The Fourth Amendment provides constitutional protections against unreasonable searches and seizures by the government. This means that law enforcement needs probable cause to search you, your home, car, office, etc.
With the exception of Terry Stops, the general rule is that a police search and seizure is only legal if it is:
- consented to;
- pursuant to a lawful arrest; or
- pursuant to a valid search warrant based on probable cause.
Probable cause is the standard of proof by which law enforcement has a legal basis to conduct a personal or property search.
Under California Penal Code 1523, a California search warrant may only be issued under the following circumstances.
- When the property was stolen or embezzled;
- When the property to be seized is evidence of the fact that a felony has occurred or that a particular person has committed a felony;
- When the property to be seized reveals child pornography;
- When there is a warrant to arrest a person;
- When the property to be seized is in possession of someone who intends to use it to commit a crime or in the possession of another to whom he/she may have delivered it for the purpose of concealing it or keeping it from being discovered;
- When a firearm or any other deadly weapon was used at the scene of a crime;
- When a mentally disturbed person is detained in possession of a firearm;
- When a person subject to a protective order (“restraining order”) is in possession of a firearm and fails to relinquish it; or
- During the investigation of certain misdemeanor crimes where a felony is also suspected.
A request for a search warrant may be made by a law enforcement officer or a prosecutor by filing an affidavit under penalty of perjury. The affidavit must contain the facts that establish the requisite probable cause.
A judge then makes a determination of probable cause to issue the search warrant. The judge may question under oath the party who requested the search warrant. The judge may also question any witnesses that the party requesting the search warrant relied on to provide grounds for probable cause.
If you have been searched without a search warrant in Orange County California, you should consult with a local criminal defense attorney to protect your rights. Contact us to discuss your case.
