4A: Warrantless searches and arrests

Question 1

Exigent circumstances

Answer 1

A police officer may effect an arrest without a warranty where exigent circumstances exist:

• In a residence, although police officers generally may not effect such arrests without warrants;
• When a person commits a felony or misdemeanor in the arresting party’s presence.

The exception, however, does not apply when police create the exigency.

Question 2

Exigent circumstances: blood draws

Answer 2

Absent exigent circumstances, police need a warrant for a DUI blood draw.

But if officers cannot obtain a warrant without significantly undermining the efficacy of the search, exigent circumstances exist.

Question 3

Searches incident to a lawful arrest

Answer 3

A lawful arrest permits the arresting officers to make a contemporaneous search of the person arrested and the immediate surrounding area to:

(1) Protect officers from weapons or other dangers, and;
(2) Prevent the destruction or concealment of evidence.

Any evidence discovered during a search incident to a lawful arrest can be used against the person arrested.

Question 4

Searches incident to a lawful arrest: cell phones

Answer 4

A warrant is required to search the contents of a cell phone.

Question 5

Consent to search

Answer 5

A person may consent to a search, and the officer need not warn the search subject of her right to refuse.

Question 6

Consent to search: deception

Answer 6

Consent may be obtained by outright deception—e.g., by an undercover officer.

Question 7

Consent to search: third parties in possession

Answer 7

If in possession, third parties can consent to searches of the search subject’s property.

Co-occupants can consent to searches of a property, even if the suspect is not present, but officers cannot search over the objection of a present occupant.

Question 8

Automobiles and contraband

Answer 8

If police have probable cause to believe an automobile contains evidence of contraband, they can search those parts of the vehicle that might contain contraband, even without an arrest.

But the search must be reasonable relative to the suspected contraband—e.g., police cannot search a purse for machine guns.

Question 9

Automobiles and contraband: pretextual stops

Answer 9

Searches following pretextual stops are acceptable so long as officers have probable cause for the actual suspected crime.

Question 10

Plain view

Answer 10

There is no reasonable expectation of privacy in an item in plain or public view.

Thus, when police are legally present, they can seize any item in “plain view”—or “plain smell”—even if that item was not named in the warrant.

Question 11

Administrative searches

Answer 11

Police do not need search warrants to conduct administrative searches: searches that are used to ensure compliance with various administrative regulations.

Permissible warrantless administrative searches include:

• Airplane boarding areas and international borders;
• Highly regulated industries—e.g., gun shops;
• Searches of students in public schools;
• Checkpoint searches.

Question 12

Stop and frisk

Answer 12

An officer who does not have probable cause to arrest may make a limited search of the person, such as a pat down of the outer clothing, if:

(1) he has reasonable suspicion that the suspect was or is involved in criminal activity; and
(2) that the frisk is necessary for the preservation of his safety or the safety of others.

Question 13

Stop and frisk: plain feel exception

Answer 13

An officer may seize the evidence if discovered with an open hand during a valid frisk—if the evidence had physical characteristics that make its identity immediately obvious.

Question 14

Exigent circumstances: securing the premises

Answer 14

Officers are entitled to secure premises—i.e., prevent people from moving things—while they obtain a warrant.

But where this does not suffice, e.g.:

• “hot pursuit,” or
• immediate danger: for example, responding to a bomb threat or searching for a dropped gun where a child might find it,

officers may conduct a search without getting a warrant first.

Question 15

Searches incident to a lawful arrest: scope

Answer 15

If an arrest is lawful, no warrant is needed for a search of:

• Limited scope:

(a) If on the street, the suspect’s person and wingspan;
(b) If at home, the immediate area around a person;

• A car passenger compartment, if the person to be arrested is within reach of it;
• DNA.