CrimP 4 - Exc' to warr req Flashcards
FOURTH AMENDMENT—EXCEPTIONS TO THE WARRANT REQUIREMENT
All WARANTLESS searches conducted by law enforcement officers are unconstitutional UNLESS they fit into one of six recognized exceptions to the warrant requirement.
Warrant Exception: Search incident to Constitutioanl arrest (SILA)
• Police can search after valid arrest
• Police can make protective sweep of area.
• Search must be CONTEMPORANEOUS in time and place with the arrest.
Incident to a constitutional arrest (that is, one based on probable cause to believe a law has been violated and that meets other constitutional requirements), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence.
The police may also make a protective sweep of the area if they believe accomplices may be present.
The search must be contemporaneous in time and place with the arrest, but, at least with respect to searches of automobiles, the term “contemporaneous” does not necessarily mean “simultaneous.”
Thus, for example, the police may search the interior of an automobile after securing a recent occupant of the automobile in a squad car if they have reason to believe that the vehicle contains evidence of the crime for which the recent occupant was arrested. (below.)
Constitutional Arrest Requirement
If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.
Geographic scope
Cops can search person AND the areas within the persons WINGSPAN can be searched.
SILA: Automobiles
Police may search PASSENGER COMPARTMENT of an automobile INCIDENT TO ARREST, ONLY IF:
- Arrestee is UNSECURED, and may still gain access to the interior of the vehicle, OR…
- The police REASONABLY believe that evidence of offense FOR WHICH the person was arrested may be found in the vehicle.
***Remember, it is OR - even if the suspect was handcuffed and in the cruiser, can still search if reasonbly believe that E of offesne for arrest could be found in the vehicle.
** The type of Evidence found does NOT matter, so long as the search was valid. We do not care if the e found was different than what gave rise for the officer to search.
Police CANNOT search the TRUNK incident to arrest.
Technological Searches
In assessing the validity of a search incident to arrest involving things that did not exist when the Fourth Amendment was adopted (for example, cell phones, blood alcohol tests), Court will balance the degree to which the SILA intrudes upon a person’s privacy against the degree to which the search is needed to promote legitamite interests.
- Warantless BREATH TEST permitted, BUT NOT BLOOD TEST.
- Physical attributes of cell phone may be searched but not data.
a. DUI Arrest Justifies Breath (But Not Blood) Test
Contemporaneous with an arrest for intoxicated driving, police officers may administer a warrantless breath test to determine the arrestee’s alcohol levels but may not administer a warrantless blood test.
Rationale: A breath test is not very intrusive and leaves no lasting sample with the government, while a blood test requires piercing the skin and leaves the government with a genetic sample.
As a corollary, violation of an implied consent law (that is, a law providing that by driving on the roads a driver impliedly consents to a blood test if stopped for intoxicated driving) can be punished civilly (for example, suspension of license) but not criminally.
b. Physical Attributes of Cell Phone May Be Searched But Not Data
Because of their strong interest in assuring that arrestees do not have weapons or contraband, police officers my examine the physical attributes of a person’s cell phone upon arrest. However, officers may not examine the data on a cell phone without a warrant since it cannot be used as a weapon.
b. Physical Attributes of Cell Phone May Be Searched But Not Data
Because of their strong interest in assuring that arrestees do not have weapons or contraband, police officers my examine the physical attributes of a person’s cell phone upon arrest. However, officers may not examine the data on a cell phone without a warrant since it cannot be used as a weapon.
Search Incident to Incarceration or Impoundment
At the police station, the police may make an INVENTORY search of the arrestee’s belongings pursuant to established department procedure.
Similarly, the police may make an inventory search of an impounded vehicle.
Warrant Exception: AUTOMOBILE EXCEPTION
If police have probable caus to believe that vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the ENTIRE vehicle and any container that might REASONABLY CONTAIN the item for which they had PC to search.
If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later.
However, if the vehicle is parked within the curtilage (for example, the driveway) of a suspect’s home, the police may not search the vehicle without a warrant.
Note: If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant.
Note: the police have fairly broad authority to search a vehicle depending on what they are looking for. If there is probable cause to search the vehicle, the police can search the entire car and anything in it that might contain the evidence. Thus, if they are looking for evidence of illegal drugs, they can look in almost anything in the car, but if they are looking for undocumented aliens, they cannot look inside a small suitcase.
Passenger’s Belongings
The search may extend to packages belonging to a passenger; it is not limited to the driver’s belongings.
Containers Placed in Vehicle
If the police have probable cause only to search a container in a vehicle (for example, luggage recently placed in the trunk), they may search only the container, not other parts of the vehicle.
Automobile exception: When can, and must, the Probable Cause to search the car arise?
