Crim Pro - 4th amendment S/S - Issue 3: WARRANTLESS SEARCHES

Question 1

ISSUE 3: IF NO WARRANT WAS USED Is the WARRANTLESS SEARCH through which criminal evidence was gathered valid under any of the 8 exceptions to the warrant requirement?

what are the 8 exceptions???

Answer 1

ESCAPIST

Exigent Circumstances
Search Incident to Arrest
Consent
Automobile
Plain View
Inventory
Special Needs
Terry "Stop and Frisk"

Question 2

EXIGENT CIRCUMSTANCES (first exception for warrantless searches)

Answer 2

includes three types
(1) Evanescent Evidence - evidence that would dissipate or disappear in the time it would take to get a warrant (e.g. scraping under fingernails)

(2) Hot Pursuit of a Fleeing Felon - allows police to enter the home of a suspect or a third party to search for a fleeing felon
(i) During hot pursuit, any evidence of a crime discovered in PLAIN VIEW while searching for the suspect is admissible (meets the PIC requirements)

(3) Emergency Aid Exception - Police may enter a residence without a warrant when there is an OBJECTIVELY REASONABLE basis for believing that a person inside is in need of emergency aid to address or prevent injury

Question 3

SEARCH INCIDENT TO ARREST (2nd exception for warrantless searches)

Answer 3

Arrest (also called “custodial arrest”) must be LAWFUL

Justifications for search
(1) officer safety; and (2) need to preserve evidence

TIMING: the search must be CONTEMPORANEOUS in time and place with the arrest

Geographic Scope: the WINGSPAN, which includes

(i) the body, clothing, AND
(ii) any CONTAINERS within arrestee’s IMMEDIATE CONTROL without regard to the offense for which the arrest was made

***in NY, to search containers within the wingspan, an officer must suspect that the arrestee is armed

Question 4

SEARCH INCIDENT TO ARREST (still on 2nd exception - the first “S” in ESCAPIST) : Rules for AUTOMOBILES

Answer 4

Automobile searched incident to a custodial arrest
(1) Permissible Scope: the interior cabin, including closed containers, but NOT the trunk

SECURED v. UNSECURED ARRESTEES - Once an officer has “secured” an arrestee (e.g. handcuffs and puts in squad car) the officer can search the arrestee’s vehicle ONLY if she has reason to believe the vehicle may contain evidence RELATING to the crime for which the arrest was made (if unsecured he may search)

**NY: Once the occupant is out of the car, the police cannot search containers inside the vehicle to look for weapons or evidence of crime

Question 5

CONSENT (3rd exception for warrantless searches)

ES”C”APIST

Answer 5

A) STANDARD: Consent must be VOLUNTARY and INTELLIGENT.
—To satisfy this standard, police officers DO NOT need to tell someone that she has the right to refuse consent.

B) SCOPE OF CONSENT: An officer’s consent to search extends to all areas for which a REASONABLE OFFICER would believe permission to search was granted

C) “APPARENT” AUTHORITY - If a police officer obtains consent to search from someone who lacks “actual” authority to grant it, the consent is still valid under the 4th Amendment, provided the officer REASONABLY BELIEVED that the consenting party had “actual” authority
-e.g. girlfriend with key to apt lets cop in

D) SHARED PREMISES:

(1) when adults share a residence, any resident can consent to a search of common areas within it
(2) However, if co-tenants disagree regarding consent to search common areas, the objecting party prevails, as to areas over which they share dominion and control

Question 6

Automobile Exception (4th Exception for warrantless searches)

Answer 6

A) JUSTIFICATIONS: vehicles’ ready mobility and individuals’ lesser expectation of privacy in vehicles

B) STANDARD: Police officers must have PROBABLE CAUSE to believe that contraband or evidence of crime will be found in the vehicle

C) WHERE CAN POLICE OFFICER SEARCH? the ENTIRE vehicle and they may open any package, luggage, or other container that may reasonably contain the item(s) for which there was probable cause to search

