11. Exceptions to the Warrant Requirement

Question 1

what is the search incident to arrest exception to the warrant requirement?

Answer 1

incident to a constitutional arrest, the police may search the person and areas into which they might reach to obtain weapons or destroy evidence

Question 2

when does the search incident to arrest exception allow a protective sweep of the area?

Answer 2

when police believe accomplices may be present

Question 3

how close in time and place must the search be to the arrest?

Answer 3

contemporaneous in both time and place (but need not simultaneous with respect to auto searches)

Question 4

under what circumstances can police search the passenger compartment of a car during a search incident to arrest? (2)

Answer 4

only if, at the time of the search, either…
1) arrestee is unsecured and still may gain access to the interior of the vehicle OR
2) police reasonably believe that evidence of the offense FOR WHICH THE PERSON WAS ARRESTED may be found in the vehicle

Question 5

if search returned something different than what gave rise for the officer to search, will that evidence be excluded?

Answer 5

no (so long as the search is valid, items/contraband will be admissible)

Question 6

is a warrantless breath test incident to a DUI arrest permissible?

Answer 6

yes

Question 7

is a warrantless blood draw incident to DUI arrest permissible?

Answer 7

no

Question 8

what parts of a phone may be searched incident to arrest?

Answer 8

only the PHYSICAL attributes of the phone (not data)
**includes phone case insert, middle of a flip phone, etc

Question 9

what is the automobile exception to the warrant requirement?

Answer 9

if police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the WHOLE vehicle and any container that might reasonable CONTAIN the item for which they had probable cause to search
**NOTE = this includes the trunk (unlike with search incident to arrest/passenger compartment)

Question 10

can police conduct a warrantless search of a vehicle parked in the curtilage of the person’s home?

Answer 10

no

Question 11

when can police seize a vehicle from a public place without a warrant?

Answer 11

when they have probable cause to believe that the vehicle itself is contraband

Question 12

can police tow a vehicle to the station and search it later without a warrant?

Answer 12

only if the warrantless search of the vehicle is valid

Question 13

are searches under the automobile exception limited to the driver’s belongings only?

Answer 13

no (it also may include packages belonging to a passenger)

Question 14

what parts of a vehicle can police search when they only have PC to search one container in that vehicle?

Answer 14

ONLY that one container (not other parts of the vehicle)

Question 15

when must the PC necessary to justify a search under the auto exception arise to be valid?

Answer 15

can arise AFTER the car is stopped BUT MUST arise BEFORE anyone or anything is searched

Question 16

what is the plain view exception to the warrant requirement?

Answer 16

police may conduct a warrantless seizure when they…
1) are legitimately on the premises,
2) discover evidence, fruits, or instrumentalities of crime/contraband,
3) see such evidence in plain view, and
4) it is immediately apparent that the item is evidence, contraband, fruit, instrumentality of a crime

Question 17

is knowledge of the right to withhold consent a prerequisite to establish voluntary consent to a warrantless search?

Answer 17

no

Question 18

what is the scope of a warrantless search pursuant to consent?

Answer 18

scope of the search is limited to the scope of the consent given, but generally extends to all areas which a reasonable person under the circumstances would believe it extends

Question 19

who may consent to a search?

Answer 19

any person with an APPARENT equal right to use or occupy the property may consent to a search (and any evidence found may be used against the other owners/occupants)

Question 20

when can an occupant NOT give valid consent to a search?

Answer 20

when a co-occupant is present and objects to the search AND the search is directed against the co-occupant

Question 21

when can police conduct a search via consent despite the objections of a co-occupant?

Answer 21

when the co-occupant has been removed for a reason UNRELATED to their refusal and the remaining occupant consents to the search

Question 22

what is a Terry stop?

Answer 22

a brief detention for the purpose of investigating suspicious conduct

Question 23

what is a Terry frisk?

Answer 23

a patdown of the outer clothing and body to check for weapons

Question 24

when may a cop stop a person without probable cause for arrest?

Answer 24

when they have articulable and reasonable suspicion of criminal activity

Question 25

when may an officer conduct a protective frisk?

Answer 25

when they reasonably believe that the person may be (1) armed and (2) presently dangerous

Question 26

what is the scope of a protective frisk?

Answer 26

cop limited to a patdown of outer clothing UNLESS they have specific information that a weapon is hidden in a particular area of the suspect’s clothing

Question 27

when may an officer reach into suspect’s clothing and seize items during a protective frisk?

Answer 27

when the officer reasonably believes, based on the its plain feel, that the items are weapons or contraband

Question 28

what 2 things can a cop do when they stop a car for a traffic violation and reasonably believe that a driver/passenger is armed and dangerous?

Answer 28

cop can
1) conduct a frisk of the suspected person, and
2) search the vehicle BUT only as to the areas where a weapon may be placed

Question 29

what is evanescent evidence?

Answer 29

evidence that might disappear quickly if the police took time to get a warrant

Question 30

true or false: cops can manipulate outer clothing to get a better feel for what an item might be under the plain feel exception.

Answer 30

FALSE (no manipulation allowed – has to be PLAINLY contraband/weapon)

Question 31

what is the hot pursuit exception to the warrant requirement?

Answer 31

police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling

Question 32

true or false: police must be within 15 minutes behind a fleeing felon to be in “hot pursuit”.

Answer 32

TRUE (any longer and it is not a hot pursuit)

Question 33

true or false: if an officer seizes evidence in plain view seen while entering someone’s home in hot pursuit, that evidence is admissible.

Answer 33

TRUE (even if not the home of the fleeing felon – still lawful grounds for being on the prop)

Question 34

what is the emergency exception to the warrant requirement?

Answer 34

a cop may enter premises without a warrant if the cop faces an emergency that threatens the health or safety of an individual or the public

Question 35

true or false: warrantless drug tests of public school students who participate in extracurricular activities are permissible.

Answer 35

TRUE

Question 36

true or false: police can search/frisk airline passengers before boarding a plane.

Answer 36

TRUE

Question 37

true or false: a warrant or probable cause is required for public school officials to search public school students or their possessions.

Answer 37

FALSE (no warrant or PC required)
**NOTE = only need reasonable grounds for the search

Question 38

when will a school search be held to be reasonable? (3 rqmts)

Answer 38

reasonable if…
1) it offers a moderate chance of finding evidence of wrongdoing,
2) the measures adopted to carry out the search are reasonably related to the objectives of the search, and
3) the search is NOT excessively intrusive (in light of age and sex of student and the nature of the infraction)

Question 39

true or false: generally, wiretapping always requires a warrant

Answer 39

TRUE

Question 40

what is required for a valid wiretap warrant? (6 rqmts)

Answer 40

1) showing of PC
2) suspected persons involved in convos to be overheard are named
3) describes with particularity the conversations that can be overheard
4) tap is limited to a short period of time
5) tap is terminated when the desired info has been obtained, and
6) return in made to the court, showing what convos have been intercepted

Question 41

true or false: a speaker has NO fourth amendment claim if they make no effort to keep a convo private.

Answer 41

TRUE (clear risk of overhearing cuts of REP)

Question 42

true or false: a speaker assumes the risk that the person to whom they are talking in person is either consents to government monitoring or is a wired informant

Answer 42

TRUE (no REP here; assume risk of unreliable ear)

Question 43

what evidence is strictly prohibited under the due process clause?

Answer 43

evidence obtained in a manner that shocks the conscience (offends a sense of justice)
**EXAMPLE = torture