4th Amendment: Evidentiary Search & Seizure; Warrant Exceptions; "Plain View" and "Consent"

Question 1

What is the rule w regards to the “plain view” exception to the warrant requirement (3)?

Answer 1

Police may make a WARANTLESS SEIZURE, IF:

1. they are LEGITIMATELY on the premises;
2. they discover EVIDENCE, FRUITS, or INSTRUMENTALITIES of crime, or CONTRABAND in PLAIN VIEW
3. They have PC to believe that the item is evidence, fruits, instrumentality of crime, or contraband (ie..it must be immediately apparent.

Question 2

What is the rule with regards to the warrant exception of “consent”?

Answer 2

• Warrantless search is VALID if police have VOLUNTARY CONSENT

Question 3

Is knowledge of the right to withhold consent necessary to establishing voluntary consent?

Answer 3

No

Question 4

What is the scope of a search pursuant to consent

Answer 4

• Scope may be limited by consent

HOWEVER –> Police may search all areas which a REASONABLE PERSON under the circumstances would believe to have been consented to

Question 5

What is the rule with regards to authority to consent to a warrantless search?

Answer 5

In General –> Anyone with APPARENT RIGHT OR AUTHORITY to occupy property may consent to search, and any evidence found may be used against other owners or occupants.

HOWEVER —>

1. Occupant CANNOT give valid consent to search when co-occupant is present and objects and the search is directed against co-occupant
2. HOWEVER –> if co-occupant has objected and is removed for a reason unrelated to refusal (ie..lawful arrest), the police may act on consent of remaining occupant, even if removed occupant refused consent.

NOTE –> be careful to check for reasonable apparent authority. A homeowner may have authority to consent over kitchen, but not locked roommates room.
- ALSO –> SCOTUS has not ruled on whether parent can override child’s objection to search of their room.