SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

See also City of Santa Cruz v. Municipal Court (1989) 49
Cal.3 rd 74, 87-88; People v. Smith (1976) 17 Cal.3 rd 845,
850.)
Each level of hearsay, however, must be shown in the
affidavit to be reliable. (See People v. Superior Court
[Bingham], supra; Caligari v. Superior Court (1979) 98
Cal.App.3 rd 725; People v. Love (1985) 168 Cal.App.3 rd
104.)
Miranda: Statements taken in violation of the defendant’s
Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16
L.Ed.2 nd 694].), so long as not coerced or involuntary, may be used
in an affidavit adding to the probable cause. (United States v.
Patterson (9 th Cir. 1987) 812 F.2 nd 1188, 1193; People v. Brewer
(2000) 81 Cal.App.4 th 442.)
Third Party’s Fourth Amendment Violation: Evidence obtained
in violation of someone else’s (i.e., someone other than the present
defendant’s) Fourth Amendment (search and seizure) rights may
be used as part of the probable cause in a search warrant affidavit,
unless the defendant can show that he has “standing” (i.e., it was
his reasonable expectation of privacy that was violated) to
challenge the use of the evidence. (People v. Madrid (1992) 7
Cal.App.4 th 1888, 1896.)
“Standing” depends upon a showing that it was the
defendant’s own constitutional rights which were violated.
(People v. Shepherd (1994) 23 Cal.App.4 th 825, 828.)
See “Standing,” above.
Information in a search warrant affidavit that is the product
of a violation of the defendant’s own Fourth Amendment
rights will be excised from the affidavit. The redacted
affidavit will then be retested to determine whether
probable cause still exists. (People v. Weiss (1999) 20
Cal.4 th 1073, 1081.)
Privileged Information:
© 2012 Robert C. Phillips. All rights reserved
Information that comes into the hands of law enforcement
that may be “privileged information,” obtained without any
“complicity” on the part of law enforcement, may be used
as a part of the probable cause justifying the issuance of the
search warrant. (People v. Navarro (2006) 138 Cal.App.4 th
299