LOS ANGELES SEARCH AND SEIZURE ATTORNEY
The Fourth Amendment to the US Constitutions guarantees the rights of citizens to be free from unreasonable searches and seizures.  In order to search a vehicle without consent, police need probable cause; in order to search a residence without consent, police generally need a search warrant.  In the first part of this multi-article series, I will discuss what exactly constitutes a search.  Sometimes, what is and is not a search is quite simple.  Police opening car doors, a trunk and looking under seats constitutes a search.

On the other hand, if an officer observes someone walking down the street with a gun in hand, seeing the gun in plain view does not constitute a search.  This article will examine some of the middle ground areas that are less clear and explain the law with respect to whether the described conduct constitutes a search.  Remember, if the conduct does constitute a search, police need probable cause or a warrant; if it's not a search, police are within their rights to use the evidence they find against a suspect.  The general rule is that a person has fourth amendment rights against a search if they have an actual and reasonable expectation of privacy.  If I am in my basement, with no windows, I have a reasonable expectation of privacy; on the other hand, if I am holding contraband in my hand in a public place, I do not have the same reasonable expectation.

OUTSIDE SURVEILLANCE
It might seem like having a high fence, hedges or even wall around one's property would create a reasonable expectation of privacy.  After all, no one walking by, driving by or standing on a neighboring property can see what is going on on the property.  However, the Supreme Court disagrees!  In the 1989 Supreme Court case Florida v. Riley, the Supreme Court held that police could fly over a property (at a height of 400 feet) without constituting a search for Fourth Amendment purposes.  The Court reasoned that private citizens could fly over the property as well and that there is therefore no reasonable expectation of privacy with respect to that conduct.  In 2001, the Court decided another case, Kyllo v. United States, holding that use of infrared scanners to detect the heat caused by lamps in marijuana grow operations, even though done off of the property, was a search, because the technology was not generally available to the public.  While this decision does not directly overrule the court's decision in Riley, it is hard not to doubt that members of the public would be regularly flying over top of someone's property with a helicopter.  These cases provide guidance for other similar conduct.  If, for example, law enforcement became equipped with low-flying, small and maneuverable drone surveillance craft (see my article on drone surveillance and our privacy rights), a defense motion to suppress the evidence would focus on the Court's decision in Kyllo.  Meanwhile, the prosecution would argue that the drones are readily available and similar

K-9 SNIFF
Recently, the Supreme Court has called a K-9 sniff at the front door of a residence a search, but still permits a dog sniff to be done roadside so long as conducting the sniff does not cause undue delay.  For more information about K-9 Sniffs, read my earlier articles on the topics:  Constituionality of K-9 Sniffs and Recent Developments in K-9 Sniff Law).

TRACKING DEVICES
Police cannot put a tracking device on someone's car without a warrant, but that doesn't mean that they cannot use them without a warrant.  In United States v. Karo, the DEA put a tracking device in a barrel before it was sold to a suspected drug dealer.  Since the barrel's owner (prior to the sale) consented to the placement of the device, and the purchaser willingly accepted the barrel from the seller, the court found that there was no seizure, only a minor trespass.

TRASH
In California v. Greenwood, the Court addressed whether police need a warrant to go through someone's trash.  Property discarded with the trash also throws out any expectation of privacy.  While trash is placed on a sidewalk for the purpose of being picked up by a trash truck, it is not uncommon for people to go through trash to take discarded belongings.  So long as trash-picking is not done with the intent to use sensitive information for fraud, it is legal.  It is therefore lawful for police, too.

SEARCH OF PREMISES DURING ARREST
Two hallmark cases deal with searches of homes conducted during an arrest.  In Chimel v. California, police searched Chimel's home while executing an arrest warrant.  The Court held that in doing so, the police violated the search warrant requirement for a search of one's home.  The police did have a valid arrest warrant, but not a search warrant.  Per the arrest warrant, they were authorized to arrest Chimel, and to do a protective sweep of the house for their safety.  By opening drawers, the police exceeded that scope and the protective sweep became a search.  In Payton v. New York, the Court addressed whether officers could arrest someone in their home based on probable cause.  The Court determined that probable cause was not enough, but that if there were exigent circumstances, they could enter a home to make an arrest. 

Other Articles in this Series: 

UNREASONABLE SEARCH AND SEIZURE:  Stop and Frisk and Search of Persons
UNREASONABLE SEARCH AND SEIZURE:  Consent Searches
UNREASONABLE SEARCH AND SEIZURE:  Search of Vehicles and Effects
UNREASONABLE SEARCH AND SEIZURE:  How to Suppress Evidence

If you, or someone you know, has been arrested or charged with a crime on the basis of an alleged consent search, you need a Los Angeles Criminal Defense Attorney who can assert your rights by filing and arguing a motion to suppress the evidence against you.  Contact our office for a free consultation at (323) 803-4352.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
[email protected]
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar