When can California police search you, your car and your home? When do they need to have a warrant? If the cops overstep their bounds, what recourse do you have?
We will answer all of these questions, as we explain California's search and seizure laws.
The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures. It states, "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."
In the landmark 1961 case Mapp v. Ohio1, the United States Supreme Court held that the Fourth Amendment is applicable to the states as well. This means that all California police, not just federal authorities, are bound by the Fourth Amendment.
But what exactly is meant by an unreasonable search and seizure? In this article, our California criminal defense attorneys2 will answer this question by addressing the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California Search Warrants; Police Misconduct; and Penal Code 1538.5 PC Motions to Suppress Evidence.
Let's start off with the basics. A "search" is any governmental intrusion upon one's personal privacy.3 A "seizure" takes place when there is a meaningful interference by the government with an individual's possessory interest in his/her person or property.4
Search warrant cases
A California search warrant allows the police to search
- your home,
- your car,
- your place of business, or
- any other specified area
that is suspected of containing evidence of illegal activity.5 Once the police find what they are looking for, the search warrant authorizes them to seize that evidence.6 Searches with a warrant are presumed to be lawful and valid.
Under California search and seizure laws, the burden is on the defense to prove that the warrant was invalid or unlawfully executed. Examples of ways to prove these claims include (but are not limited to):
- proving that the officer who applied for the search warrant intentionally misled the judge about the facts justifying the warrant (which could additionally justify pursuing a civil police misconduct case),
- proving that the warrant lacked specificity with respect to the place to be searched or the things to be seized such that the officers could not reasonably have presumed that it was valid, or
- proving that the judge who issued the warrant "abandoned his/her role of being neutral and disinterested".7
Searches without a warrant
When a search is conducted without a warrant, it is.for the most part.presumed to be unreasonable.8 Similarly, if the seized evidence
- was obtained without a warrant,
- was not listed in the warrant, or
- was obtained during a search that exceeded the scope (that is, limits) of the warrant,
it too, will be presumed to be an unreasonable and illegal seizure.
In order to rebut these presumptions, the prosecution must prove that the warrantless intrusion.and subsequent seizure.were nonetheless lawful and justified.9 The state usually seeks to rely on one of the exceptions to the requirement of a warrant:
Instances where the police can search you and your property without a warrant
Under California law as to search and seizure, the police may conduct searches--even without a warrant--in the following situations:
- Exigent circumstances ("Exigent circumstances are those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent
- physical harm to the officers or other persons,
- the destruction of relevant evidence,
- the escape of the suspect, or
- some other consequence
improperly frustrating legitimate law enforcement efforts.")10
- Consent (When a person freely and voluntarily consents to a search, there is no need for a warrant. This consent is typically revocable at anytime during the search.)11
- Search incident to lawful arrest (Immediately following an arrest, an officer is allowed to search the arrested individual and the area "within his immediate control" in order to seize any weapons or evidence.)12
- Inspections (Warrantless "inspection searches" involve a wide variety of conduct. These permissible searches include.but are not limited to.airport security searches, border searches, health inspections, and California DUI sobriety checkpoints / driver's license checkpoints which are part of the "automobile exception" to warrantless searches).13
- The automobile exception (For the most part, the automobile exception provides that warrantless searches of automobiles are permissible when the police reasonably believe a vehicle holds evidence of a crime. This exception is based on the fact that drivers have a "reduced expectation of privacy and that cars are mobile, which allows evidence to be easily moved and destroyed").14
- Plain view (Once the police have the authority to search an otherwise "protected" area, the police are permitted to seize any items that are in "plain view" where there is probable cause to believe that the item is evidence.)15
- No reasonable expectation of privacy (If you do not have a reasonable expectation of privacy in the place searched or items seized, there is no Fourth Amendment protection).16 This leads to our next section,
"What a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection." Conversely, "what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected by the Fourth Amendment."17
As Oakland criminal defense attorney Jim Hammer18 explains, "Whether or not you personally believe you had a 'reasonable expectation of privacy' is irrelevant. Under search and seizure law in California, the issue is whether you had a legitimate reasonable expectation of privacy.that is, one that society would be ready to accept as reasonable."19
It therefore follows that if you do not have a reasonable expectation of privacy in the place searched or in the items seized, there is no Fourth Amendment violation. However, if you do have a reasonable expectation of privacy.and the police unlawfully invade or interfere with that right.the court will suppress the evidence (which will be discussed in section 3. The Exclusionary Rule).
