But there are several major exceptions to this rule. Police may search your home without a warrant when any of the following is true:
- You (or someone else with authority over the premises) have given your consent to a search of your home;2
- There is imminent danger to life or a threat of serious damage to property;3 or
- The search takes place in connection with a lawful arrest—and is done either for the purpose of protecting the safety of the arresting officers, or for the purpose of safeguarding evidence about the arrest offense that someone might otherwise be able to destroy.4
California’s search and seizure laws as applied to houses and other residences have their origin in
- the Fourth Amendment to the U.S. Constitution,5 and
- Article I, Section 13, of the California Constitution.6
These constitutional sections provide that all Californians have the right to be free from “unreasonable searches and seizures.”7
If any evidence is found through an unreasonable search or seizure, then it may not be used against a defendant in his/her criminal jury trial. (This is what is known as the “exclusionary rule,” which is an important California evidence rule.)8
Here are some examples of situations in which police may lawfully search your home in California:
- Your roommate consents to a search of the apartment you share while you are not home.
- An undercover federal agent investigating a drug trafficking ring tells his fellow officers that another undercover agent has been found out by members of the ring and is being held and tortured in a cabin you own.
- Police arrive at your house with a valid arrest warrant for you on receiving stolen property charges. As one officer is putting you in the patrol car, another does a quick look around the house to make sure there is nobody else present who might try to destroy evidence (like specific items of stolen property).
And here are some examples of illegal searches of your home:
- You agree to let the police come “look around” your house without a warrant—but when they approach the dresser in your bedroom, you tell them to stop their search and leave. They search the dresser anyway.
- Based on an anonymous tip that an abducted child is being held in your apartment, the police enter while you are not home and search all rooms and closets—but after they fail to find the child there, they proceed to search drawers, cabinets, and boxes.
- Police arrive at your home with a warrant for your arrest on California assault charges. They handcuff you in your kitchen. While one officer waits with you, the other goes from room to room looking through drawers and cabinets for weapons.
Remedies for an unconstitutional search of a residence
- the police search your home or any portion of it unlawfully, and
- you are charged with a crime based on evidence found in the search,
then you and your California criminal defense attorney can ask the court to exclude this evidence in your case.
In order to help you better understand when police can legally search your house/residence in California, our California criminal defense attorneys will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
California police can legally search your residence in one of the following situations:
- When they have obtained a valid search warrant from a California or federal judge;
- When someone with authority do so has consented to a search of the home;10
- When the police are aware of an emergency justifying an immediate search (i.e., imminent danger to life or property);11 or
- In connection with a lawful arrest, in limited circumstances and for limited purposes.12
According to Long Beach criminal defense attorney Neil Shouse13:
“Courts have long recognized that people have a particular right of privacy in the most important place in their lives—their homes. As a result, police may not search houses, apartments, or other residences without either a valid warrant or a compelling justification. And it’s important that the scope of any search of a residence be limited to that described in the warrant, or supported by another justification.”
The vast majority of searches of houses, apartments, etc., are valid because the police have obtained a search warrant to search the property. (The same is true of, for example, police searches of cell phones and police searches of computer hard drives.)
Search warrants must be signed by judges.14 They are typically issued to grant police the right to search for and/or seize items that either
- may be evidence that a California felony has been committed, or
- may be evidence that a particular person has committed a felony.15
Judges should only issue search warrants for residences based on “probable cause” to believe a crime has occurred and the search will yield evidence about it.16
In addition, every search warrant must describe specifically both
- the house or other place to be searched, and
- the evidence that is being searched for.17
And if the search either
- includes areas other than those described in the warrant, or
- yields evidence other than that described in the warrant,
then it is considered invalid. The evidence will then be excluded.18
Example: Eric, a police detective, has been building a case against Scott, a prominent dealer in child pornography, for almost a year.
Based on the evidence he has accumulated, Eric gets a judge to sign a warrant to search an apartment rented to Scott, where he believes child porn may be stored.
