Search and Seizure Without Warrant

Question 1

Broadly speaking, what are the 8 exceptions to having to obtain a search warrant?

Answer 1

Exigent circumstances

Search Incident to Arrest

Consent

Automobile

Plain view

Inventory

Special Needs

Terry “Stop & Frisk”

Question 2

In terms of exigent circumstances, when can you rely on this to avoid getting a searchlight warrant?

Answer 2

The evidence would dissipate or disappear in the time it would take to obtain the warrant.

Hot pursuit

Emergency Aid

Question 3

Can a police officer claim exigent circumstances to make a forced entry into someone’s home in order to pursue a fleeing felon?

Answer 3

Yes, in an emergency like this, a police officer can gain entry to a private residence without a warrant to pursue a fleeing felon.

But cannot simply gain entry if the felon isn’t fleeing.

Question 4

When can an officer rely on “emergency aid” to gain entry into a private dwelling without a warrant?

Answer 4

The police have an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury

Question 5

If the police make an unlawful arrest, can then then search the suspect, relying on the “search incident to arrest” exception?

Answer 5

No, the arrest must be constitutional

Question 6

Where the police carry out a lawful arrest, what areas of the suspect may they search?

Answer 6

The wingspan of the suspect or anywhere the suspect could reach for a weapon/destroy evidence

Question 7

When does the search incident to arrest need to be carried out?

Answer 7

Needs to be contemporaneous in time and place of arrest

Question 8

Under the Search Incident to Arrest warrant exception, when may police conduct a search of a person’s car?

Answer 8

1. The police make a lawful arrest of the occupants of the car.
2. Police can then search the vehicle, passenger cabin, and close containers, but NOT the trunk if:

— the arrestee is unsecured and my still gain access to the interior of the vehicle

OR

— the police reasonably believe the evidence of the offence for which the person was arrested may be found in the vehicle

Question 9

After the police may a lawful arrest of an occupant of a car, can they search the entire vehicle, including the trunk?

Answer 9

They can search the vehicle, and closed containers in it, but NOT the trunk

Question 10

A police officer makes a lawful arrest of an occupant of a car and the arrested is unsecured. Can the police search the car?

Answer 10

Yes, as they may still gain access to the interior of their car.

Police cannot search the trunk, however.

Question 11

If a person gives you consent to conduct a search of their property, the consent must be what?

Answer 11

Voluntary, but the officer doesn’t need to tell the person they have the right to refuse

Question 12

Where a person gives the police consent to search their home, what is the scope of the consent?

Answer 12

Officers can assume it extends to all areas for which a reasonable officer would believe permission was granted.

Question 13

Is apparent consent sufficient to give an officer permission to search without a warrant?

Answer 13

Yes, provided the officer reasonably believes that person could give actual authority

Question 14

Do all parties of a shared property have to consent to a search before the police can do so?

Answer 14

No, but if one co-tenant doesn’t want to provide their consent, then the objecting party prevails

Question 15

When does the automobile exception apply to having to obtain a search warrant?

Answer 15

The police have probable cause to believe that the vehicle contains fruits, instrumentalities or evidence of a crime.

In this case, they can search ANY area of the vehicle, including the trunk

Question 16

The police have probable cause to believe that the occupants of the car have several shotguns in their car, of the police conduct a search under the automobile exception, can they open and search a hand sized package, now that they’ve stopped the car?

Answer 16

No, the police can only open and search containers in the car that could reasonably hold the evidence or instrumentalities for which they held probable cause to stop and search the car.

Question 17

What is the one exception to the probable cause rule where the police stop a car?

Answer 17

The police can make a routine traffic stop. If they acquire probable cause during their stop, they can then search the vehicle.

Question 18

What is the test for search and seizure of an item in Plain View?

Answer 18

• Lawful access to the premise
• Police discover fruits, instrumentalities or evidence whilst on site
• The police see the item in plain view
• The police criminality of the item is immediately apparent

Question 19

Do the police need to have inadvertently discovered the item to rely on the plain view exception?

