Exceptions to the Warrant Requirement

Question 1

what is the search incident to arrest exception to the warrant requirement?

Answer 1

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

Question 2

when does the search incident to arrest exception allow a protective sweep of the area?

Answer 2

when police believe accomplices may be present

Question 3

how close in time and place must the search be to the arrest?

Answer 3

contemporaneous in both time and place (but need not simultaneous with respect to auto searches)

Question 4

under what circumstances can police search the passenger compartment of a car during a search incident to arrest? (2)

Answer 4

only if, at the time of the search, either…
1) arrestee is unsecured and still may gain access to the interior of the vehicle OR
2) police reasonably believe that evidence of the offense FOR WHICH THE PERSON WAS ARRESTED may be found in the vehicle

Question 5

if search returned something different than what gave rise for the officer to search, will that evidence be excluded?

Answer 5

no (so long as the search is valid, items/contraband will be admissible)

Question 6

is a warrantless breath test incident to a DUI arrest permissible?

Answer 6

yes

Question 7

is a warrantless blood draw incident to DUI arrest permissible?

Answer 7

no

Question 8

what parts of a phone may be searched incident to arrest?

Answer 8

only the PHYSICAL attributes of the phone (not data)
**includes phone case insert, middle of a flip phone, etc

Question 9

what is the automobile exception to the warrant requirement?

Answer 9

if police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the WHOLE vehicle and any container that might reasonable CONTAIN the item for which they had probable cause to search
**NOTE = this includes the trunk (unlike with search incident to arrest/passenger compartment)

Question 10

can police conduct a warrantless search of a vehicle parked in the curtilage of the person’s home?

Answer 10

no

Question 11

when can police seize a vehicle from a public place without a warrant?

Answer 11

when they have probable cause to believe that the vehicle itself is contraband

Question 12

can police tow a vehicle to the station and search it later without a warrant?

Answer 12

only if the warrantless search of the vehicle is valid

Question 13

are searches under the automobile exception limited to the driver’s belongings only?

Answer 13

no (it also may include packages belonging to a passenger)

Question 14

what parts of a vehicle can police search when they only have PC to search one container in that vehicle?

Answer 14

ONLY that one container (not other parts of the vehicle)

Question 15

when must the PC necessary to justify a search under the auto exception arise to be valid?

Answer 15

can arise AFTER the car is stopped BUT MUST arise BEFORE anyone or anything is searched

Question 16

what is the plain view exception to the warrant requirement?

Answer 16

police may conduct a warrantless seizure when they…
1) are legitimately on the premises,
2) discover evidence, fruits, or instrumentalities of crime/contraband,
3) see such evidence in plain view, and
4) it is immediately apparent that the item is evidence, contraband, fruit, instrumentality of a crime

Question 17

is knowledge of the right to withhold consent a prerequisite to establish voluntary consent to a warrantless search?

Answer 17

no

Question 18

what is the scope of a warrantless search pursuant to consent?

Answer 18

scope of the search is limited to the scope of the consent given, but generally extends to all areas which a reasonable person under the circumstances would believe it extends

Question 19

who may consent to a search?

Answer 19

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/occupants)

Question 20

when can an occupant NOT give valid consent to a search?

Answer 20

when a co-occupant is present and objects to the search AND the search is directed against the co-occupant

Question 21

when can police conduct a search via consent despite the objections of a co-occupant?

Answer 21

when the co-occupant has been removed for a reason UNRELATED to their refusal and the remaining occupant consents to the search