Valid Warrantless Searches Flashcards
Search incident to lawful arrest
Police may search a lawfully arrested person and his immediate surrounding area without a warrant
Requirements:
1) Arrest must be lawful
2) Search must be contemporaneous with the arrest
3) Search must be limited to area within suspect’s reach or movement (i.e. where he could obtain weapons or destroy evidence)
Protective sweeps
Police may sweep an area for officer safety or with reasonable belief that accomplices may be present
Inventory search
Police may search arrestee’s belongings or seized property when jailing an arrested suspect
Automobiles
After arresting occupant, police may search the vehicle’s interior, including glove box, if at the time of the search:
a) Arrestee is unsecured and may access the vehicle interior, or
b) They reasonably believe evidence of the crime for which the arrest was made may be found in vehicle
-Police cannot search trunk without probable cause or consent
-Breathalyzer: a warrantless breathalyzer test is valid following a lawful arrest based on probably cause of drunk driving
Limitation: cell phones
Police may not search digital information on a phone seized during an arrest without a warrant
Plain view searches
Police may search from any place where they are legitimately present when viewing (i.e., when conducting the search)
Seizure based on plain view
Police may seize evidence in plain view without a warrant if:
1) Police are legitimately on the premises from which they viewed the evidence to be sezied;
2) Criminal activity or contraband is immediately apparent; and
3) Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime
Scope of plain view searches
Includes anything viewable from land or public property, even if only viewable through binoculars
Plain smell: included within plain view
-If a smell gives rise to probable cause from a place of legitimate police presence, they can search that item
Plain view searches-Limitations
Police cannot use technology not generally available to the public to view evidence that may constitute a plain view search
-E.g. infared scanners that can view through walls
-Note: use of drones for plain view searches is unsettled law and thus unlikely to appear on the MBE
Consent to search
With valid consent, police may search anything
Requirements for valid consent:
1) Voluntarily and intelligently made
-Police cannot falsely claim legal cause to search
-Police have no obligation to inform suspects that they have a right to refuse consent
2) Person giving consent has authority to consent
-Authority to consent must be reasonably apparent
Scope of consent: can be limited by consenting party
-Violation of scope renders the entire search non-consenting
Third party consent
Allowed if there is authority to consent
* Where multiple people have property rights (e.g. ownership, authorized use, occupancy,) any single one can consent to the search of any area where they have authority to consent
* A resident’s right to consent trumps a non-resident
-E.g. if both a tenant and landlord are present, the tenant’s refusal trumps the landlord’s consent
* Scope of consent is dictated by the person present with highest authority to consent
* Refusal trumps consent: no consent if 2 persons with equal right to possession disagree on consent
Automobile search exception
If probable cause exists, police may search an entire vehicle (including the trunk) and containers or compartments inside that may contain the evidence they are searching for
Requirements:
1) Police must have probable cause to search the vehicle; and
2) Probable cause must arise BEFORE the search begins
Automobile search exception-scope of permissible search
- Police can search the entire vehicle and all containers within the vehicle that might contain the object for which they are searching
-E.g. police may open packages or luggage that might contain evidence relating to the reason they searched the vehicle - Police may search passengers and their belongings
Stop and Frisk (Terry stop)
Police may detain a person for an investigative purpose if they have reasonable suspicion of criminal activity
Allowable scope of stop and frisk
- Length: detention must be no longer than necessary to verify the suspicion
- Frisk: if police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons
-Plain feel: if police have reasonable belief during the frisk that what they feel is a weapon or contraband, they may seize the suspected item
-Officers cannot manipulate the item to develop reasonable belief: it must be plain touch only
-Evidence validly seized is admissible
