4A - Exceptions to Warrant req Flashcards
What are the 6 exceptions to the warrant req (i.e. no warrant, OK)?
- plain view
- consent
- search incident to arrest
- exigent circumstances: hot pursuit/evanescent evidence/emergency aid
- automobile search
- stop & frisk
What may cops search w/o a warrant under the search incident to arrest exception?
When officer makes a constitutional arrest (i.e. based on requisite PC), may search the person & areas (wingspan) where that person may reach to obtain a weapon or destroy evidence.
Search must be contemporaneous (close in time).
What may a cop search when they arrest someone in a car?
Generally wingspan area and person + the compartment IF, at the time of arrest:
- arrestee is unsecured and still may gain access to the interior of the vehicle
- police reasonably believe that the evidence of the offense for which the person was arrested may be found in the vehicle
What test is applied wrt searches involving technology?
To assess whether cop can search (e.g. cell phone data, blood test), balance interest in privacy with degree to which search is needed to further legit govt interest.
- can search physical part of cell phone NOT data
- can use breath test during arrest for drunk driver NOT blood test
Under the automobile exception to the warrant requirement, when/how my cops search a car without a warrant?
When police
- have probably cause to believe that a vehicle contains evidence of a crime
- and car is NOT within curtilage (e.g. driveway) of home
- they may search the entire vehicle and any container that reasonably could hold the thing searched for (including passenger’s stuff)
- may also tow the vehicle to station to search later (or seize if have PC to believe car itself is contraband)
What may cops seize without a warrant under the plain view exception?
A cop may make a warrantless seizure when
- is lawfully on premises (e.g. executing arrest warrant, search warrant, public space)
- discover evidence of crime
- see such evidence in plain view (sights, smell, sound)
- have PC to believe (it’s immediately apparent) that the item is evidence of crime
E.g., cop executing search warrant for gun, looks in drawer for gun and finds heroin, can take the heroin even tho warrant specifies gun.
When may a cop conduct a warrantless search under the consent exception?
A warrantless search is lawful if the cops have voluntary consent from a person who has authority to consent.
- person need to know that they could have denied consent
- “person with authority” = anyone with apparent equal right to use or occupy the space
- BUT if a co-occupant is present and denies consent, the other cannot give consent if search is directed at the co-occupant (unless that person has been removed for reason unrelated to refusal)
When/what may an officer search without a warrant under the stop and frisk exception?
- May make Terry stop w/o warrant when cop has articulable and reasonable suspicion of criminal activity (can require to state name)
- May frisk person if they reasonably believe person may be armed or dangerous
- scope is limited to patdown of outer clothing, but can reach in pockets if they can tell from “plain feel” that contraband/weapon was inside
- for vehicle stops includes frisk of person + vehicle search where weapons may be placed
Note: can acquire PC during stop sufficient for arrest + further search incident to arrest
What is the evanescent evidence exception to the warrant req?
If evidence is at risk of being destroyed/disappear quickly, cop my conduct warrantless seizure of it (e.g. evidence under fingernails).
When may a cop conduct a warrantless search or seizure under the hot pursuit exception?
When police are in hot pursuit (within 15 min behind) a fleeing felon, they may make warrantless search & seizure, including pursuing them into dwelling.
If person is suspected of misdemeanor, then may not be able to enter home - depends.
E.g. hot pursuit of felon, felon runs in random home, they can enter home and take evidence in plain view
What is the emergency aid exception to the warrant req?
Cops may enter a premises w/o warrant if it seems reasonably necessary to do so to prevent an emergency threatening safety of health of person or public.
What is the standard req’d for administrative inspectors to secure a valid warrant to enter a home/commercial building?
Less than probable cause, need to show general and neutral enforcement plan.
Sometimes warrantless searches ok, e.g.,
- seize spoiled or contaminated food
- search of biz within highly regulated industry
- inventory searches of arrestees
- strip searches of prisoners before entering
- searches of airline passengers prior to boarding
- searches of parolees & homes
- govt employees desks, files
- drug tests of railroad EE’s, customs EE, public school students
When may a public school search its students?
Warrant and/or PC not required. As long as they have reasonable grounds to conduct the search, which req’s:
(1) offers moderate chance of finding evidence of wrongdoing
(2) measures of searching are reasonably related to the objectives of the search
(3) AND, search is not excessively intrusive in light of age, sex of student and nature of wrongdoing
What are the rules wrt search & seizure at/outside of border?
- 4A doesn’t apply outside border
- at border, 4A is weak: do NOT need anything to stop/search at the border
- includes fixed checkpoints, can stop, disassemble car - inside the border, need reasonable suspicion to stop vehicle if suspected of undocumented immigrants
- can open mail if have reasonable cause to suspect contraband
- can detain person if RS to suspect have contraband inside body
- fixed checkpoint
Note: can use illegally obtained evidence in civil deportation hearing
When may evidence be obtained via wiretapping?
Wiretapping = search under 4A, so it requires a valid warrant. In order to get a valid warrant to wiretap, need to show:
- PC
- name suspected ppl to be involved in convos
- describes with particularly expected convos
- limited to short time period
- terminated when desired info is obtained
- return is made to the court showing convos
