Posted by Brett Hartmann | May 05, 2021


The Fourth Amendment to the United States Constitution guarantees the right of all people to be free from unreasonable searches and seizures. The California State Constitution also guarantees this same right in Article 1, Section 13. The purpose of these constitutional rights is to prevent the police from harassing people who have not done anything wrong. These rights mean that the police cannot search your person, your home, your vehicle, or your things unless one of the following is true: (1) The police have a search warrant; or (2) the police have a valid exception to the warrant requirement.

Search warrants are quite rare. Police almost never obtain search warrants. Instead, police and prosecutors usually try to rely on exceptions to the warrant requirement. Unfortunately, the courts have found many exceptions to the warrant requirement.

The most common exception to the warrant requirement is consent. If you freely and voluntarily give consent to the police to search your person, your vehicle, your home, or your things, then the police do not need a warrant. Generally, the police will obtain consent through the power of suggestion. The police officer will politely ask something like, “Do you mind if I take a look in your vehicle?” If the police ever ask you for permission to search your home, your vehicle, your person, or your belongings, you should politely decline and explicitly state, “I do not consent to searches.”

Another common exception to the warrant requirement is the “automobile exception.” If the police have “probable cause” to believe that there is evidence of a crime in your vehicle, they can search the vehicle without a warrant.

Other common exceptions to the warrant requirement include:

  • Searches incident to lawful arrest;
  • “Inventory searches” when the police have your vehicle towed;
  • The “plain view” exception;
  • Reasonable suspicion that you are armed and dangerous;
  • “Hot pursuit” or “exigent circumstances.

All of these exceptions are very nuanced and require legal expertise to fully understand. If the police searched your person, home, vehicle, or belongings without a warrant, you should immediately consult with an attorney.

In addition to searches of your person, home, vehicle, and belongings, the Fourth Amendment also protects you from unreasonable seizures. The courts have determined that this means the police cannot place you under arrest unless they have “probable cause” to believe that you have committed a crime. Additionally, the police cannot detain you unless they have “reasonable suspicion” to believe that you have committed (or are about to commit) a crime. This would include situations where the police ask you or order you to step out of your vehicle during a traffic stop. If you think you are being arrested or detained, you should ask the police, “Am I being detained?” If you are not being detained, then you should immediately leave the situation.

Often, police will falsely claim that they to have the right to search whatever it is they want to search. They will tell you that they will search it anyway and will ask for consent. Again, it is very important that you do not consent to searches.

If you are being prosecuted using evidence that was obtained in violation of your Fourth Amendment rights, you have a remedy. Your Monterey County criminal defense attorney can ask the judge to have any illegally obtained evidence “suppressed” from your trial. In California, this is accomplished by filing a motion to suppress evidence pursuant to Penal Code Section 1538.5. If the motion is granted, then the prosecution would not be allowed to use the evidence against you at trial. This “suppression” would also apply to any evidence that is found as an indirect result of the unlawful search or seizure (also known as “the fruit of the poisonous tree”). Often, when evidence is suppressed, the prosecutor will either make a much better offer or will dismiss the case entirely. A motion to suppress is one of the strongest tools you have to fight back against police overreach.

When the police violate your constitutional rights, you need an attorney to fight for you in court.  If you think your Fourth Amendment rights were violated, call us right away for a free consultation.

About the Author

Brett Hartmann

Brett Hartmann is a Monterey County local, having moved here at 10 years old. After graduating with a Bachelor of Arts degree in History from the University of California, San Diego, Brett moved back home to Salinas to give back to the community. Shortly after moving home, Brett enrolled at Monte...

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