Search & Seizure III; Warrantless Searches Flashcards
Some some exceptions to the Warrant Rule?
7 are listed
- plain view
- consented searches
- searches incident to arrest
- exigent circumstances
- automobile exception
- emergency exception
- hot pursuit
- non-criminal searches
Over time, exceptions to warrant searches has increased so much that it almost overwhelms the rule. However, two well established guidelines makes not having a warrant a violation. What are they?
- Warrantless searches are presumed unreasonable
- Arguably, reasonableness has become the true touchstone
What would allow a warrantless search to be reasonable?
- in plain view
- consented
- probable cause
- exigency
- some other good reason
True or False
Searches conducted without warrants far exceen those with warrants
True
Plain View Exception
Rules to Follow
- police may seize an object in palin view, feel, hearing, or smell without a warrant
- no reasonable expectation of privacy
- police must have legal right to be there
- public place, consent, warrant, administrative, or exigency
- officers must have probable cause to believe that items in plain view are contraband before they may search or seize them, thus incriminating nature of evidence must be readily apparent, requiring no further investigation
- inadvertent discovery (immediately apparent”
- unless have probable cause for broader search
- does not authorize an exploratory search
California v Ciraolo
476 US 207 (1986)
- Dante Carlo Ciraolo grew marijuana plants in his backyard shielded from view by two fences
- plants were seen by officer from an airplane at 1,000’ w/o a warrant
- Chief Justice Burger concluded this constitutional due to people easily being able to see it if they were high up thus plain view
Florida v Riley
488 US 445 (1989)
- Michael riley was convicted when police in a helicopter 400’ high spotted marijuana growing in a green house beside his mobile home
- court declared that he had not reasonable expectation of privacy because it was viewable from passing air traffic
- not a search = constitutional
Kyllo v US
533 US 27 (2001)
- thermal imagery was used to find marijuana plants growing in an attic
- Justice Scalia held the search unconstitutional w/o a warratn and the device was not commonly available to the public
- this holding will be out of date when technology became generally available
Consent Exception
Rules to Follow
- consent acts a waiver of the requirement
- search limited to scope of consent
What are the requirements to searching under consent?
- Voluntary
- product of free will (can be withdrawn)
- actual or apparent authority
- confine search to place authorized
Who can give consent?
- actual authority
- anyone with reasonable expectatio of privacy in place; can be common or joint among several people
- apparent authority
- good faith and reasonable
- conflicts of consent
- normally cannot waive another’s right
Search Incident to Arrest (SITA) Exception
Rules to Follow
- an arrest requires probable cause
- seizure and detention
- intention to arrest
- arrest authority
- understanding by the person arrested
An arrest is based upon probable cause of a crime while a search incident to arrest (SITA) is justified on what 2 grounds?
- danger to the officer
- potential destruction of evidence
What happens when a person is searched incident to arrest and they are carrying a “container”?
- generally, opaque containers considered to be within a person’s reasonable expectation of privacy
- may secure the container from loss or destruction based on reasonable suspicion
- cannot open and search inside container w/o a warrant
- unless exception applies
- automobile exception
- its seized so one has time to get a warrant
What is a Protective Sweep?
A limited search that police are allowed to donduct when they arrest someone The purpose is to allow officers to ensure their own safety, and that of those on the scene, by searching in the vicinty of the arrest. the search is for people who may pose a treat. The search is limited by time and place. A somewhat braoder sweep may be conducted if they have a reasonable suspicion of a danger or threat.
What is an exception to the 4th Amendment requiring officers to have warrants before searching homes?
Protective Sweet Doctrine
ANY evidence found that is in plain view will be used against defendant at trial.