Exceptions to the Warrant Requirement

Question 1

The Three Types of Exigent Circumstances

Answer 1

1) Evanescent Evidence
2) Hot Pursuit
3) Emergency Aid

Question 1

Overview of Warrantless Searches and Exceptions

Answer 1

All warrantless searches are unconstitutional unless they fit into one of the recognized exceptions to the warrant requirement

ESCAPIST - The different exceptions

E-Exigent Circumstances
S-Search Incident to Arrest
C-Consent
A-Automobile
P-Plain View
I-Inventory
S-Special Needs
T-Terry Stop and Frisk

Question 2

Evanescent Evidence (Exigent Circumstances)

Answer 2

Evanescent evidence is evidence that might dissipate or disappear quickly if the police took time to get a warrant

However, the natural dissipation of alcohol in the bloodstream does not automatically create an exigency sufficient to justify a warrantless blood alcohol content test

Question 3

Hot Pursuit (Exigent Circumstances)

Answer 3

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even enter the hold of the suspect or a third party.

During the hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible.

If the fleeing person is suspected of a misdemeanor, their flight does not always justify a warrantless entry. The officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies a warrantless entry.

Question 4

Emergency Aid (Exigent Circumstances)

Answer 4

A police officer may enter premises without a warrant if there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury

NOTE– the injury does not need to be life threatening

Question 5

Search Incident to Arrest

Answer 5

Incident to a constitutional arrest, the police may search the person and areas into which they might reach to obtain weapons or destroy evidence (wingspan)

Question 6

Constitutional Arrest Requirement (Search Incident to Arrest)

Answer 6

The arrest (custodial arrest) must be based on probable cause to believe a law has been violated and must meet the other constitutional requirements.

If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.

Question 7

Timing (Search Incident to Arrest)

Answer 7

The search must be contemporaneous in time and place with the arrest (doesn’t necessarily mean simultaneously)

Question 8

Geographic Scope (Search Incident to Arrest)

Answer 8

The scope of the search includes the arrested person and the areas within the arrestee’s wingspan, which includes the body, clothing, and any containers within the arrestee’s immediate control without regard to the offense for which the arrest was made.

The police may also conduct a protective sweep of the area if they believes accomplices may be present.

Question 9

Contemporary Developments (Search Incident to Arrest)

Answer 9

With respect to things that did not exist when the 4th amendment was adopted, the supreme court balances the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which the search is needed to promote legitimate governmental interests.

Cell Phones – May not (without a warrant) search digital data on the cell phone of an arrestee, but they may examine the phone’s physical aspects to ensure that it will not be used as a weapon

DNA Evidence – Police may lawfully take a DNA sample by swabbing the cheek of an individual arrested for a serious offense

Sobriety Tests – Incident to arrests for drunk driving, the four amendment permits warrantless breath tests, but not blood tests

Question 10

Automobiles Searched Incident to Arrest

Answer 10

The police may conduct a search of an automobile incident to arrest if the arrestee is unsecured and still may gain access to the interior of the vehicle.

Once the officer has secured an arrestee, the officer can search the arrestee’s vehicle only if the officer has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made.

SCOPE – If the requirements are satisfied, the police may search the passenger cabin, including closed container, but not the trunk.

Question 11

Consent

Answer 11

A warrantless search is valid if the police have voluntary consent. For consent to be valid, police officers do not need to tell individuals that they have the right to refuse consent.

The scope of the search may be limited by the scope of the consent, but generally consent to search extends to all areas for which a reasonable officer would believe permission to search was granted.

Question 12

Apparent Authority to Consent

Answer 12

If a police officer obtains consent to search from someone who lacks actual authority to grant it, the consent is still valid under the fourth amendment, provided the officer reasonably believed the consenting party has actual authority.

Think of the GF with key case

Question 13

Shared Premises (Consent)

Answer 13

When adults share a residence, any resident can consent to a search of the common areas within it.

If co-occupants are present on the premises and object to the search, the objecting party prevails as to areas over which they share dominion and control.

However, if an objecting co-occupant is removed for reasons unrelated to the refusal, the police may rely on the consent of the remaining, consenting co-occupant.

Question 14

Automobile Exception

Answer 14

If the police have probable cause to believe that a 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 probable cause to search.

Justification - vehicles are readily moveable and individuals have a lesser expectation of privacy in them

Question 15

Scope of Search (Automobile Exception)

Answer 15

The police may search the entire vehicle, and may open any container that may reasonably contain the items for which the probable cause to search arose.

The search may extend to packages belonging to a passenger, it is not limited to the driver’s belongings

HOWEVER – If police have probable cause only to search a container in the vehicle, they may search only that container, not the other parts of the vehicle.

Question 16

Traffic Stops (Automobile Exception)

Answer 16

For the search to be lawful, an officer does not need probable cause for the search at the time the car is pulled over, provided the officer acquires it before initiating the search.