D) Traffic Stops and Auto Searches: if routine traffic stop, cop doesn’t need probable cause AT THE TIME the car is pulled over, provided he acquired it BEFORE initiating the search (e.g. routine stop then he runs the license and info says car has been linked to drug trafficking, he may then search)

Question 7

Plain View (5th Exception for Warrantless Searches)

Answer 7

Three requirements for seizure of an item in plain view: (PIC)

(1) lawful access to the place from which the item can be PLAINLY SEEN
(2) lawful access to the ITEM itself; and
(3) the CRIMINALITY of the item must be immediately apparent

Question 8

Inventory Searches (6th exception to warrantless searches)

Answer 8

Inventory Searches most commonly occur in 2 contexts:

(1) Arrestees: when they are booked in jail
(2) Vehicles: when they are impounded

RCG - “Recover Contraband Gently”

For inventory searches to be constitutional:

(1) regulations governing them must be REASONABLE IN SCOPE
(2) search itself must COMPLY with those regulations
(3) the search must be conducted in GOOD FAITH; that is, the search must be motivated SOLELY by the need to safeguard the owner’s possession and/or to ensure officer safety

Question 9

SPECIAL NEEDS (7th exception to warrantless searches) - i.e. “special needs” of law enforcement, government employers and school officials beyond a general interest in law enforcement

Answer 9

RANDOM DRUG TESTING - allowed for Railroad employees, customs agents, and public school children in extra curricular activities

PAROLEES - warrantless, suspicionless searches permissible as condition of parole

SCHOOL SEARCHES - permissible to investigate violations of school rules, provided search is (i) reasonable at its inception and (ii) is not “excessively intrusive”

BORDER SEARCHES - neither citizens nor non-citizens have any 4th Amendment rights at the border, with respect to routine searches of persons and effects

Question 10

RANDOM DRUG TESTING

SPECIAL NEEDS (7th exception continued) -

Answer 10

A) Random Drug Testing (most important**)
US Sup CT has approved warrantless, random drug tests in a variety of contexts including:
(1) RAILROAD EMPLOYEES, following an impact accident;
(2) CUSTOMS AGENTS responsible for interdiction; and
(3) Public School Children who participate in ANY extracurricular activities

HOWEVER, suspicionless drug tests are not permitted where their primary purpose is to gather criminal evidence for general use by law enforcement (e.g. Indy drug “checkpoint” randomly stopped vehicles searched for drugs)

Question 11

PAROLEES

SPECIAL NEEDS (7th Exception continued) -

Answer 11

Warrantless, suspicionless searches of parolee and his home are permissible as a condition of parole

Question 12

SCHOOL SEARCHES

SPECIAL NEEDS (7th exception continued)

Answer 12

Warrantless searches of persons and the “effects” (e.g. purses and backpacks) of public schoolchildren are permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds, provided the search is REASONABLE AT ITS INCEPTION and is NOT EXCESSIVELY INTRUSIVE, in light of the age and sex of the student and the nature of the infraction

e.g. 13-yr-old girl strip-searched for advil was EXCESSIVELY INTRUSIVE in relation to the potential danger

Question 13

BORDER SEARCHES

SPECIAL NEEDS (7th exception to warrantless searches continued)

Answer 13

Border Searches: neither citizens nor non-citizens have any 4th amendment rights at the border, with respect to routine searches of persons and effects

Question 14

TERRY “STOP AND FRISK” (8th exception for warrantless searches)

TERRY STOPS

Answer 14

A “Terry Stop” is a brief detention or “seizure” for purpose of investigating suspicious conduct

NOTE: terry stops can take place anywhere, e.g. on the street, in a car, in an airport concourse or on a bus

quick note:
Terry STOP = suspicious conduct (stop for suspicious)
Terry FRISK = WEAPONS (think Frisk for Firearms)

Question 15

When are you “seized” for 4th amendment purposes?