But when Eric and his colleagues search the apartment, they do not find any child pornography materials. They do, however, find a large stash of firearms. Because Scott has several felony convictions on his record, he is guilty of violating California’s felon with a firearm laws.
But the guns found in Scott’s apartment may not be used to build a case against him for this crime. This is because they are not the kind of evidence described in the search warrant.
Even without a warrant, police may search your house if they have consent to do so.19
But there are a few important limits on their ability to search your house with consent.
Authority to consent
First of all, consent to a search of a house must come from someone who has the authority to give it.20
The person giving the consent does not have to be the person who is eventually charged with a crime. It can be anyone who has the right to use/enter the property themselves.21
Example: William is a suspect in a bank robbery. The police arrest him under a valid arrest warrant on the front lawn of the house where he is living.
The police then approach Carrie, who is also at the house. She and William are living together in a bedroom in the house, which they rent from the owner. The police ask Carrie if they may search the bedroom she shares with William, and she says yes.
In the bedroom, the police find a large amount of cash that they use as evidence in William’s trial for robbery.
Carrie’s consent was valid because she was one of the occupants of the room. Therefore, even though there was no search warrant and William didn’t consent to the search of his room, the money may be admitted into evidence.22
In fact, consent to a search of a home can be valid even if it turns out the person giving it didn’t have authority to consent—as long as the police reasonably believed that s/he had such authority. This is what is called “apparent authority” to consent.23
Example: David is a small-time drug dealer. One day when he is not home, one of his customers, Jane, breaks into his house by entering through the window. Jane intends to rob David’s stash.
While Jane is in the house, several police officers come by looking for David. They ask Jane who she is, and she claims to be David’s roommate. They then ask if they can search the house, and she agrees.
This search of David’s house is valid, and evidence from it may be used against him. This is because Jane had “apparent authority” to consent to the residence search—even though it turns out she was lying.
However, the police may not search your home without a warrant if:
- Your roommate, your spouse, or another person with authority over the property has consented to the search, BUT
- You are present on the scene and have told them you do not consent to the search.24
Scope of consent
Just because you consent to a warrantless search of some portion of your home, that does not mean that you have consented to a search of every part of your home. The police must limit their search to the areas within the scope of the consent.25
Example: The police come to Kim’s house investigating a recent felony hit and run. They have no warrant but ask Kim if they may search her garage. Kim tells them she has nothing to hide and gives them permission to do so.
Kim’s garage is attached to her house. While his colleagues are searching the garage, one of the officers opens the door to her house and walks in.
He proceeds to her laundry room and finds a bloodstained shirt. The crime lab later determines that the blood is of the same type as the hit and run victim’s.
But the shirt may not be admitted into evidence against Kim, because the search of her laundry room exceeded the scope of the consent she gave (which was only for a search of her garage).
Consent must be voluntary
In order to be valid, consent to a warrantless search of a home must be given voluntarily.26
This means that your consent will not authorize a warrantless residence search if you give it at gunpoint.27
And it also means that you will not be deemed to have consented to a police search of your home if, for example,
- law enforcement officers command you to open your door—and you comply,28 or
- police tell you they have a warrant to search your home—and that later turns out to be false.29
Consent may be withdrawn
Even if you initially give your consent to a police search of your house without a warrant, you may change your mind and withdraw that consent at any time.30
If you do so, any further search of your residence will be invalid.31
Example: Eli is staying at Melissa’s apartment. Local police learn that there is an arrest warrant for him outstanding in another city. They go to Melissa’s apartment without a search warrant.
When Melissa answers the door, the officers ask if they can search the apartment, and she lets them in. But when one of them walks toward a bedroom with a partially open door, Melissa rushes to close the door and tries to block him from entering.
He pushes her aside and enters the bedroom anyway. There he finds Eli, who is in possession of a large amount of heroin. Eli is arrested and charged with 11351 HS drug possession for sale.