Examples of no reasonable expectation of privacy
The following are some examples of cases where California courts have held that a reasonable expectation of privacy does not exist:
- There is no reasonable expectation of privacy in abandoned property (hotel or motel rooms, a wastebasket in a vacated hotel room, an abandoned rental car, an abandoned cell phone, etc.).20
- There is no reasonable expectation of privacy in a vehicle which you have stolen (or, for that matter, in a place where you are not entitled to be).21
- A passenger in a car who does not have either a property or possessory interest in the car does not have a reasonable expectation of privacy in the car.22
Examples where one does have a reasonable expectation of privacy
The following are some examples of places where courts believe you do have a reasonable expectation of privacy.
- People do have a reasonable expectation of privacy in their homes (when cops arrived at defendant's house to investigate an anonymous tip that there was a loud party, they heard nothing. Instead of leaving, they illegally entered his property and illegally looked through a side window where they watched him package cocaine).
- People have a reasonable expectation of privacy in a tent or tarp that is designed to shield the inhabitant from public view.23
- Students in public schools have a reasonable expectation of privacy in their personal belongings that they bring to school.24
Keep in mind that just because you have a reasonable expectation of privacy does not mean that you have an absolute right to do / have anything you want within those boundaries. It simply means that the police cannot violate that expectation without following proper procedures.
Pursuant to federal and California search and seizure law, the exclusionary rule prohibits the prosecution from using any evidence obtained during an illegal search / seizure against you during your trial. The purpose of the exclusionary rule is to penalize and deter police misconduct.
When a California criminal defense attorney believes that his/her client is entitled to a suppression of illegal evidence, he/she asks the judge to apply the exclusionary rule by granting a Penal Code 1538.5 motion to suppress evidence.
In order to prevail on a Penal Code 1538.5 motion to suppress evidence, the defense attorney must prove that the search / seizure was illegal by the legal standard of a preponderance of the evidence.25 A "preponderance of the evidence" means that it is more likely than not that the search / seizure was unreasonable.
The scope of the exclusionary rule
The exclusionary rule does not apply to coerced confessions or illegal identifications unless they are either (1) the result of an illegal search and/or seizure, or (2) intertwined with an illegal search / seizure.26
Along these same lines, if the defense alleges that there is some secondary or derivative evidence that was discovered as an indirect result of the illegal search or seizure, that, too, is subject to suppression.27 This is what's known as the "fruit of the poisonous tree" doctrine.
The "fruit of the poisonous tree" doctrine provides that if the source of the evidence is tainted, anything gained from that source.that is, the "secondary" or "derivative" evidence.is tainted as well.
Example: The Police see Phillip holding a beer can inside his gated apartment complex. Despite the facts that the officer
the officer calls him over and detains him to conduct a "drinking in public" investigation. The officer asks Phillip if he has any weapons or drugs on him and Phillip replies that he has drugs. The officer then asks Phillip if he can search him and he answers "yes". The officer seizes a variety of drugs.
- doesn't see Phillip drink from the can,
- is not close enough to notice whether Phillip smells of alcohol, and
- isn't close enough to know whether there is even any beer inside the can,
Because the officer's suspicion that Phillip had been drinking in public was unreasonable (he was not in public, nor did the officer witness him drinking), the detention and subsequent search were illegal. This is the case even though Phillip consented to the search.
This is because the illegal detention vitiates (that is, nullifies) Phillip's consent to the subsequent search. As a result, the drugs were the "fruit of the poisonous tree" and were excluded from evidence under the exclusionary rule.28
If the defense seeks to have evidence excluded pursuant to this doctrine, it is up to the prosecution to prove that the "taint" has dissipated by proving one of three theories:
- that the possibly tainted evidence is so far removed from the illegal search / seizure that is doesn't make sense to enforce the exclusionary rule,29
- that the evidence was found pursuant to an independent source,30 or
- that there is a "reasonably strong probability" that the evidence would have ultimately been discovered regardless of the illegal search.31
Call us for help.
For questions about California search and seizure law, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to search and seizure law within Nevada's criminal court system. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.32
For more information about Nevada search and seizure laws, see our page on Nevada search and seizure laws.
2Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
3Horton v. California (1990) 496 U.S. 128, 133. ("A search compromises the individual interest in privacy.")