PC necessary to justify search of car can ARISe AFTER car is stopped.
BUT, the probable cause must arise before anything or anybody is searched.
If an officer pulls over a car and sees something in plain view,
they have PC to search.
Warrant Exception: PLAIN VIEW
The police may make a warrantless seizure when they:
• Are LEGITIMIATELY PRESENT on the premises (legitamtiely present when viewing the items).
• Discover evidence, fruits or instrumentalities of crime, or contraband
• See such evidence in PLAIN VIEW; and
• Have probable cause to believe (that is, it must be IMMEDIATELY APPARENT) that the item is evidence, contraband, or a fruit or instrumentality of crime.
For this exception, be sure the police officer is legiti- mately on the premises (that is, where they have a lawful right to be), such as on a public sidewalk or in a home executing a warrant. If the officer is, anything the officer sees (or smells, hears, etc.) in plain view is admissible. Thus, if while execut- ing a search warrant for a handgun, the officer opens a small drawer where the gun could be and sees heroin, the heroin is admissible since it was in plain view of an officer who had a right to look there.
Warrant Exception: CONSENT
Warantless search is valid if police have VOLUNTARY CONSENT.
Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent.
SCOPE: The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.
Police saying they have a warrant….
NEGATES consent.
Authority to Consent
• Person with APPARENT equal right to use or occupy property may consent. .
• BUT, occupant CANNOT give valid consent when co-occupant is present and OBJECTS.
•If co-occupant is removed for unrelated reason, police may act on consent of remaining occupant.
Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants.
- Be careful to check whether the person has reasonably apparent authority to consent. For example, a homeowner parent can certainly consent to a search of the home’s kitchen, and probably to a search of their son’s room unless the facts strongly indicate that the parent does not have a right to go in the room (for example, always locked, only defendant has key, etc.). Note: The Supreme Court has not yet decided whether a parent may consent over the objection of their child.
However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant.
If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (for example, a lawful arrest), the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent.
Warrant Exception: STOP AND FRISK
Terry STOP: Breif detention for purpose of Investigating suspicious conduct.
A police officer may stop a person without probable cause for arrest if they have an articulable and reasonable suspicion (RS) of criminal activity. The officer may require the detainee to state their name.
Terry FRISK: Pat down of outer clothing and body to check for weapons.
If the officer also reasonably believes that the person may be ARMED and presently dangerous, the officer may conduct a protective frisk.
A stop is not an arrest, and thus an officer need not have probable cause. However, the officer must have a reason to believe that criminal activity is afoot.
Seeing a person pace in front of a jewelry store might justify a stop. A frisk will be justified only if the officer reasonably thinks that the suspect has a weapon.
Scope of Terry frisk
The scope of the frisk is generally limited to a patdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing.
Officer may seize any item that officer reasonably belives, based ON PLAIN FEEL, is weapon OR contraband.
***Watch out for “MANIPULATED” - means INVALID.
During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband, and such items are admis- sible as evidence.
Note: If probable cause arises during an investigatory stop, the detention can become an arrest and the officer can then conduct a full search incident to that arrest
While on patrol in a high crime area, police officers notice a man standing on the corner wearing a red bandana and red shoes (typical colors of the Bloods street gang). The officers pull over and observe the man for fifteen minutes and the man never moves from the street corner. Suspecting him of being a drug dealer, the police approach him and say they would like to ask him a few questions. The man says he needs to leave the area and refuses.
Is this a VALID TERRY STOP?
NO, not enough for Reasonable Suspicion
If probable cause arises during an investigatory stop….
If probable cause arises during an investigatory stop, the detention can become an arrest and the officer can then conduct a full search incident to that arrest.
Automobile stops (Terry stop and frisk of a vehicle).
If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may:
(1) conduct a frisk of the suspected person, and
(2) search the vehicle, so long as it is limited to the areas in which weapon may be placed.
Exception to warrant: HOT PURSUIT, EVANESCENT EVIDENCE, AND EMERGENCY AID
Evanescent evidence: Evidence that might DISAPPEAR quickly if police took time to get warrant (fleeting evidence).
For example, a police officer can scrape under a suspect’s fingernails without getting a warrant because if the officer took the time to get a warrant the defendant might go wash their hands.
But note: In 2013, the Supreme Court held that officers need to get a warrant before taking a blood sample for a DUI arrest (if it is practical to do so).
Blood sample for a DUI arrest
Supreme Court held that officers need to get a warrant before taking a blood sample for a DUI arrest (if it is practical to do so).
For example, a police officer can scrape under a suspect’s fingernails without getting a warrant because if the officer took the time to get a warrant the defendant might go wash their hands.
BUT it could be impracticale.
