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general / Constitutional Law

Search and seizure basics, Part 3

Pirozzi elia

Rancho Cucamonga Courthouse

Elia V. Pirozzi

Judge, San Bernardino County Superior Court


The objective of this article and self-study test is to discuss exceptions to the general warrant requirement of the Fourth Amendment, provide an overview of remedies for Fourth Amendment violations, and identify exceptions to the exclusionary sanction.


Search Incident to Arrest

A police officer is justified in conducting a search incident to arrest provided there is (a) a lawful custodial arrest and (b) a contemporaneous search. New York v. Belton, 453 U.S. 454 (1981).

(1) Non-Vehicle Searches Incident to Arrest. A person lawfully arrested and taken into custody is subject to a full search of the suspect's person and areas "within his immediate control." Chimel v. California, 395 U.S. 752 (1969); see also Gustafson v. Florida, 414 U.S. 260 (1973). A full search of an arrestee is permitted regardless of the nature, type or level of the offense for which the arrest was effectuated. Gustafson; see, e.g., People v. Redd, 48 Cal. 4th 691 (2010). The term "immediate control" has been interpreted as "the area from within which [the suspect] might gain possession of a weapon or destructible evidence." Chimel, 395 U.S. at 763. However, once such items are under exclusive police control and no present danger exists that an arrestee might gain access, police may not open and examine the items without a search warrant. U.S. v. Chadwick, 433 U.S. 1 (1977). The scope of the search extends to items immediately associated with an arrestee. See U.S. v. Robinson, 414 U.S. 218 (1973) (cigarette pack); Cupp v. Murphy, 412 U.S. 291 (1973) (scrapings under arrestee's fingernails). However, the search incident to arrest exception generally does not apply to searches of data stored on cellphones because they implicate substantially greater individual privacy interests than a brief physical search. See Riley v. California, 134 S. Ct. 2473 (2014). A search incident to arrest must be conducted substantially contemporaneous with the arrest and confined to its immediate vicinity. Vale v. Louisiana, 399 U.S. 30 (1970).

(2) Vehicle Searches Incident to Arrest. The police constitutionally may conduct contemporaneous searches of the passenger compartment and containers of a vehicle incident to a custodial arrest of an occupant, or recent occupant, of a vehicle so long as the area is in the immediate control of the arrestee. Belton; Thornton v. U.S., 541 U.S. 615, 617 (2004) (extending Belton to persons who left the vehicle before police contact). The vehicular search, however, is permitted "only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search" so that the scope of the search is commensurate with officer safety and protection of evidence. Arizona v. Gant, 556 U.S. 332, 341 (2009). Alternatively, vehicle searches incident to arrest are justified when it is reasonable for the officer to believe that "evidence relevant to the crime of arrest might be found in the vehicle." Id. at 343-44. Reasonable belief in this context is construed as the requisite degree of suspicion compatible with limited intrusions comparable to investigatory stops. People v. Evans, 200 Cal. App. 4th 735 (2011). Thus, "[r]easonable suspicion, not probable cause, is required." Id.

Inventory Searches

An inventory search of a vehicle is considered "reasonable" under the Fourth Amendment without a search warrant when conducted consequent to a lawful impound. Colorado v. Bertine, 479 U.S. 367 (1987). Under Bertine, for an impound to be lawful (a) the temporary seizure of the vehicle must be based on "something other than suspicion of evidence of criminal activity" and (b) the police officer's discretionary decision to impound the vehicle must be exercised according to standardized policy and procedures. The standardized police agency procedures for an inventory search must minimize officer discretion in its scope to ensure it does not become a "ruse for a general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990). Moreover, the scope of the inventory search must be reasonable in its breadth. South Dakota v. Opperman, 428 U.S. 364 (1976).

Emergency Aid

Police may enter a home without a warrant when there is an apparent need to provide emergency assistance to someone seriously injured or to protect an occupant from imminent injury. Michigan v. Fisher, 558 U.S. 45 (2009); Brigham City, Utah v. Stuart, 547 U.S. 398 (2006). The test is whether there is "an objectively reasonable basis for believing" that medical assistance is necessary or individuals are in danger. Fisher, 558 U.S. at 47; Brigham City. Thus, neither the subjective intent of the particular officer nor the seriousness of any crime under investigation is material to the analysis. See Fisher.

Community Caretaking Functions

The community caretaking exception to the warrant requirement generally has been applied to impounding vehicles and conducting inventory searches. See Bertine. Police officers engaged in their authorized "community caretaking" responsibilities may also under certain circumstances enter a residence without a warrant provided the post-entry conduct is "suitably circumscribed" to doing no more than reasonably necessary to preserve life or property and to provide appropriate assistance to meet these objectives. People v. Ray, 21 Cal. 4th 464 (1999). Correspondingly, law enforcement officers lawfully may seize any contraband or evidence they come across in plain view during their community caretaking functions. Id. at 479. The "reasonableness" of an officer's conduct is predicated on whether, as a reasonably prudent officer under the circumstances, he knew of specific and articulable facts which, taken with rational inferences from those facts, reasonably warranted his intrusion to resolve the possibility someone inside required assistance or property needed protection. Id. at 476, 478; People v. Block, 6 Cal. 3d 239 (1971). The officer must not have "[a]ny intention of engaging in crime-solving activities," and the search must be strictly limited to that reasonably necessary to accomplish the specific caretaking purpose. Ray, 21 Cal. 4th at 478.