But the evidence against Eli is thrown out, because the search of the bedroom in Melissa’s apartment was unconstitutional. Melissa clearly intended to withdraw her consent to the search of her apartment by blocking the officer from entering the bedroom.32
Under the “exigent circumstances” exception to the rule that police need a warrant to search your home, police may conduct a warrantless search if it is necessary to prevent either
- someone’s physical injury or death, or
- serious damage to property.33
In other words, police may enter—and possibly search—your home without a warrant or your consent if there is a genuine “emergency threatening life or limb.”34
Example: Neighbors call police about a foul chemical odor emanating from a house. When officers arrive at the house and knock on the door, a young child answers and says that she is home alone. (Children do not have authority to consent to a police search of a home.35)
The police smell the strong odor and are concerned about the child’s safety. So they enter the house to confirm that no one else is home and to investigate the source of the odor. Once inside, they find a methamphetamine lab.
The lab will probably be admissible as criminal evidence even though the police lacked a warrant or valid consent to search the house—because they entered the house to prevent harm to the child.
The emergency must be genuine, though. The police must know of specific facts that reasonably lead to the conclusion that an emergency exists—and may not manufacture an emergency as a pretext for a warrantless search for evidence.36
Some examples of emergencies that might justify warrantless searches of private homes are:
- A reasonable belief that a burglary is in process or has just occurred;37
- A reasonable belief that someone in the house is suffering domestic violence at that moment;38
- A report that the resident of the home is missing;39 and
- A reasonable belief that young children or infants are unattended in the house.40
Law enforcement officers also may conduct a limited search of your residence if you are lawfully under arrest.41
However, the scope of a search of a home incident to arrest is very limited. Such a search may only be carried out for the following purposes:
- Locating and removing any weapons that the arrestee might use to escape or attack the arresting officers; and
- Locating and seizing any evidence pertaining to the offense of the arrest that the arrestee (or someone else) might otherwise be able to destroy.42
Example: Police come to Raul’s house to arrest him on several California misdemeanor charges. As one officer is putting Raul in the patrol car, another officer enters the house.
That officer looks around the room where Raul was arrested. He sees a sweatshirt on the chair, picks it up, and finds a handgun underneath it.
The handgun must be excluded from evidence because the search of Raul’s home that uncovered it was illegal.
While it was okay for the officer to check and make sure there was no one in the home who could destroy evidence, he had no right to search Raul’s personal belongings—since Raul was in the patrol car and could not access any weapons or evidence that were still in his house.43
If you are accused of a California crime after an unconstitutional search of your house, then you have the right to challenge any evidence that came from that illegal search.
And if that evidence is key to the prosecution’s case against you, then you may be able to get the charges against you reduced—or even dismissed altogether.
Your first move if you are the victim of an unlawful residence search will probably be to file a Penal Code 1538.5 motion to suppress evidence.44
A 1538.5 PC motion to suppress is a request to the judge to throw out any evidence that was either:
- Obtained through an unreasonable search and seizure done without a warrant, or
- Obtained through a search that was done with a warrant—but where the warrant was deficient, or the search was carried out in an unconstitutional way.45
For legal representation…
For questions about when police may search your home in California, 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.
For more information on Nevada laws on search warrants for homes, please see our page on Nevada law on search warrants.
1 People v. Ray (1999) 21 Cal.4th 464, 467-68. (“When performing their law enforcement responsibilities, officers are required under the Fourth Amendment to obtain a warrant before searching a house or seizing personal effects; FN1 or it must be established they acted pursuant to a recognized exception.”)
2 Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219. (“It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search [including a search of a house or other residence] that is conducted pursuant to consent.”)
3 People v. Ray, endnote 1, above, at 472. (“This justification [emergency exception to warrant requirement for searches of residences] requires specific, articulable facts indicating the need for ‘swift action to prevent imminent danger to life or serious damage to property . . . .’”)
4 People v. Leal (2009) 178 Cal.App.4th 1051, 1064. (“‘That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search [of a residence] incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy…. If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” (Arizona v. Gant, supra, 556 U.S. at p. ––––, 129 S.Ct. at p. 1716.)”)
5 U.S. Const., amend. IV [protects people from unreasonable searches of their homes]. (“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.”)