Question 17

Plain View

Answer 17

The police may make a warrantless seizure of an item in plain view if:
1) the police has lawful access to the place from which the item can be plainly seen;
2) the police have lawful access to the item itself; and
3) The criminality of the item is immediately apparent

Question 18

When do Inventory Searches commonly occur

Answer 18

1) Arrestees - police may make an inventory search of an arrestee’s belongings when booked pursuant to established department procedure

2) Impounded Vehicle - Police may make an inventory search of an impounded Vehicle

Question 19

Inventory Searches Constitutionality

Answer 19

Inventory Searches are constitutional, provided:

1) the regulations governing them are reasonable in scope
2) the search itself complies with those regulations
3) the search is conducted in good faith - it is motivated solely by the need to safeguard the owner’s possessions and/or ensure officer safety

NOTE - an officer’s subjective intent mattes in this situation

Question 20

Terry Stop

Answer 20

A Terry stop is a brief detention or seizure for the purpose of investigating suspicious conduct. They can take place anywhere.

Question 21

When a person seized under the 4th amendment (Terry Stops)

Answer 21

An individual is seized under the fourth amendment when, based on the totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer’s request to answer questions.

When determining, the court will consider:
1) whether the officer brandishes a weapon
2) the officer’s tone and demeanor when interacting with the person questioned
3) whether the individual was told they had a right to refuse consent

Question 22

Police Pursuit and Seizure (Terry Stops)

Answer 22

When being pursued by police, an individual is seized only if the individual submits to the officer’s authority by stopping or if the officer physically retrains them.

Question 23

Traffic Stops (Terry)

Answer 23

1) in a traffic stop, both the driver and the passengers are seized, such that either can challenge the legality of the stop

2) in a traffic stop, the officer may, in their discretion, order both the driver and passengers out of the car

3) Dog sniffs at traffic stops are permissible provided the sniff does not prolong the stop

Question 24

Terry Frisk

Answer 24

A Terry frisk is a putdown of the outer clothing and body to check for weapons that is justified by an officer’s belief that a suspect is armed and dangerous

Question 25

What can be Seized in a Terry Frisk

Answer 25

If, during a terry frisk, an officer finds something the officer reasonably believes to be a weapon, it can always be seized.

If the officer finds something they recognize as contraband, without manipulating the object, the officer can seize it as well.

Question 26

Car Frisks

Answer 26

When conducting a traffic stop, if an officer believes that a suspect is dangerous, the officer may search the passenger cabin of the suspect’s vehicle, limited to those areas in which a weapon may be placed or hidden. (the officer may also conduct a frisk of the person)

Question 27

Protective Sweeps

Answer 27

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

Without probable cause or reasonable suspicion, officers have authority to look in areas adjoining the place of arrest from which an attack could be immediately launched.

To justify a sweep of more remote areas, the arresting officers must have additional facts sufficient to allow them to conclude that an individual who may threaten their safety is present in the sweep area.

Question 28

Evidentiary Standard for Stop and Frisk

Answer 28

The evidentiary standard is reasonable suspicion (less than probable cause)

Stops – There must be specific and articulable facts that inform the officer’s belief that criminal activity is present. An officer’s subjective intent is irrelevant in evaluating the legality of the stop.

Frisks – There must be specific and articulable facts that suggest that a suspect is armed and dangerous

Informants – an informant tip may satisfy the reasonable suspicion standard provided the tip contains sufficient predictive information, corroborated by police, to establish the informant’s credibility.

Question 29

Special Needs Searches

Answer 29

Special needs searches are those that meet the special needs of law enforcement, governmental employers, and school officials beyond a general interest in law enforcement. They are an exception to the warrant requirement.

The special needs doctrine does not include law enforcement programs or practices whose primary purpose is to gather criminal evidence for general use by law enforcement.

Question 30

Drug Testing (Special Needs)

Answer 30

The Supreme Court has approved warrantless, suspiciousness drug tests in the following contexts:

1) railroad employees following an impact accident
2) customs agents responsible for drug interdiction
3) public school children who participate in any extracurricular activities

Question 31

Parolees (Special Needs)

Answer 31

Warrantless, suspicionless searches of parolees and their homes are permissible as a condition of parole

Question 32

School Searched (Special Needs)

Answer 32

A warrant or probable cause is not required for public school officials to search students or their possessions to investigate violations of school rules. Only reasonable grounds for the search are necessary.

A school search will be held to reasonable only if:
1) if offers a moderate chance of finding evidence of wrongdoing;
2) the measures adopted to carry out the search are reasonably related to the objectives of the search; and
3) the search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction

Question 33

Government Employees (Special Needs)

Answer 33

Warrantless searches of government employees’ desks and file cabinets are permissible, provided the searches are reasonable at their inception

Question 34

Administrative Searches (Special Needs)

Answer 34

Warrantless, administrative searches to seize spoiled or contaminated food or to search a business within a highly regulated industry are permissible

Question 35

Border Searches (Special Needs)

Answer 35

Neither citizens nor non-citizens have any fourth amendment rights at the border, with respect to routine searches of persons and effects.