Searches of Parolees and Probationers

A search of a parolee or a probationer subject to a valid parole or probation search condition may be effectuated without reasonable suspicion that the subject has violated the law or possesses contraband or evidence of a crime. Samson v. California, 547 U.S. 843 (2006) (state parolee); People v. Bravo, 43 Cal. 3d 600 (1987) (state probationer). When conducting the search, the police officer must know the person detained, arrested or searched is in fact a parolee or probationer. People v. Sanders, 31 Cal. 4th 318 (2003) (adult parolee); People v. Hester, 119 Cal. App. 4th 376 (2004) (adult probationer). The parole or probation search must not exceed the scope of the terms articulated in the search clause under examination. People v. Woods, 21 Cal. 4th 668 (1999). Furthermore, under Woods, a search of the subject's residence is limited "to those areas of the residence over which the probationer [or parolee] is believed to exercise complete or joint authority." Moreover, this exception to the warrant requirement is applicable only if the officer's decision to search is not arbitrary, capricious or harassing. People v. Reyes, 19 Cal. 4th 743 (1998). That is, the motive to search must be related to rehabilitative, reformative or legitimate law enforcement purposes, and not generated by personal animosity toward the parolee or probationer. Id. at 754.


All evidence obtained in violation of the Fourth Amendment must be suppressed, including not only the "direct" or "primary" evidence seized, but also derivative evidence subsequently obtained through information gained by the police from their unlawful conduct. People v. Mayfield, 14 Cal. 4th 668 (1997). Nevertheless, several exceptions to the exclusionary sanction have developed from a policy that deterring police misconduct is outweighed by the cost of suppressing reliable evidence of criminal activity. California v. Greenwood, 486 U.S. 35 (1988).

Independent Source

The independent source doctrine is based on the concept that the prosecution should not be placed in a worse position than it would have been had the illegally obtained evidence also been discovered "by means wholly independent of any constitutional violation." Nix v. Williams, 467 U.S. 431, 443 (1984). Accordingly, if a subsequent lawful search for evidence is "genuinely independent" of an earlier and tainted seizure and "no information gained from the illegal entry affected either the law enforcement officers' decision to seek a warrant or the magistrate's decision to grant it," the challenged evidence will be admissible. Murray v. U.S., 487 U.S. 533, 540 (1988); see also Nix; Segura v. U.S., 468 U.S. 796 (1984).

Inevitable Discovery

Where the prosecution can demonstrate that information or evidence obtained by an unreasonable search or seizure "inevitably" would have been discovered regardless of the underlying illegality, the challenged evidence will be admissible. Nix. The prosecution must prove by a preponderance of the evidence that, through a separate line of investigation, application of routine police procedures, or some other circumstance, the information "ultimately or inevitably would have been discovered by lawful means." Id. at 444; People v. Carpenter, 21 Cal. 4th 1016 (1999). The inevitable discovery exception is a corollary of the independent source exception. Murray.


If police obtain evidence "by means sufficiently distinguishable to be purged of the primary taint," then suppression is not required. People v. McInnis, 6 Cal. 3d 821, 825 (1972); see also Murray. Although no single factor is dispositive, those to be considered are (a) the temporal proximity between the illegal act and the discovered evidence, (b) the presence or absence of intervening circumstances, and (c) the purpose and flagrancy of the misconduct. People v. Boyer, 38 Cal. 4th 412 (2006).

Good Faith

The exclusionary rule does not bar the introduction of evidence obtained by a police officer relying "with objective good faith" upon an invalid search warrant. U.S. v. Leon, 468 U.S. 897, 921 (1984); cf. Messerschmidt v. Millender, 132 S.Ct. 1235 (2012). "Objective good faith" has been defined as "objectively reasonable reliance" on a warrant. Leon, 468 U.S. at 922. The government has the burden of establishing the officer's "objectively reasonable" reliance. People v. Camarella, 54 Cal. 3d 592 (1991). However, if a judge issuing a warrant is "misled" by information in a probable cause affidavit that the affiant knows was false, or would have known was false except for his reckless disregard for the truth, suppression remains an appropriate remedy. Leon. Typically, challenges to warrants under the good faith exception focus on whether (a) reliance on a warrant or warrant affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or (b) the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Id. The U.S. Supreme Court has explicated that the exclusionary rule is designed to "deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Herring v. U.S., 555 U.S. 135, 143 (2009). Therefore, where an arrest or detention results from erroneous information originating from agencies or organizations outside of law enforcement, or resulting from negligent mistakes of law enforcement agencies not made deliberately, recklessly or routinely, suppression may not be required. Arizona v. Evans, 514 U.S. 1 (1995); Herring.


The exclusionary rule is not applicable to the prosecution's use of illegally obtained evidence for the purpose of impeaching a defendant's own testimony on both direct and cross-examination. James v. Illinois, 493 U.S. 307 (1990); U.S. v. Havens, 446 U.S. 620 (1980). The use of previously suppressed evidence, however, cannot be used to impeach defense witnesses. James.

Collateral Source

The collateral source exception permits the admission of illegally obtained evidence when it is being used for purposes other than prosecution. See U.S. v. Calandra, 414 U.S. 338 (1974) (grand jury proceedings); Stone v. Powell, 428 U.S. 465 (1976) (habeas proceedings); INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (deportation proceedings); People v. Landau, 214 Cal. App. 4th 1, 23 (2013) (Sexually Violent Predators Act commitment).


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