San Diego Criminal Defense Attorney Blog

The Fourth Amendment of the United States Constitution provides people "the right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." What this means, in plain English, is that a law enforcement officer cannot search a person--including that person's private property--without either a search warrant, consent, and/or an emergency situation.

But in Oakland, a little-known city program known as "SMART," which stands for Specialized Multi-Agency Response Team, has given law enforcement officials a way to potentially circumvent the Constitution. The purpose of a SMART inspection, in theory, is to "bring a building into code for a better quality of living." In practicality, it is a way for peace officers to enter and search a person's home without consent or a warrant.

Such inspections have been going on for years; however, it appears that few in Oakland actually know what a SMART inspection is or what justifies one. It is unclear how many inspections have actually led to criminal charges, though one recent inspection led to the discovery of a marijuana growth operation in an Oakland loft. That particular inspection has led to more attention being paid to this program and its constitutionality. What happens next has yet to be determined, but one thing is certain: the way the SMART program currently operates puts private citizens at risk of having their constitutional rights violated.

Protect yourself--know your rights and how to assert them. There is a constant battle between citizens and the police and prosecution regarding your right not to be searched unreasonably. That battle has a front here in San Diego as well.

If you have been charged of a crime here in San Diego, a good defense might start with examining whether your arrest or search of your person or belongings was reasonable under the law. If the actions of the police are questionable, we may want to run a motion to get the evidence in your case thrown out. An experienced lawyer can help you recover your rights.

The United States Supreme Court handed down a decision this month that changes the rules regarding when a police officer may search a vehicle incident to the arrest of a vehicle occupant.  Prior to this decision, a San Diego Police officer or California Highway Patrol officer could search a vehicle after arresting a recent occupant of the vehicle for the purpose of securing the officer's safety.  You can read the opinion here: Arizona v. Gant.

The Fourth Amendment to the Constitution of the United States protects people from unreasonable searches and seizures.  In many instances, that means police must get a warrant prior to conducting a search.  The warrant requirement is subject to several exceptions.  There is a well used exception for vehicles, no warrant is required.  Police can search a vehicle as long as they have probable cause.

So what does the new decision change?  Let's say you are stopped for not having current vehicle registration and then arrested for drunk driving (DUI).  After your arrest, you are placed in the back of the police car.  It used to be that the police could search your car while you are safely locked up in the back of there's.  If they just happened to find a kilo of cocaine - your arrest just got more serious. 

Under the new rule in Gant, the police cannot search your car under those circumstances without probable cause.  And if they have probable cause that they will find an open container, for instance, that will not support a search for drugs in the trunk.

The California Penal Code provides for a hearing to determine whether the evidence in your case was legally obtained by the police.  If the judge at this suppression hearing finds that the police acted illegally, then the evidence might be thrown out. If evidence is thrown out, the prosecution may not have enough evidence to move forward with the case against you.  Even if there is still sufficient evidence to support the charges, your success at a suppression hearing will likely lead to a better plea offer.

The rules that protect you from unreasonable searches under the Fourth Amendment are extremely complex.  If you've been arrested and the police searched you, your house, your car or your belongings, you need a skilled California criminal defense lawyer who is familiar with the complex body of search and seizure law.

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