San Diego Search Warrant Legality

Legality of Search & Seizure in San Diego Criminal Cases

What is a search warrant?

A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.

As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search-and why a warrant wasn’t obtained first-if the defendant challenges it in court.

What does it take to get a search warrant in San Diego?

A judge will issue a search warrant after the police have convinced him or her that:

• it is more likely than not that a crime has taken place, and
• items connected to the crime are likely to be found in a specified location on the property.

To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers’ own observations or on the second-hand observations of an informant. The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen’s tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person’s routine. But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.

Do police always need a warrant to conduct a search?

No. In many situations, police may legally conduct a search without first obtaining a warrant.

Consent searches: If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don’t need a warrant. The police typically obtain a person’s consent by threatening to detain her while they obtain the warrant.

Searches that accompany an arrest: When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person’s car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person’s property to avoid claims of theft.

Searches necessary to protect the safety of the public: The police don’t need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson’s property on the grounds that they feared for the safety of other family members.

Searches necessary to prevent the imminent destruction of evidence: A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.

“Hot pursuit” searches: Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.

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