The Law office of Domenic Lombardo, San Diego criminal defense lawyer, works within all aspects of criminal law including those involving drug crimes. To understand the legality surrounding the use of different types of drug evidence collected without a warrant, read below. However, if you are facing a drug charge, contact us for a free consultation.
Where the police obtain a search warrant, or where the search occurs at a border or airport, different rules apply, which are beyond the scope of this article. But when it comes to the types of tools law enforcement can use or not, see below.
Drug Sniffing Dogs
The police may use drug sniffing dogs when executing a search warrant for cocaine, heroin, and marijuana. The use of specially trained dogs to sniff a car or luggage for narcotics generally does not violate a reasonable expectation of privacy.
Helicopters
Observations from public airspace in a physically non-intrusive manner do not interfere with privacy expectation, even if the flight is at a much lower altitude than commercial flights and has the specific purpose of viewing the defendant’s property. For example, the courts have approved helicopters at over 500 feet and planes at over 1000 feet, including unmanned surveillance drones.
Thermal Imaging Device (Heat Sensor)
The use of a thermal imaging device to detect whether a residence emits an unusual amount of heat impinges on reasonable expectations of privacy and is unlawful without a search warrant.
Surveillance
Looking through cracks in garage door while standing in driveway has been approved, but not peeping in windows on the side of a house where the resident would reasonably expect privacy is disallowed. Following and observing a person’s public activities is lawful.
Open Fields
No reasonable expectation of privacy exists, regardless of the owners efforts to construct fences or post private property signs, so the police can look over the fence.
Cameras: Aerial Photography
If anyone with an airplane and a camera can readily duplicate the photos, the photos do not violate privacy rights so long as they are limited to an outline and don’t reveal intimate details. Pole cameras are similarly allowed.
Magnetometer (Metal Detector)
Not allowed – they allow law enforcement to see what otherwise would be invisible to the naked eye.
X-Ray
Not allowed – they allow law enforcement to see what otherwise would be invisible to the naked eye.
Surveillance Meters
A meter installed on a utility pole within the property lines of a house to measure the electricity consumption of a residence, does not violate reasonable expectations of privacy.
Electronic Tracking Devices (Beepers or G.P.S.)
Beepers aid or substitute for visual observations of the movement and location of objects. Monitoring such a device without a warrant or consent is probably lawful while the object is in a moving vehicle or other place where the officers could follow it visually, but not while it is inside a residence. The use of monitoring beepers is lawful unless it reveals information that could not have been obtained through visual surveillance.
The use of Global Positioning Devices (G.P.S.), however, provides significantly more information to law enforcement than the older technology of beeping devices. Moreover, the real-time use of the devices when used with modern mapping systems raises significant privacy implications. These areas of the law are still being developed.
Wiretaps and Other Listening Devices
The use of electronic or mechanical equipment to hear what the unaided ear cannot generally violates reasonable expectations of privacy and is unlawful without prior judicial authorization (a warrant).
Manipulating Baggage
Officers can squeeze luggage to smell air that is expelled.
Body Cavity Searches
Strip searching a person for suspected smuggling of drugs in a body cavity, or searching his or her body cavity, is usually unlawful except in extraordinary situations or when based upon probable cause at a border.
Videotaping
Videotaping inside a person’s residence violates reasonable expectations of privacy absent a search warrant or consent, such as in cases where a confidential informant is wearing a video device.
Trash
Law enforcement may pick through a person’s trash for evidence without a warrant.
Confidential Informants
Confidential informants are a critical source of information for law enforcement and are used to conduct “controlled buys,” relay information back to the police, and set up drug deals for the police.
Consent
Where all else fails, the police can simply ask for permission or pressure a person into consenting to a search. Unlawful coercion will result in the search being invalidated. Of course, every person has a right to refuse consent to search.
Feel free to contact us for a free consultation if you are facing drug charges anywhere in California.