4Soldal v. Cook County, Ill. (1992) 506 U.S. 56, 61. ("A "seizure" of property, we have explained, occurs when "there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).")
5Collins v. Lean, (1885) 68 Cal.284, 288 ("Under article 4 of the amendments to the constitution of the United States, it is provided that no search-warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. To the same effect is section 19 of article 1 of our state constitution. As we read those instruments we do not find existent therein any prohibition against the issuance of a search-warrant of the person of an individual in a proper case. Therefore, subject to the limitations of those constitutions, and subject also to the conditions that body may itself have prescribed, it is within the power of our state legislature to authorize the issuance of such a warrant. And this power it has exercised by the enactment in the Penal Code of sections 1523 to 1542 inclusive.")
6California Penal Code 1523 -- Definition. ("A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and, in the case of a thing or things or personal property, bring the same before the magistrate.")
7U.S. v. Leon (1984) 468 U.S. 897, 923. ("Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Brown v. Illinois, 422 U.S., at 610-611, 95 S.Ct., at 2265-2266 (POWELL, J., concurring in part); see Illinois v. Gates, supra, 462 U.S., at 263-264, 103 S.Ct., at 2345-2346 (WHITE, J., concurring in the judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, 468 U.S., at 988-991, 104 S.Ct., at 3428-3430.")
8Katz v. U.S. (1967) 389 U.S. 347, 357. ("'Over and again this Court has emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial processes,' United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth AmendmentFN18 -subject only to a few specifically established and well-delineated exceptions.")
9People v. Williams (1999) 20 Cal.4th 119, 127. ("Here, of course, the search was without a warrant. Defendant notes that the prosecution has the burden of proving, if it can, some justification for a warrantless search or seizure ( Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23] ( Badillo); see also People v. Williams (1988) 45 Cal.3d 1268, 1300 [248 Cal.Rptr. 834, 756 P.2d 221]; Guided v. Superior Court (1973) 10 Cal.3d 1, 15, fn. 15 [109 Cal.Rptr. 684, 513 P.2d 908]), and therefore a warrantless search is presumptively unreasonable.[and at 130]. In sum, we conclude that under section 1538.5, as in the case of any other motion, defendants must specify the precise grounds for suppression of the evidence in question, and, where a warrantless search or seizure is the basis for the motion, this burden includes specifying the inadequacy of any justifications for the search or seizure. In the interest of efficiency, however, defendants need not guess what justifications the prosecution will argue. Instead, they can wait for the prosecution to present a justification.")
10U.S. v. McConney (1984) 728 F.2d 1195, 1199 (overruled on other grounds).
11Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219. ("It is well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.")
12Chimel v. California (1969) 395 U.S. 752, 762-763. ("A similar analysis underlies the 'search incident to arrest' principle, and marks its proper extent. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control'-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.")
13U.S. v. Montoya de Hernandez (1985) 473 U.S. 531, 538. ("Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant,FN1 and first-class mail may be opened without a warrant on less than probable cause, Ramsey, supra. Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion even if the stop is based largely on ethnicity, United States v. Martinez-Fuerte, 428 U.S. 543, 562-563, 96 S.Ct. 3074, 3085, 49 L.Ed.2d 1116 (1976), and boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatever. United States v. Villamonte-Marquez, supra.These cases reflect longstanding concern for the protection of the integrity of the border.")
In addition, in Ingersoll v. Palmer (1987) 43 Cal.3d 1321, the California supreme court held that as long as certain "functional requirements" are met, the intrusiveness of California DUI checkpoints is minimized, thereby authorizing their legal operation.
14Carroll v. U.S. (1925) 267 U.S. 132, 283-284. ("On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, than an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.")
15Horton v. California (1990) 496 U.S. 128, 135-136. ("Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in 'hot pursuit' of a fleeing suspect. Warden v. Hayden [387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) ]; cf. Hester v. United States, 265 U.S. 57 [44 S.Ct. 445, 68 L.Ed. 898 (1924) ]. And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant. Chimel v. California, 395 U.S. [752,] 762-763 [89 S.Ct. 2034, 2039-2040 (1969) ]. Finally, the 'plain view' doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Harris v. United States, 390 U.S. 234 [88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) ]; Frazier v. Cupp, 394 U.S. 731 [89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) ]; Ker v. California, 374 U.S. [23,] 43 [83 S.Ct. 1623, 1635, 10 L.Ed.2d 726 (1963) ]. Cf. Lewis v. United States, 385 U.S. 206 [87 S.Ct. 424, 17 L.Ed.2d 312 (1966) ]. "What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification-whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused-and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." Id., at 465-466, 91 S.Ct., at 2037-2038 (footnote omitted).")
