9. Valid Warrantless Searches Flashcards
Search Incident to Lawful Arrest:
Requirement:
♣ 1. Arrest must be lawful
♣ 2. Search must be contemporaneous with the arrest
♣ 3. Search must be limited to area within suspect’s reach or movement
Protective Sweeps
♣ Police may sweep an area for officer safety or with REASONABLE belief that accomplices may be present
Inventory Search
Police may search arrestee’s belongings or seized property when jailing an arrest suspect
Cars
♣ After arresting occupant, police may search the vehicle’s interior, including glove box, if at the time of the search:
• 1. Arrestee is unsecured and may access the vehicle interior OR
• 2. They reasonably believe evidence of the crime for which the arrest was made may be found in the car
♣ Breathalyzer: a warrantless breathalyzer test is valid following a lawful arrest based on probable cause of drunk driving.
Cell phones
♣ Police may not search digital info on a phone seized during an arrest without a warrant
Plain View Searches
o Police may search from any place where they are legitimately present when viewing
o Seizure based on plain view:
♣ Requirements:
• 1. Police are legitimately on the premises from which they viewed the evidence to be seized
• 2. Criminal activity or contraband is immediately apparent and
• 3. Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime
o Scope of plain view searches:
♣ Includes anything viewable from land or public property, even if only viewable through binoculars
♣ Plain smell: included within plain view
o Limitations
♣ Police cannot use technology not generally available to the public to view evidence that may constitute a plain view search
Consent to Search Requirement (2):
Requirements:
♣ 1. Voluntarily and intelligently made
• police cannot falsely claim legal cause to search
• police have no obligation to inform suspects that they have a right to refuse consent
♣ 2. Person giving consent has authority to consent
Consent to Search
Scope of Consent
♣ Can be limited by consenting party
♣ Violation of scope renders the entire search non-consenting
Consent to Search
3rd Party Consent
♣ Allowed if there is authority to consent
♣ Where multiple people have property rights any single one can consent to the search of any area where they have authority to consent
♣ A resident’s right to consent trumps a non-resident
• (e.g. if both a tenant and landlord are present, the tenant’s refusal trumps the landlord’s consent)
♣ Scope of consent is dictated by the person present with the highest authority to consent
♣ Refusal trumps consent: no consent if two persons with equal right to possession disagree on consent
Automobile Search Exception
If probable cause exists, police may search an entire car (including trunk) and containers or compartments inside that may contain evidence
Requirements:
♣ 1. Police must have probable cause to search the car and
♣ 2. Probable cause must arise before the search begins
♣ Police may search passengers and their belongings
Stop and Frisk
Police may detain person for an investigative purpose if they have reasonable suspicion of criminal activity
♣ Length
• Detention must be no longer than necessary to verify the suspicion
♣ Frisk
• If police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons.
• Plain feel:
o If police have reasonable belief during the frisk that what they feel is a weapon or contraband, they may seize the suspect item.
♣ Evidence validly seized is admissible
Officers cannot manipulate the item to develop reasonable belief – it must be plain touch only
What’s the difference between a stop frisk vs. arrest
♣ A stop is a brief detention, less then a arrest.
♣ But police may develop probable cause to arrest based on anything occurring or discovered during the stop and/or frisk
Exigent Circumstances
If exigent circumstances exist, police can search or seize evidence without a warrant
o Hot pursuit:
♣ While actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection.
o Evanescent evidence:
♣ Police can search or seize evidence that could disappear if police were required to secure a warrant
o Emergency:
♣ E.g. bomb threat, terrorism
Administrative Searches
Administrative Searches
♣ Government agencies may conduct routine searches or inspections of highly-regulated businesses or industries
♣ A warrant is required for inspections of private residences or commercial buildings
• Requires less particularity than standard warrants
• A general and neutral enforcement plan for the searches will suffice to validate the warrant
Public School Searches
♣ School officials must have reasonable grounds to believe search is necessary
• Less burdensome standard than probable cause
♣ School searches reasonable if:
• 1. Search offers a moderate chance of finding evidence of wrongdoing
• 2. Procedure for searching is reasonably related to the objectives of the search and
• 3. Search is not excessively intrusive
♣ Drug tests: random urinalysis is permissible for public school students participating in extracurricular activities.
