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California Search and Seizure Laws – 4th Amendment and California Penal Code 1538.5

Posted by Raoul Severo | Sep 26, 2020 | 0 Comments

Search and seizures are part of the standard operating procedures in law enforcement; they are intended to ensure that all cracks and crevices in a crime scene are searched and cleared. That is to ensure that no shreds of evidence are missed or left undiscovered because even the smallest of proofs can make or break the case. That is why law enforcers, especially crime respondents (i.e., uniformed personnel and detectives), are mandated to sweep the area from one corner to another dutifully. However, laws are also implemented to protect the rights of the accused from being subjected to dehumanizing searches.

The citizens of the United States are legally protected by the American Constitution under the 4th amendment. The statute stated that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This means that, the right for proper Search and Seizure even when under accusation is an inalienable right.

This jurisdiction is applicable to cases under both the Federal Bureau of Investigation and State (and local) police. Meaning, law enforcers cannot search a private property unless they follow the specific protocol:

  •         Having obtained a legit search warrant from the judge, or
  •         The search falls under the exceptions recognized by the Federal Government and California Courts:
  • The search/seizure operation was done under voluntary consent from the accused;
  • The search/seizure operation was done as a sweep during a lawful arrest;
  • Border security searches
  • Vehicular search with probable cause
  • Seizure of obvious incriminating items
  • Searches during emergency situations to prevent harm

Victims of unlawful search and seizure in the state of California can file a motion and ask the court to exclude any pieces of evidence accumulated through dehumanizing means.

Aside from the 4th amendment, it also is written in the California Penal Code 1538.5 that a defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:

  1. The search or seizure without a warrant was unreasonable.
  2. The search or seizure with a warrant was unreasonable because any of the following apply:

2.1. The warrant is insufficient on its face.

2.2. The property or evidence obtained is not that described in the warrant.

2.3. There was no probable cause for the issuance of the warrant.

2.4. The method of execution of the warrant violated federal or state constitutional standards.

2.5. There was any other violation of federal or state constitutional standards.

Law enforcers should strictly follow the standard operating procedures to avoid giving the criminal any loophole that can lead to lessening, if not totally dismissing, of charges.

Legal Support

A victim of unlawful search and seizure can fall victim to an oppressive system. To avoid this unfortunate fate, it would be the best for the defendant/s if he/she/they hire attorneys to represent them in court. A good defense lawyer can motion for the exclusion of any or all evidence gathered through unlawful means. This means that there will be chances that the accused will be facing fewer charges if the lawyer has not dismissed them yet. With the help of an experienced attorney, the victim can also sue the officers who have wrongfully searched/seized and/or tampered/planted evidence with the intent to incarcerate the defendant. This lawsuit can lead to the termination of the officer/s from service and maybe rightful and reasonable compensation under the rule of law.

If you or someone you know has been a victim of illegal search and seizures especially ones resulting in planting or tampering of evidence related to a crime, the best course of action that you can take is to seek professional help from our criminal defense lawyers at the Office of Raoul Severo. Aside from giving knowledge about one's legal and constitutional rights, we also provide first-class services to help you get out of legal conflicts. 

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