Answer 19

No

Question 20

A vehicle is impounded and the police want to search it. What kind of search would this be?

Answer 20

An inventory search

Question 21

An arrestee is booked in jail and the police want to conduct a search. What exception to the warrant rule would this fall under?

Answer 21

An inventory search

Question 22

What 4 requirements need to be met in order for an investor search to be constitutional?

Answer 22

1. The regulations governing them are reasonable in scope
2. The search itself complied with those regulations
3. The search is conducted in good faith; and
4. It is motivated solely by the need to safeguard the owner’s possessions or ensure police safety

Question 23

What is a Terry Stop?

Answer 23

A brief detention or seizure for the purposes of investigating suspicious conduct

Question 24

When is a person “seized” for the purpose of a Terry Stop?

Answer 24

When a reasonable person would not feel free to leave or decline an officer’s request.

Question 25

Do you need probable cause to make a Terry Stop?

Answer 25

No, but the office must have a reasonable suspicion of criminality that is supported by articulable facts.

Question 26

When can an officer conduct a Terry Frisk?

What may they seize?

Answer 26

If an officer has REASONABLE SUSPICION that the detainee is armed and dangerous, they may conduct a Frisk (usually limited to the person’s outer clothing).

The office can then seize any weapon or contraband, provided they didn’t need to manipulate the object to find it.

Question 27

When can an officer carry out a Car Frisk (Terry Stop and Frisk Rules)?

Answer 27

When conducting a traffic stop, if the officer believes that a person is dangerous, she may search the passenger cabin of the vehicle and those areas where a weapon could be placed or hidden.

Question 28

When can police make a protective sweep of a person’s home?

What evidentiary standard applies to protective sweeps?

Answer 28

When making an in-home arrest, the police may sweep the residence to look for criminal confederates whose presence may threaten the officers’ safety.

Don’t need probable cause or suspicion in these circumstances.

Question 29

When might there be special need to carry out a drug test without a warrant?

Answer 29

Railroad employees

School children who participate in any after school activities

Question 30

A school teacher suspects a student has violated school rules by selling drugs. In what circumstances might they search the student’s backpack without a warrant?

Answer 30

• If the search would offer a MODERATE chance of finding evidence of wrongdoing
• The measures adopted to carry out the search are reasonably related to the objectives of the search
• The search is NOT EXCESSIVELY INTRUSIVE, in light of the student’s age and sex and the nature of the infraction

Question 31

The police lawfully arrest a driver and passenger of a car for speeding and secure both occupants in the back of the squad car. Can the police conduct a search of the car, and if so, where can they search?

Answer 31

No, The rule is that if the suspects are secured, the police can only search the vehicle if they have reason to believe that it contains evidence relating to the crime for which the arrest was made.

Because the suspects were arrested for driving offences, there is no reason to search the vehicle for evidence of this crime.

Question 32

What evidentiary standard applies to Terry Stops?

Answer 32

Reasonable suspicion

Of articulable facts that inform the officer’s belief that criminal activity is present.

Question 33

If the officer doesn’t have reasonable suspicion of articulable facts to believe criminal activity is present, when else might the police be able to conduct a stop if a vehicle?

Answer 33

The police may stop an automobile on a neutral, articulable basis to investigate a problem closely related to the mobility of the vehicle.

Question 34

What evidentiary standard applies to Terry Frisks?

Answer 34

For frisks, the standard is specific and articulable facts that suggest a suspect is armed and dangerous.

Question 35

When can the police set up roadblocks as a way for catching criminals?

Answer 35

Police my set up roadblocks to stop cars without individual suspicion that the driver has violated some law, provided:

– they stop cars on the basis of a neutral articulable standard; and

– the stop is motivated by a particular problem related to automobiles and their mobility (E.g. drunk driving)

Question 36

Can police officers conduct warrantless searches of parolees?

Answer 36

Warrantless, suspiciousness searches of parolee in their home are permissible as a condition of their parole.