Fourth Amendment - Exceptions to the Warrant Requirement

Question 1

Search Incident to Arrest

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.

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.

Question 2

Constitutional Arrest Requirement

Answer 2

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

Question 3

Geographic Scope

Answer 3

The person and the areas within the person’s wingspan.

Question 4

Automobiles

Answer 4

The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at hte time of the search:

1. the arrestee is unsecured and still may gain access to the interior of the vehicle, or
2. the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle (Gant Rule)

Question 5

Technological Searches

Answer 5

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.

Question 6

DUI Breath Test v. Blood Test

Answer 6

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.

Question 7

Physical Attributes of Cell Phone

Answer 7

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.

Question 8

Search Incident to Incarceration or Impoundment

Answer 8

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.

Question 9

Valid Warrantless Searches

Answer 9

Search Incident to Arrest
Search Incident to Incarceration (inventory search)
Automobile Exception
Plain View
Consent
Stop and Frisk
Hot Pursuit, Evanscent Evidence, Emergency Aid.

Question 10

Automobile Exception

Answer 10

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.

Question 11

Automobile Exception: Passenger’s Belongings

Answer 11

The search may extend to packages belong to a passenger; it is not limited to a driver’s belongings.

Question 12

Automobile Exception: Containers Placed in Vehicle

Answer 12

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.

Question 13

Automobile Exception: PC

Answer 13

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.

Question 14

Plain View Exception

Answer 14

The police may make a warrantless seizure when they:

1. are legitimately on the premises,
2. discover evidence, fruits or instrumentalities of crime, or contraband,
3. see such evidence in plain view, and
4. have PC to believe that the item is evidence, contraband, or a fruit or instrumentality of crime. NOTE - must be immediately apparent

Question 15

Consent Exception

Answer 15

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.

Question 16

Authority to Consent

Answer 16

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.

Question 17

Stop and Frisk Exception (Terry Stop)

Answer 17

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.

Question 18

Stop and Frisk Exception (Terry Stop): Standards

Answer 18

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.

Question 19

Stop and Frisk Exception (Terry Stop): Scope of Intrusion

Answer 19

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.

Question 20

Stop and Frisk Exception (Terry Stop): Admissibility of Evidence

Answer 20

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.

Question 21

Stop and Frisk Exception (Terry Stop): PC Arises

Answer 21

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.

Question 22

Stop and Frisk Exception (Terry Stop): Automobile Stops

Answer 22

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 ares in which weapon may be placed.

Question 23

Hot Pursuit

Answer 23

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.

Question 24

Evanescent Evidence

Answer 24

Evidence that might disappear quickly if the police took the time to get a warrant.

Question 25

Emergency Aid Exception

Answer 25

An officer may enter premises without a warrant if the officer faces an emergency that threatens the health and safety of an individual or the public.

Question 26

Exceptions Permitting Warrantless Searches

Answer 26

seize spoiled or contaminated food

Administrative searches of a business within a highly regulated industry

inventory searches of arrestees

Searches of prisoners before being admitted into the general prison population

Searches of ailine passengers prior to boarding

Searches of parolees and their homes

Searches of Government employees’ desks and file cabinets

Drug tests of railroad employees

Drug tests of public school students who participate in extracuriculars

Question 27

Public School Searches

Answer 27

A warrant or PC is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary.

A school search will be held reasonable only if:

1. it offers a moderate change 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 nature of the infraction.

Question 28

Wiretapping and Eavesdropping

Answer 28

wiretapping constitutes a search under the 4th Amendment.

A valid warrant authorizing wiretapping may be issued if:

1. there is showing of PC,
2. the suspected persons involved int eh conversations to be overheared are named,
3. the warrant describes with particularity the conversations that can be overheard,
4. the wiretap is limited to short period of time,
5. the wiretap is terminated when the desired info has been obtained, and
6. return is made to the court, showing what conversations have been intercepted.

Question 29

Exceptions - Unreliable Ear and Uninvited Ear

Answer 29

A speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation or is an informer wired for sound or taping the conversation. A speaker has no 4th amend claim if they make no attempt to keep a conversation private.

Question 30

Pen Registers

Answer 30

Statute Judicial approval is required before a pen register may be used.

Question 31

Method of Obtaining Evidence that Shocks the Conscience

Answer 31

Evidence obtained in a manner that shocks the conscience is inadmissible under the Due Process Clause

I.e., torture