause, an attorney can file a motion to quash or traverse.
A warrant must specifically describe what items of evidence the police intend to look for. California law asserts that a search warrant must be detailed with “reasonable particularity,” meaning that the warrant must be so well defined in its intention, and with what items police are specifically looking for, that the investigating police officer has no room whatsoever to use their own discretion, when deciding what to confiscate for evidence. Remember earlier in the article how police officers cannot use ‘stumbled upon’ evidence that they weren’t necessarily looking for against you; the same holds true when police search your home. There are several examples of descriptions not found to be sufficiently clear, which did not fulfill California’s standard of ‘reasonable particularity within a warrant:
- “Other evidence”
- “Stolen property”
- “All financial records”
Sufficient lack of specificity could be cause for a defense attorney to file a motion to suppress evidence, one the case has reached the point of a trial.
When police are conducting a search, as outlined by a warrant, they are expected to secure the premises, notify the suspect of the search, provide a receipt of anything that was seized in the process, and return the warrant to the issuing magistrate. Bear in mind, that the police’s failure to do one or more of these things will not invalidate the search. However, if police fail to inform the suspect of a search in some hopes of catching them off-guard, this could be construed as an unreasonable search and seizure. There are only a few instances where keeping a suspect in the dark about search has some basis in legality. If you have found yourself completely surprised by a search, it could be worth bringing up to your attorney. A search and seizure should always be used to gather evidence based on reasonable suspicion– it is not there to create a new case out of thin air. Remember to consider this if you, yourself are subjected to a search, with or without a warrant. And always remember your right to remain silent.