Legal Question in Criminal Law in California

Re: searches without warrants

Thanks for your posting. You were not specific as to the facts, but since you've asked for the laws, I can speak generally.

A SEARCH WARRANT is an official order authorizing a search of someone's home or other location. The controlling principles governing search warrants are generally provided by the U.S. Constitution's Fourth Amendment.

The procedure for obtaining a search warrant involves an ex parte presentation to the magistrate of an affidavit by the law enforcement officer seeking the warrant and requesting the magistrate to issue the warrant based on "'the probability, and not a prima facie showing, of criminal activity . . . .' " Illinois v. Gates (1983) 462 U.S. 213, 235; People v. Von Villas (1992) 11 Cal.App.4th 175, 217 ["To establish probable cause, one must show a probability of criminal activity; a prima facie showing is not required."]

Under 18 U.S.C. section 3109, an officer is permitted to "break open any outer or inner door of a house . . . to execute a search warrant," but only if "after notice of his authority and purpose," he is refused admittance.

A defendant has standing to challenge the legality of a search on Fourth Amendment grounds only if he has a "legitimate expectation of privacy" in the place searched. Rakas v. Illinois, 439 U.S. 128, 148 (1978). The defendant bears the burden of establishing his legitimate expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).

The Constitution of the United States, Amendment IV, declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

Re: searches without warrants

There are very limited exceptions to the requirement to obtain a search warrant. 1. Exigent circumstances - in layman's terms 'an emergency.' 2. Permission to enter by another legal occupant of the premises.