Answer 15

An individual is “seized” for 4th amendment purposes when, based on the TOTALITY OF THE CIRCUMSTANCES,

(i) a reasonable person would not feel FREE TO LEAVE, OR
(ii) to decline an officer’s request to ANSWER QUESTIONS

considerations when evaluating whether “seizure” has taken place

(i) whether an officer BRANDISHES a weapon
(ii) the officer’s TONE and DEMEANOR
(iii) whether individual was told she had the right to refuse CONSENT

Question 16

Police Pursuit and “Seizure”

Answer 16

When being pursued by a police officer, an individual is seized ONLY if he submits to the officer’s authority by stopping or if the officer physically restrains him (e.g. by tackling him)

in NY***: Police Pursuit is a “SEIZURE” in and of itself

Question 17

Traffic Stops and “Seizure” under TERRY STOP - three important principles

Answer 17

(a) In a traffic stop, both the driver AND the passengers are seized, so EITHER can challenge the legality of the stop
(b) In a traffic stop, the officer may, in her discretion, order both the driver and the passenger out of the car

(c) Dog sniffs at traffic stops are permissible provided the “sniff” does not PROLONG the stop UNREASONABLY
- e.g. permissible for K-9 officers to sniff the exterior of car during traffic stop while computer is checking the driver’s license and registration (remember “odors” not protected area or item)

Question 18

Terry FRISK

Answer 18

A TERRY FRISK is a pat-down of the body and outer clothing FOR WEAPONS that is justified by an OFFICER’S BELIEF that a suspect is armed and dangerous

What can you seize in a TERRY FRISK?

(a) If, during a TERRY FRISK, an officer finds something she reasonably believes to be a weapon, it can always be seized
(b) If, instead, officer finds something she recognizes as CONTRABAND, WITHOUT MANIPULATING THE OBJECT, she can seize it as well

***in NY, officers can seize an item ONLY IF it reasonably appears to be a WEAPON (can’t seize contraband)

Question 19

Terry CAR FRISKS

Answer 19

When conducting a traffic stop, if an officer believes that a suspect is dangerous, he MAY search the PASSENGER CABIN of the suspect’s vehicle, limited to those areas in which a weapon may be PLACED or HIDDEN

Question 20

“Protective Sweeps”

TERRY FRISKS

Answer 20

When making an in-home arrest, police may “sweep” the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety

Question 21

What “Evidentiary Standard” applies to Terry Stops and Frisks?

Answer 21

REASONABLE SUSPICION, which is LESS THAN PROBABLE CAUSE

How does this standard apply in TERRY STOPS?

• – it requires SPECIFIC AND ARTICULABLE FACTS that inform an officer’s belief that CRIMINAL ACTIVITY IS PRESENT
• – (i) an officer’s subjective intent is IRRELEVANT in evaluating the legality of the stop; the 4th Amendment is concerned solely with its OBJECTIVE reasonableness

How does this standard apply to a TERRY FRISK?
It requires SPECIFIC AND ARTICULABLE FACTS that suggest a suspect is ARMED AND DANGEROUS
– remember: a Terry Frisk is justified by concern for officer safety ONLY; it is NOT a general search for criminal evidence

NOTE: an INFORMANTS’ tips can satisfy this standard, provided the tip contains sufficient predictive information, corroborated by the police, to establish the informant’s reliability

Question 22

What Evidentiary Standards apply in “Protective Sweeps”

TERRY FRISKS

Answer 22

(a) Officers may “sweep” the area IMMEDIATELY ADJOINING the place of arrest based on the risk that the house harbors a person who poses a danger to those on the arrest scene
(b) to JUSTIFY a “sweep” of more remote areas, the arresting officers must have additional facts sufficient to allow a REASONABLY PRUDENT officer to conclude that an individual who may threaten officer safety is present IN THE AREA SWEPT