Illegal Search and Seizure in San diego

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When and How the Police Can Search Your Home Illegal Search and Seizure in San diego

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Your Constitution Rights

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Both the U.S. Constitution and the California State Constitution provide us with the right to be secure in our homes

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Meaning that you should not be subjected to a search of your home without a good reason and without the officer following proper legal procedure

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Obtaining a Search Warrant

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Usually needed to search your home Officer must swear out an affidavit which provides the probable cause needed to obtain the warrant Judge must sign

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Must describe the place to be searched and the items to be seized Details are important – police can only search for, and seize, items included in the warrant

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Exceptions to the Warrant Requirement

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There are exceptions to the warrant requirement, including:

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Consent – this is the most commonly used exception to the warrant requirement Simply put, if you consent to a search of your home a warrant is not required

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Plain View – this one is usually used in conjunction with a valid warrant If officers obtain a valid warrant that allows them to search your home and seize stolen televisions but they see a bag or marijuana sitting on the kitchen table when they walk in the door, they can seize the marijuana as well because it was in plain view

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Incident to Arrest – if an officer has a warrant that allows him or her to enter your home to effectuate an arrest (usually a felony arrest warrant) the officer may also search the area around you that is under your immediate control for contraband or weapons

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Exigent Circumstances – officers may enter and search your home if exigent circumstances exist and they have probable cause An exigent circumstance occurs when an officer has a compelling need to take action but does not have the time required to obtain a warrant

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Exclusionary Rule

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The exclusionary rule prevents the government (in most cases) from using evidence that was obtained as a result of an illegal search and seizure

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It also prevents the use of evidence that was found outside of your home

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But that would not have been found but for evidence obtained as a result of an illegal search of your home

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