6 Cal. Const., Art. I, Sec. 13 [protects people from unreasonable searches of their homes]. (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”)
7 See endnotes 5 and 6, above.
8 Penal Code 1538.5 PC – Motion to . . . suppress evidence. (“(a)(1) 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: (A) The search or seizure without a warrant [including a warrantless search of a residence] was unreasonable. (B) The search or seizure with a warrant was unreasonable because any of the following apply: (i) The warrant is insufficient on its face. (ii) The property or evidence obtained is not that described in the warrant. (iii) There was not probable cause for the issuance of the warrant. (iv) The method of execution of the warrant violated federal or state constitutional standards. (v) There was any other violation of federal or state constitutional standards.”)
9 See same.
10 Schneckloth v. Bustamonte, endnote 2, above.
11 People v. Ray, endnote 3, above.
12 People v. Leal, endnote 4, above.
13 Our Long Beach criminal defense lawyers are skilled in criminal pretrial motions, including motions to exclude evidence from illegal searches and seizures.
14 Penal Code 1523 PC – Definition [of search warrants, including for searches of residences]. (“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.”)
15 Penal Code 1524 PC – Issuance [of search warrants, including for residential searches]. (“(a) A search warrant may be issued upon any of the following grounds: . . . (4) When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.”)
16 Penal Code 1525 PC – Issuance; probable cause; supporting affidavits; contents of application. (“A search warrant [for a police search of a home] cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.”)
17 See same.
18 Penal Code 1538.5 PC – Motion to . . . suppress evidence, endnote 8, above.
19 Schneckloth v. Bustamonte, endnote 2, above.
20 See, for example, United States v. Reid (9th Cir. 2000) 226 F.3d 1020, 1025.
21 United States v. Matlock (1974) 415 U.S. 164, 171. (“These cases at least make clear that when the prosecution seeks to justify a warrantless search [of a house or residence] by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”)
22 Based on the facts of the same.
23 See United States v. Reid, endnote 20, above.
24 Georgia v. Randolph (2006) 547 U.S. 103, 106. (“The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search [of a house] unreasonable and invalid as to him.”)
25 People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127. (“The authority to search [a house or residence] pursuant to a consent must be limited to the scope of the consent.”)
26 Bumper v. North Carolina (1968) 391 U.S. 543, 548-49. (“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search [of a home], he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”)
27 See People v. McKelvy (1972) 23 Cal.App.3d 1027, 1034.
28 People v. Poole (1986) 182 Cal.App.3d 1004, 1012-13.
29 See Bumper v. North Carolina, endnote 26, above, at 548. (“The issue thus presented is whether a search [of a house] can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant. FN11 We hold that there can be no consent under such circumstances.”)
30 People v. Hamilton (1985) 168 Cal.App.3d 1058, 1068. (“Evidence procured after withdrawal of consent [to a warrantless search of a residence] properly is suppressed.”)
31 See same.
32 Based on the facts of the same.
33 People v. Ray, endnote 3, above.
34 Mincey v. Arizona (1978) 437 U.S. 385, 394.
35 People v. Jacobs (1987) 43 Cal.3d 472, 481.
36 People v. Ray, endnote 1, above, at 477. (“The entry cannot be made on the pretext to search for contraband or illegal activity rather than to look for [burglary] suspects and to preserve an occupant’s property.”)
37 See same.
38 People v. Higgins (1994) 26 Cal.App.4th 247.
39 People v. Ammons (1980) 103 Cal.App.3d 20.
40 In re Dawn O. (1976) 58 Cal.App.3d 160.
41 See, for example, People v. Leal, endnote 4, above.
42 See same.
See also Chimel v. California (1969) 395 U.S. 752, 762-63 (partially overruled by Arizona v. Gant (2009) 556 U.S. 332). (“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 [in a residence] 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’ [including portions of a residence]—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”)
43 Based on the facts of People v. Leal, endnote 4, above.
44 Penal Code 1538.5 PC – Motion to . . . suppress evidence [including evidence from an unlawful search of your residence], endnote 8, above.
45 See same.