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Know Your Rights – Search and Seizure Laws

Your Constitutional Rights Include (Among Others):

  • Not to have your personal property searched without a search warrant;
  • To refuse to answer police questions or make any statements;
  • To refuse to open your door to your home unless there is an emergency or a search warrant;
  • Not to be detained without your consent or questioned (even at airports)

Invocation of Rights

  • “I invoke and refuse to waive my 6th Amendment right to an attorney of my choice. I respectfully request you do not ask me any questions without my attorney present.”
  • “I do not consent to any search or seizure of myself, my home or of any property in my possession or under my control. I respectfully request you do not ask me about my ownership interest in any property. Please do not make any comment or ask any questions about this decision.”

Probable Cause: “Probable Cause” must exist, otherwise the seized evidence can’t be used against the defendant in court, there must be a reasonable belief that a crime has been or is about to be committed (i.e. that there is contraband present.) Search of homes requires warrants. Automobiles can be searched without a warrant.

The Smell of Marijuana: the smell of marijuana (burnt or fresh) by police or their trained dogs is probable cause to search the suspect’s person and car without a warrant, and is the basis to obtain a search warrant for a home or other place.

Reasonable Expectation of Privacy is Required for “Standing” to Suppress Evidence: In many states and under federal law, the defendant must have a reasonable expectation of privacy, called “standing” in the location of the search in order to challenge the admissibility of illegally seized evidence and have it suppressed.

Car Passengers: People who have their possessions, such as backpacks, in someone else’s car have no standing to challenge an illegal search. There is no recognized right of privacy in someone else’s car unless you are the driver at the time of search. However, all persons have reasonable expectation of privacy regarding the clothing they are wearing and anything on their person. Passengers can challenge the reason for the stop.

House Guests: Overnight guests have the same rights as the occupants to object to the illegal search of the host’s home. Campsites and motel & hotel rooms are also protected.

Backyard Fences: Renters’ and homeowners’ enclosed yards (i.e. a yard with a 6-foot fence, even with small cracks) are protected from police peeping close up through the fence but not from aerial observation.

In Jail: There is no right of privacy while in police cars, jail (including telephone calls) or in visiting rooms, except in-person meetings with lawyers or clergy.

Telephone Conversations: on hard wire, cell phones and in telephone booths are protected, unless one party agrees to police listening in. Cordless phone users do not have an expectation of privacy because conversations can be heard by neighbors with some frequency.

Police May Not Enter a Home Based On Seeing Occupants Smoking Marijuana: [People v HUA 1.4.08 158 Cal. App. 4th 1022)] Police entry without warrant into defendant’s apartment was not justified under the exigent circumstances exception to the warrant requirement.

For more information on your rights and a menagerie of other useful information, visit the Flex Your Rights website here



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