By Bruce Margolin
The California Constitution and the 4th Amendment to the U.S. Constitution guarantee our right to be free from unlawful searches and seizure by police. Illegally-seized evidence must be suppressed and excluded from use in the criminal prosecution against a defendant whose rights have been violated. If the evidence (marijuana and other items) is found by the judge to have been illegally seized, the case must be dismissed.
“Probable cause” to search and seize must exist, otherwise the evidence can’t be used against the defendant in court. There must be a reasonable belief that a crime has been or is about to be committed (i.e. that there is contraband present.) Search of homes or other private property requires warrants. Automobiles can be searched without a warrant if probable cause is found to exist ( i.e. smell ).
Your Constitutional Rights Include (Among Others):
Not to have your personal property searched without a search warrant.
To refuse to answer police questions or make any statements.
To refuse to open your door to your home unless there is an emergency or a search warrant.
Not to be detained without your consent or questioned even at airports.
The smell of marijuana: The smell of marijuana (burnt or fresh) by police or their trained dogs is probable cause to search the suspect’s person and car without a warrant, and is the basis to obtain a search warrant for a home or other place.
REASONABLE EXPECTATION OF PRIVACY IS REQUIRED FOR “STANDING” FOR A DEFENDANT TO SUPPRESS EVIDENCE:
In California, as well as in many other states and under federal law, the defendant must have a reasonable expectation of privacy, called “standing”, in the location of the search in order to challenge the admissibility of illegally-seized evidence and have it suppressed. Some examples are set out below:
Passengers: People who have their possessions, such as backpacks, in someone else’s car have no standing to challenge an illegal search. There is no recognized right of privacy in someone else’s vehicle unless you are the driver at the time of the search, However, all persons have reasonable expectation of privacy regarding the clothing they are wearing and anything on their person. Passengers can challenge the reason for the stop.
House Guests: Overnight guests have the same rights as the occupants to object to the illegal search of the host’s home. Campsites and motel and hotel rooms are also protected.
Fences: Renters’ and homeowners’ enclosed yards (e.g. a yard with a 6-foot fence, even with small cracks) are protected from police peeping close-up through the fence, but not from aerial observation. Police may not use ladders to see over an enclosed fenced yard.
In Jail and in Public Places, ect.: There is no right of privacy while in police cars, jail (including telephone calls) or, for example, under surveillance by a police camera attached to telephone poles focused of your driveway.
Telephones, texting, Internet: Conversations via hard wire (land line), cell phones and in telephone booths are protected, unless one party agrees to allow police to listen. Cordless phone users do not have an expectation of privacy because conversations can be heard by neighbors with the same frequency. There has been a great increase of the government use of electronic surveillance like wire-tapping and the laws have made police access to the use of electronic surveillance much easier. Legal rulings regarding the use of cell phone locators are under consideration. No warrant is required for disclosure of information stored by your Internet provider, i.e. Hotmail, Gmail, AOL. Police may confiscate a suspect’s cell phone and read text messages when making a lawful arrest for a drug offense.
However, police may not enter a home based on seeing occupants smoking marijuana:: [People. V Hua (1.4.08) 158 Cal. App. 4th 1027] Police entry without warrant into a defendant’s apartment was not justified under the exigent circumstances exception to the warrant requirement. The defendant’s refusal to allow the police to enter his home was upheld. The plants observed inside were suppressed and the case was dismissed.
BRUCE MARGOLIN is a criminal defense attorney based in West Hollywood since 1967. He has served as director of Los Angeles NORML since 1973 and helped write Proposition 215. You may reach him and his partner, Allison Margolin Esq., at (800) 420-LAWS (5297), (310) 276-2231or through his website at www.1800420laws.com.
