Fourth Amendment: Evidentiary Search and Seizure; Exceptions to Warrant Requirement; Search Incident to Arrest

Question 1

What are the 6 exceptions to warrant requirement for searches?

Answer 1

1. search incident to arrest
2. automobile exception
3. plain view
4. consent
5. stop and frisk
6. hot pursuit, exigent circumstances, Evanescent Evidence, and Emergency aid exceptions

Question 2

What are the rules re: search incident to arrest?

Answer 2

1. Arrest must be CONSTITUTIONAL
2. search must be CONTEMPORANEOUS in time and place w arrest (but see special rule for automobiles)

SEE also –> rules for scope

Question 3

What is the SCOPE for a “search incident to arrest” ?

Answer 3

Police may search:

1. person;
2. areas into which he might reach to OBTAIN WEAPONS or DESTROY evidence;
3. police may make PROTECTIVE SWEEP of the area if they believe accomplices may be present

SEE also, scope for automobile search incident to arrest

Question 4

What is the RULE for and SCOPE of a “search of automobile incident to arrest” ?

Answer 4

Police may search PASSENGER COMPARTMENT of automobile incident to arrest, IF:

1. arrestee is UNSECURED and still may gain access to the interior of vehicle; OR
2. police REASONABLY BELIEVE evidence of the offense for which he was arrested may be found inside vehicle

Question 5

What is the effect of items seized in search incident to arrest IF the underlying arrest is found unconstitutional?

Answer 5

If underlying arrest is unconstitutional, it’s excluded

Question 6

With regards to search of an automobile incident to arrest, what is the special rule re: the requirement of a “contemporaneous search”?

Answer 6

In general, search must be contemporaneous with arrest.

HOWEVER –> at least with regards to automobiles, “contemporaneous” does not mean “simultaneous”

THUS –> police MAY search passenger compartment of automobile incident to arrest IF they reasonably believe it contains evidence of crime, even after suspect is secured in squad car

Question 7

What is the rule w/ regards to “technical searches” incident to arrest?

Answer 7

In assessing the validity of search incident to arrest involving things that did not exist when 4th amendment was adopted, court will BALANCE:

1. degree to which SEARCH INTRUDES on privacy; AGAINST
2. degree to which search is NEEDED to promote legitimate government interests

Question 8

What is the rule with regards to search incident to arrest for DUI?

Answer 8

OK –> warrantless breath test

NOT ok –> warrantless blood test

REASONING –> blood test requires piercing of skin, more intrusive, leaves lasting sample w government. Breath test is less intrusive

NOTE –> violation of an IMPLIED CONSENT law (ie…law providing that anyone driving on road impliedly consents to blood test for dui arrest) CAN be punished civilly, but not criminally

Question 9

What issues the rule with regards to search incident to incarceration or impoundment?

Answer 9

At police station –> police may make an inventory search of arrestee’s belongings pursuant to established station procedure

SIMILARLY –> police may making inventory search of impounded vehicle

Question 10

What is the rule w regards to DNA swab?

Answer 10

Police may take a DNA swab, this is a reasonable search, IF:

1. at police station
2. they have probable cause to hold for a serious offense