Under the Fourth Amendment of the United States Constitution, a person has the right to be free from an unreasonable search of his or her person, residence, and property. In general, a search here is unreasonable, and will likely establish the basis for a police misconduct claim, unless authorized by a search warrant (A written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.)
There are a number of important exceptions to this general rule, including the following:
A search warrant is not required, and a search is reasonable, if the search is incident to a lawful arrest. If the arrest was unlawful, the search becomes unreasonable, and will likely establish the basis for a police misconduct claim. It is highly recommended you call a unreasonable search lawyer if you feel you have been violated.
A search is reasonable if the person searched, or if the person in lawful possession of the area to be searched, knowingly and voluntarily consents to the search, including no express refusal to consent by another person who is physically present and also in lawful possession of the area to be searched.
In determining whether consent to search was voluntary, a jury in a police misconduct lawsuit would consider all of the circumstances, including: Whether the consenting person was in custody; whether the officers’ guns were drawn; whether Miranda warnings were given; whether the consenting person was told that he or she had the right to refuse a request to search.
A search warrant is not required if under all of the circumstances known to the officer at the time of the entry or the search, a reasonable person would believe that the entry or the search was necessary to prevent destruction of evidence, the escape of a suspect, or some other consequence improperly frustrating proper law enforcement efforts. In addition, the officer needs to show that at the time he or she made the entry or the search, there was probable cause to believe that a crime had been or was being committed; and that there was insufficient time to get a search warrant. If the facts establish otherwise and the officers conduct was unreasonable, it will likely establish the basis for a police misconduct claim by the victim.
A search warrant is not required if, under all of the circumstances, the police officer had reasonable grounds to believe that there was an emergency at hand and there was an immediate need to protect others or themselves from serious harm, and that the scope of the search was reasonable.
A warrantless search of a person for weapons ( Terry Frisk) is permissible when an officer reasonably believes that the person is armed and dangerous. This occurs often while officers investigate reports of suspicious activity, during traffic stops, and while responding to complaints of domestic violence. A search for weapons is permissible if, under all the circumstances known to the officer at the time, the officer had a reasonable suspicion that the person was armed and presently dangerous to the officer or to others, and the scope of the search was strictly limited to that which is necessary for the discovery of weapons. If the officer acted unreasonably the officer’s Terry Frisk will likely establish the basis for a police misconduct claim by the victim.
Officers often fabricate conduct on the part of the victim as cover for their civil rights violations, such as “he was reaching into his waistband” or “he had a suspicious bulge under his overcoat” when there was evidence to the contrary.
Time is of the essence as there are statutes of limitations applicable to all civil claims against governmental agencies, and their employees, including police officers and sheriff’s deputies. For claims based upon federal statute (42 USC Section 1983 claims) there is a two-year statute of limitations in California. For California State law claims, such as California Civil Code 52.1 claims (a California statute which includes recovery of damages for federal civil rights violations), and claims for assault, battery, and negligence, it is mandatory to give notice of your intent to file a lawsuit to the individual police officer’s employer. This has to be done no later than six months following the incident during which the injury occurred. Unless filed in a timely manner you will forever lose your ability to file a lawsuit for damages.
Call to speak with one of our Unreasonable Search attorneys in Riverside, San Bernadino or Orange County.
Represented client injured by custodial staff while in prison. Case settled for $500,000 before trial.
Represented client injured by custodial staff while in jail. Case settled for $335,000 before trial.
Represented client subject to unreasonable search and seizure, and then subject to excessive force, being Tased by a police officer. Case settled for $400,000 before trial.