16Katz v. U.S. (1967) 389 U.S. 347, endnote 8, above
18Oakland criminal defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients throughout the Bay Area, including San Francisco, Berkeley, Marin County, and San Jose.
19U.S. v. Jacobsen (1984) 466 U.S. 109, 113. ("The first clause of the Fourth Amendment provides 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...." This text protects two types of expectations, one involving "searches," the other "seizures." A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.FN4 A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property.FN5")
20People v. Parson (2008) 44 Cal.4th 332, 345. ("It has long been settled, however, that a warrantless search and seizure involving abandoned property is not unlawful, because a person has no reasonable expectation of privacy in such property. ( Abel v. United States (1960) 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 [wastebasket contents in vacated hotel room]; People v. Smith (1966) 63 Cal.2d 779, 800-801, 48 Cal.Rptr. 382, 409 P.2d 222 [abandoned rental car]; People v. Daggs (2005) 133 Cal.App.4th 361, 365, 34 Cal.Rptr.3d 649 [abandoned cell phone].) Thus, "when a day-to-day room guest of a hotel or motel departs without any intention of occupying the room any longer and without making any arrangement for payment of his bill, an inference arises that he has abandoned his tenancy.... This is so even though the guest leaves some of his personal belongings behind."")
21People v. Carter (2005) 36 Cal.4th 1114, 1141. ("In the present case, defendant, as the driver of a stolen vehicle, lacked a legitimate expectation of privacy to contest the search of that vehicle. (See Rakas v. Illinois (1978) 439 U.S. 128, 141, fn. 9, 99 S.Ct. 421, 58 L.Ed.2d 387 [" 'No interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.' "]; accord People v. Melnyk (1992) 4 Cal.App.4th 1532, 1533, 6 Cal.Rptr.2d 570.) To accept defendant's assertion that he had a legitimate expectation of privacy while driving a stolen vehicle would be to overlook the word "unreasonable" in the Fourth Amendment's proscription against "unreasonable searches and seizures."")
22People v. Valdez (2004) 32 Cal.4th 73, 122. ([With respect to a California Penal Code 1538.5 motion to suppress evidence,] "A passenger in a vehicle may not challenge the seizure of evidence from the vehicle if the passenger asserts "neither a property nor a possessory interest in the automobile nor an interest in the property seized." ( Rakas v. Illinois (1978) 439 U.S. 128, 148, 99 S.Ct. 421, 58 L.Ed.2d 387.) As a passenger, defendant lacked a reasonable expectation of privacy in the area under the driver's side seat and thus cannot challenge the seizure of the gun. ( Id. at pp. 148-149, 99 S.Ct. 421.) The trial court therefore did not err in denying the motion to suppress.")
23People v. Hughston (2008) 168 Cal.App.4th 1062, 1070-1071. ("As the Colorado Supreme Court reasoned in Schafer, supra, 946 P.2d at p. 944: "Whether pitched on vacant open land or in a crowded campground, a tent screens the inhabitant therein from public view. Though it cannot be secured by a deadbolt and can be entered by those who respect not others, the thin walls of a tent nonetheless are notice of its occupant's claim to privacy unless consent to enter be asked and given. One should be free to depart the campsite for the day's adventure without fear of this expectation of privacy being violated. Whether of short or longer term duration, one's occupation of a tent is entitled to equivalent protection from unreasonable government intrusion as that afforded to homes or hotel rooms. [Citations.]"")
24In re Lisa G. (2004) 125 Cal.App.4th 801, 808. ("On the other hand, students in public schools have a legitimate expectation of privacy in the personal effects they bring to school. ( In re Cody S. (2004) 121 Cal.App.4th 86, 91, 16 Cal.Rptr.3d 653.) They may "carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds." ( New Jersey v. T.L.O., supra, 469 U.S. at p. 339, 105 S.Ct. 733.) We conclude Ms. Craig's initial limited search of Lisa's purse for identification was unreasonable under the Fourth Amendment.")
