Fourth Amendment - Exceptions to the Warrant Requirement Flashcards
Search Incident to Arrest
Incident to a constitutional arrest, the police may search the person and areas into which they might reach to obtain weapons or destroy evidence.
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”
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.
Constitutional Arrest Requirement
if an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.
Geographic Scope
The person and the areas within the person’s wingspan.
Automobiles
The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at hte time of the search:
- the arrestee is unsecured and still may gain access to the interior of the vehicle, or
- the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle (Gant Rule)
Technological Searches
In assessing the validity of a search incident to arrest involving things that did not exist when the 4th amendment was adopted, the court will balance 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.
DUI Breath Test v. Blood Test
Contemporaneous with an arrest for intoxicated driving, police may administer a warrantless breath test to determine the arrestee’s alcohol levels but may not administer a warrantless blood test.
Physical Attributes of Cell Phone
police may examine the physical attributes of a person’s cell phone upon arrest. However, they 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
Police may make an inventory search of the arrestee’s belongings pursuant to established department procedure.
Inventory search following procedure may search containers.
Similarly, police may make an inventory search of an impounded vehicle.
Valid Warrantless Searches
Search Incident to Arrest
Search Incident to Incarceration (inventory search)
Automobile Exception
Plain View
Consent
Stop and Frisk
Hot Pursuit, Evanscent Evidence, Emergency Aid.
Automobile Exception
If the police have pC to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had PC to search.
If the vehicle is parked within the curtilage of a suspect’s home, the police may not search the vehicle without a warrant.
NOTE: if police have PC to believe that an automobile itself is contraband, they may seize it form a public place without a warrant.
Automobile Exception: Passenger’s Belongings
The search may extend to packages belong to a passenger; it is not limited to a driver’s belongings.
Automobile Exception: Containers Placed in Vehicle
If the police have probable cause only to search a container in a vehicle, they may search only the container, not other parts of the vehicle.
Automobile Exception: PC
The PC necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped, but the PC must arise before anything or anybody is searched.
Plain View Exception
The police may make a warrantless seizure when they:
- are legitimately on the premises,
- discover evidence, fruits or instrumentalities of crime, or contraband,
- see such evidence in plain view, and
- have PC to believe that the item is evidence, contraband, or a fruit or instrumentality of crime. NOTE - must be immediately apparent
Consent Exception
a warrantless search is valid if the police have a voluntary consent. 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.
Authority to Consent
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.
Co-occupant can’t give valid consent if other objects and is present.
If objected is removed, police may act on consent of remaining occupant.
Stop and Frisk Exception (Terry Stop)
A Terry stop is a brief detention for the purpose of investigating suspicious conduct.
A Terry frisk is a pat down of the outer clothing and body to check for weapons.
Stop and Frisk Exception (Terry Stop): Standards
An officer may stop a person without PC for arrest if they have an articulable and reasonable suspicion of criminal activity.
Officer may require the detainee to state their name, and if the officer also reasonably believes that the person may be armed and presently dangerous, the officer may conduct a protective frisk.
Stop and Frisk Exception (Terry Stop): Scope of Intrusion
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.
Stop and Frisk Exception (Terry Stop): Admissibility of Evidence
During a patdown, an officer may reach into a 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 admissible as evidence.
If plain feel is manipulated, it is not admissible.
Stop and Frisk Exception (Terry Stop): PC Arises
If PC arises during an investigatory stop, the detention can become an arrest and the officer can then conduct a full search incident to that arrest.
Stop and Frisk Exception (Terry Stop): Automobile Stops
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:
- conduct a frisk of the suspected person, and
- search the vehicle, so long as it is limited to the ares in which weapon may be placed.
Hot Pursuit
Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling.
If the fleeing person is suspected of a misdemeanor, their flight does not always justify a warrantless entry into a home.
The officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies a warrantless entry.
RULE: if the police are not within 15 minutes behind the fleeing felon, it is not a hot pursuit that falls under the exception.
NOTE: if the police are truly in hot pursuit, they can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible.
Evanescent Evidence
Evidence that might disappear quickly if the police took the time to get a warrant.