In the California Legal Update, Vol. 25, #9 (Aug. 30. 2019), I wrote in that edition’s Administrative Notes a piece on California’s evolving “Red Flag” statutes (Pen. Code §§ 18100, et seq.), on the books since January 1, 2015, and expanded several times since then. I’ve since been asked whether a search warrant is necessary in those cases where an officer is unable to secure a lawful consent to search the restrained person’s residence for guns or ammunition. Although there is yet to be any case law on this issue as it might relate to the Red Flag statutes, my strong opinion is “Yes.” If you can’t get a homeowner’s free and voluntary consent (whether it’s the person subject to the gun violence restraining order or someone else authorized to give consent), you need a search warrant. This opinion is not rendered here in a vacuum, however. In the depublished case of People v. Sweig (2008) 167 Cal.App.4th 1145, it was held that a search warrant was necessary in order to conduct a non-consensual search for firearms in a W&I § 5151 patient’s home. This case was depublished only because the California Supreme Court granted of a hearing in the matter, and then dismissed the suit as a moot issue upon the Legislature’s enactment of P.C. § 1524(a)(10), authorizing the issuance of a search warrant in such cases. Since then, the Legislature has also enacted P.C. § 1524(a)(14) (effective Jan. 1, 2016) which provides legal authority to obtain a search warrant for firearms and/or ammunition “that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to P.C. §§ 18100 et seq. (i.e., the “Red Flag” statutes) if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.” Also note that P.C. § 29810(c)(4) further provides that after a court makes the necessary probable cause finding as noted in subd. (3) of section 29810(c), the court is required to issue an order for the search and removal of firearms upon a finding that the person has failed to relinquish the firearms. So the bottom line is that it is apparent that the Legislature, at the very least, expects you to get a search warrant before searching someone’s residence or other protected areas (e.g., a business, etc.). Based upon Sweig, depublished or not, we know that at least one court, and probably the California Supreme Court, expects you to get a warrant. And I dare say the Fourth Amendment’s protections against warrantless searches, absent an exigency or consent, expects you to get a warrant. So, get a warrant.