25People v. James (1977) 19 Cal.3d 99, 106. ("Defendant first contends the evidence of the stolen television set in his house was obtained by an illegal search and seizure. Our guiding principles are well settled. (1) Inasmuch as the search herein was conducted without a warrant, the burden was on the People to establish justification under a recognized exception to the warrant requirement. ( People v. Rios (1976) 16 Cal.3d 351, 355-356 [128 Cal.Rptr. 5, 546 P.2d 293].) (2) The People relied on consent, which constitutes such an exception. ( People v. Michael (1955) 45 Cal.2d 751, 753 [290 P.2d 852].) In that event, however, the People had the additional burden of proving that the defendant's manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. ( People v. Johnson (1968) 68 Cal.2d 629, 632 [68 Cal.Rptr. 441, 440 P.2d 921].)FN4 The voluntariness of the consent is in every case "a question of fact to be determined in the light of all the circumstances." ( People v. Michael, supra, 45 Cal.2d at p. 753; accord, People v. Reyes (1974) 12 Cal.3d 486, 501 [116 Cal.Rptr. 217, 526 P.2d 225].)FN4 The People may discharge the foregoing burdens [during a California 1538.5 hearing] by a preponderance of the evidence.")
26People v. Mattson (1990) 50 Cal.3d 826, 850-851. ("Section 1538.5 is properly used only to exclude evidence obtained in violation of a defendant's state and/or federal (Fourth Amendment) right to be free of unreasonable search and seizure.FN11 Although the procedure may be used to exclude confessions that are the product of an unlawful search and seizure, and the question of whether a confession was unlawfully obtained may be decided by the court in order to rule on the admissibility of physical evidence that is discovered as a result of the confession, section 1538.5 may not be used to suppress admissions and confessions on grounds that they are the product of Fifth Amendment and/or Sixth Amendment violations.")
27Wong Sun v. U.S. (1963) 371 U.S. 471, 484-485. ("The exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. Mr. Justice Holmes, speaking for the Court in that case, in holding that the Government might not make use of information obtained during an unlawful search to subpoena from the victims the very documents illegally viewed, expressed succinctly the policy of the broad exclusionary rule: 'The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.' 251 U.S. at 392, 40 S.Ct. at 183.")
28People v. Krohn (2007) 149 Cal.App.4th 1294, 1299. ("Because the officer had no reasonable suspicion defendant was engaged in criminal activity, he had no right to detain him. (See Sokolow, supra, 490 U.S. at p. 7, 109 S.Ct. 1581.) The officer's illegal detention of defendant vitiated any subsequent consent to the interrogation and search. ( Florida v. Royer (1983) 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 ["statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention"].) The drugs found on defendant at the apartment complex and at the pre-booking search thus are fruits of a poisonous tree. ( Ibid.; see also Wong Sun v. United States (1963) 371 U.S. 471, 484-488, 83 S.Ct. 407, 9 L.Ed.2d 441.) The court should have suppressed them.")
30See Wong Sun v. U.S. (1963), endnote 24, above.
31People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 680-681. ("It is urged by Tunch that without the invalid police search the evidence of his automobile would not have been inevitably discovered. It is true that the term does ordinarily have the connotation of "certainty," but so considered it appears to be a misnomer. Nowhere in the many definitive authorities does it appear that the police with "certainty" would have obtained the evidence "from an independent source." Instead the rule's requirement is that it would have been discovered "in the normal course of a lawfully conducted investigation" ( Lockridge v. Superior Court, supra., 3 Cal.3d 166, 170; and see People v. Chapman, supra., 261 Cal.App.2d 149, 167; Santiago v. State, supra., 444 S.W.2d 758, 761; People v. Fitzpatrick, supra., 32 N.Y.2d 499, 506), or "would have been ultimately revealed by usual and commonplace police investigative procedures" ( People v. Ramsey, supra., 272 Cal.App.2d 302, 313; and see People v. Thomsen, supra., 239 Cal.App.2d 84, 91), or that "there are independently sufficient 'leads"' ( United States v. Resnick, supra., 483 F.2d 354, 357), or there was a "likelihood that it would have subsequently been discovered through other police efforts" ( Gissendanner v. Wainwright, supra., 482 F.2d 1293, 1297), or that the police would reasonably be expected to obtain the evidence "by an independent investigation" ( People v. Tucker, supra., 172 N.W.2d 712, 717). The test is not one of certainty, but rather of a reasonably strong probability.")
32Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's criminal court system. Our Nevada law offices are located in Reno and Las Vegas.