California Search Warrant Requirements, Procedures, and Probable Cause – PC 1523
California Search Warrant Requirements: How is a Search Warrant Issued?
A judge issues a search warrant on behalf of “the people,” represented by the District Attorney’s office, and executed by peace officers, pursuant to PC 1523. If you have been served with a search warrant, or if you have been searched without a search warrant in southern California, you must seek the professional assistance of a criminal defense attorney to ensure your rights have not been violated. At Wallin & Klarich, we have over 40 years of experience helping clients facing all types of criminal charges. Speak to us today for immediate help.
The California search warrant requirements or grounds for issuing a search warrant are as follows:
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- When the property was stolen or embezzled;
- When the property to be seized is evidence of the fact that a felony has occurred or that a particular person has committed a felony;
- When the property to be seized reveals child pornography;
- When there is a warrant to arrest a person;
- When the property to be seized is in possession of someone who intends to use it to commit a crime or in the possession of another to whom he/she may have delivered it for the purpose of concealing it or keeping it from being discovered;
- When a firearm or any other deadly weapon was used at the scene of a crime;
- When a mentally disturbed person is detained in possession of a firearm;
- When a person subject to a protective order (“restraining order”) is in possession of a firearm and fails to relinquish it; or
- During the investigation of certain misdemeanor crimes where a felony is also suspected.
Attorneys, doctors, psychologists and clergy are exempt from searches of their professional records unless suspected of criminal activity themselves. Additionally, police investigators are required to show probable cause when making an application to the judge for a search warrant.
What is Probable Cause in California?
Probable cause is the standard of proof by which an officer of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest. Probable cause is a term from the 4th amendment of the U.S. Constitution which guarantees the right of all persons to be free from unreasonable searches and seizures.
Before finding that probable cause exists, the judge may question (under oath):
- The police officer,
- The prosecutor, or
- The investigator who applied for the warrant, and
- Any witnesses that the person requesting a search warrant relied on to determine that a warrant was necessary.
A request for a search warrant may be made by a law enforcement officer or prosecutor filing an affidavit under penalty of perjury. Affidavits may be written or oral and must contain the facts that establish the grounds for the application or of the “probable cause” for believing that they exist. If your constitutional right against an unreasonable search or seizure has been violated by any officer of the law, an experienced criminal defense lawyer can file what is known as a Motion to Suppress Evidence, pursuant to California Penal Code Section 1538.5.
How Are Search Warrants Executed?
A California search warrant must contain language that can be described with reasonable particularity. “Reasonable particularity” means that the warrant should be so clear that nothing is left to the officer’s discretion when executing it.
This applies to both:
- The place to be searched, and
- The person or property to be seized.
This means that a search warrant must be executed according to the exact details contained in the warrant. A search warrant must also be served by the officer(s) named in the warrant, or in their presence, and by no other person (California Penal Code 1530).
Search warrants that are clear in their descriptions will be upheld in court and those that are declared to be vague may not be.
Time of Execution of the Search Warrant
A California search warrant shall be served during “normal business hours,” whenever practical. As a general rule, a search warrant may only be executed between 7 a.m. and 10 p.m. If, however, the judge finds good cause, he/she may authorize service at any time of the day or night.
Exceptions to Normal Business Hours
“Good cause” means that there is a factual basis for believing that a nighttime intrusion would be justified based on exigent circumstances. If, for example, you have several outstanding warrants, service may be authorized whenever possible. When establishing good cause, the judge must consider both public safety and the safety of the officers serving the warrant
Additionally, a California search warrant must be executed within ten (10) days of its issuance. If it hasn’t been executed within that time frame, it becomes void (California Penal Code 1534). If the warrant expires, it may be reissued as long as the judge still believes there is probable cause to support it.
Rights to Seized Property
When a police officer takes property under the warrant, he/she must give a receipt for the property taken (specifying it in detail) to the person from whom it was taken, or in whose possession it was found; or, in the absence of any person, he must leave it in the place where he found the property (California Penal Code 1535). All property or things seized on a warrant must be retained by the officer in his custody, subject to the order of the court.
How Long Does It Take to Get a Search Warrant?
In California, search warrants are issued by judges. How long it takes to obtain the warrant depends on how quickly an officer can convince the judge that a warrant is necessary. In special cases where time is of the essence, this may take as little as minutes, but it generally takes at least a few hours. Once a judge issues the search warrant, law enforcement must execute it within 10 days.
Speak to a Criminal Defense Attorney at Wallin & Klarich
If you’ve been the subject of a search warrant, it is vital that you contact an attorney at Wallin & Klarich immediately. Any lawfully seized evidence may be used against you in a criminal case. However, if any part of the search was unlawful, the attorneys at Wallin & Klarich can file a motion to suppress evidence pursuant to Penal Code Section 1538.5. If that motion is granted by the judge, the evidence will not be allowed to be used in court against you.
With offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina, Hemet, Temecula, and Victorville, the criminal defense attorneys at Wallin & Klarich have aggressively protected the rights of their clients for over 40 years. We have the knowledge and experience to help you win your case.
Call (877) 4-NO-JAIL or (877) 466-5245 today for a free consultation. We will be there when you call.
