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Understanding Criminal Procedure and Improper Searches in California

What Does The Fourth Amendment Mean?


The Fourth Amendment of the United States Constitution, 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.

The Fourth Amendment prohibits unreasonable searches and seizures by law enforcement in places where a person has a reasonable expectation of privacy.

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This includes their residence, property, and body, as well as specific areas of a motor vehicle (such as a locked trunk) and certain public places (for example, a public restroom stall). 

The Three Levels of Police-Citizen Interactions:

(1) Consensual encounters: This is considered the least intrusive contact. It is said to involve no restraint of the citizen's liberty. Consensual encounters are not regarded as seizures. These can be started by police without any objective justification. 

(2) Temporary Detentions: The second category is a temporary detention. Generally, this requires an objectively reasonable basis for suspecting the citizen of criminal activity. It also must be limited in duration, scope, and purpose.

(3) Arrests: Finally, a seizure of an individual that exceeds the permissible limits of a detention. Seizures, which include restraints on an individual's liberty, are constitutionally permissible only if the police have probable cause to arrest the individual for a crime.

What is the Difference Between a Consensual Encounter and a Temporary Detention? 

A temporary detention, unlike a consensual encounter, restrains your liberty. The person is not free to terminate the contact and walk away.

Courts use an objective test to differentiate between the two. Courts ask the following question: Considering all of the circumstances surrounding the incident, would a reasonable person have believed that they were not free to leave? 

When the police stop a car, a reasonable driver would not feel free to leave until the officers have finished their business, nor would the driver be free to do so. Vehicle stops are classified as limited investigative detentions of the driver.

Traffic stops are treated as investigatory detentions for which the police officer must be able to articulate specific facts justifying the suspicion that an offense is being committed.

The United States Supreme Court declared that an investigative stop or detention based on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.

A consensual encounter can transform into detention.

Do Cops Have To Read Miranda Rights For DUI?

When a police-citizen encounter is or becomes more than a temporary investigatory detention, important consequences and certain rights can come into play.

Miranda rights come into operation in certain situations.

A defendant's answers to questions for police interrogation can be inadmissible evidence if Miranda Rights are not waived.

Custody for purposes of determining whether your Miranda rights were violated generally does not include a temporary detention for investigation. This means even if you tell the officer that you do not want to answer questions. 

For drivers stopped for a DUI, one of the first questions is, "Have you been drinking?" If police are suspicious enough to ask that question, they usually ask a series of questions in DUI cases. The police almost never give Miranda warnings until all the questions have been asked and answered.

Should the answers be admissible against you in a court of law? 

The answer depends on whether you were in custody or merely detained.

The courts have identified certain factors that go into making this determination. Some factors are:

  • whether you were formally arrested; if not,
  • how long were you detained?
  • the location
  • ratio of officers to suspects
  • behavior or demeanor of police
  • nature of questioning 

It is highly recommended that you seek the legal expertise of an experienced DUI Defense Attorney. 

What is an Improper Search in California?

Generally, a "search" is when the government intrudes upon, or does something to invade a citizen's personal security in an area in which he or she has "a reasonable expectation of privacy." 

In DUI cases, breath, blood (and urine) testing are searches and involve a privacy interest. 

For a search to be reasonable, and therefore proper:

  • Police must have probable cause to believe incriminating evidence exists and they obtain a search warrant from a judge, or
  • The circumstances make it lawful for police to conduct a search without a warrant. 

The United States Supreme Court defined probable cause as “a fair probability that contraband or evidence of a crime will be found in a particular place.”

It also said that probable cause is a “practical, nontechnical conception” based on “common-sense conclusions about human behavior.” 

The police may search a car or truck if they have probable cause to believe it contains contraband. 

A court can suppress evidence found during an improper search, meaning it cannot be used against you during your trial. Experienced criminal defense attorney Richard Wagner will examine your case and determine whether your rights were violated. Call today at 714-721-4423 to schedule a Free Consultation.

An improper search in California is an illegal search that violates an individual's constitutional right to privacy. 

Proper versus Improper Searches in California

A court will consider several factors when deciding whether a search was conducted properly.

Proper Searches

A proper, or lawful, search is conducted

  • Under a proper warrant;
  • Without a proper warrant, but where the police believe in good faith, there is a lawful basis for the search—the “good faith exception.” (For example, if the police rely in good faith on an invalid search warrant and otherwise behave properly during the search.)
  • Where the circumstances mean a warrant is not required.

Situations that do not require a warrant include:

  • Police search a person after a lawful arrest
  • Police search a vehicle after a lawful stop
  • There is a risk that incriminating evidence may be destroyed or concealed
  • A person is briefly held for investigation during a “stop and frisk.” 
  • The search relates to a person the authorities are in “hot pursuit” of
  • The person being searched or the property owner consents to the search 

In these situations, law enforcement can conduct a proper search without a warrant. 

Consent is probably the most popular exception to the warrant requirement. 

If the police make a lawful stop for a traffic violation such as speeding or a defective license plate lamp, the police can request that you consent to search you or vehicle. 

Improper Searches

An improper, or unlawful, search occurs when:

  • The police conduct a search without a warrant in circumstances where a warrant is required
  • The police conduct a search under an improper warrant and the good-faith exception does not apply
  • The search is conducted in a way that violates a person's reasonable expectation of privacy

If these circumstances exist, a criminal defense attorney may file a motion with the court, asking it to find the search improper and apply the Exclusionary Rule. 

For example, if the cops search your vehicle without a warrant and find contraband, that search could be unconstitutional. If the police do not have probable cause to believe that evidence connected to the offense giving rise to your arrest may be found in the vehicle and you were placed in custody and no longer had access to the car's interior, the court should rule that search to be improper or unlawful. 

The court then should apply the Exclusionary Rule.

An Improper Search and the Exclusionary Rule

The exclusionary rule functions by making certain evidence obtained in violation of the Fourth Amendment inadmissible. It means that any evidence found in the course of an improper search cannot be used as evidence against a defendant during a criminal trial. 

The main purpose of the Exclusionary Rule is to deter police from conducting unreasonable searches and seizures.

Also, the Exclusionary Rule keeps courts from participating in and condoning unlawful invasions of constitutional rights. 

When to Hire a Criminal Defense Lawyer in California

If the prosecution is relying on evidence found during a police search, you should ask experienced criminal defense lawyer Richard Wagner to review your case. Attorney Richard Wagner can advise you whether the correct search and seizure procedures were followed. 

If your constitutional rights have been violated by an improper search, a defense lawyer can help you argue that the evidence found during the search should be excluded from your trial. If successful, this may weaken the prosecution's case against you and help you defend the charges.

To learn more, it is highly recommended that you contact The Law Office of Richard Wagner today by calling (714) 721-4423 or submitting an online form and scheduling a Free Consultation.