Valid Warrantless Searches Flashcards
Search Incident To Lawful Arrest
Police may search a lawfully arrested person and his immediate surrounding area without a warrant.
Search Incident To Lawful Arrest
Requirements
- Arrest must be lawful
- Search must be contemporaneous with the arrest
- Search must be limited to area within suspects’s immediate reach or movement (i.e. where he could obtain weapons or destroy evidence).
Search Incident To Lawful Arrest
Protective sweeps
Police may sweep an area for officer safety or with reasonable belief that accomplices may be present
Search Incident To Lawful Arrest
Inventory Search
Police may search arrestee’s blongings or seized property when jailing an arrested suspect.
Search Incident To Lawful Arrest
Automobile
After arresting occupant, police may search the vehicle’s interior, including the golvoe but, if at the time of the search:
- Arestee is unsecured and may access the cehicle interior, or
- They reasonably believe evidence of the crime for which the arrest was made may be found in the vehicle
- Police cannot search trunk without probabe cause or consent
Search Incident To Lawful Arrest
Cell Phones
Police may not search digital information on phones seized during an arrest without a warrant.
Plain View Searches
Police may search from any place where they are legitimatley present when viewing (i.e. when conducting the search).
Plain View Searches
Seizure Based on Plain View
Police may seize evidence in plain view without a warrant if:
- Police are legitmately on the premises for which they viewed the evidence to be seized
- Criminal activity or contraband is immediatley apparent
- Police has probable cause to believe that plainly viewed evidence is contraband or relates to a crime.
Plain View Searches
Scope & Limitations of Plain View Searches
- Plain view includes anything viewable from land or public property, even if only viewable through binoculars
- Police cannot use technology not generally avaiable to the public to view evidence that may constitute plain view (e.g. infrared scanners that can view through walls)
- Use of drones for plain view searches is unsettled law.
- 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.
Consent to Search
With valid consent, plice may search anything
Consent to Search
Requirements for Valid Search
- Voluntarily and intelligently made
- Police cannot lie or deceive to obtain consent
- Police has no obligation to inform suspects that they have a right to refuse consent.
- Person giving consent has authority to consent
- Authority to consent must be reaosnably apparent.
Consent to Search
Scope of Consent
Can be limited by consenting party
- violation of scope renders the entire search non-consenting
Consent to Search
Third-Party Consent
Allowed if there is authority to consent
- Where multiple people have property rights (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
- If both tenant and LL are present, the tenant’s right trumps the LL’s consent.
- Scope of consent is dictated by the person presetn with the highest authority to consent
- Refusal trumps consent – no consent if two person 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.
Automobile Search Exception
Requirements
- Police must have probable cause to search the vehicle
- Probable cause must arise before the search begins
- i.e. probable cause must arise based on something between the vehicle stop and the search.
Automobile Search Exception
Scope of Permissible Search
- Police may search passenders and their belongins
- Packages & containers, or luggage that might contain evidence relating to the reason they searched the vehicle
- Police may also two the vehicle and search sich containers at a later time.
Automobile Stop
Reasonable suspicion required:
- To stop or pull over a vehicle, police must have a reasonable suspicion that a law has been violated.
- Pretextual stops: ulterior motive for a stop is OK if police have a reasonable suspicison of illegal activity.
Automobile Stops & Search Checkpoins
Accompanying Searches
Police may search:
- Passengers and passenger compartments (but not the trunk) if officer reasonably believes weapons may be present
- Police can order passengers out of the car.
- Any open containers that could reasonably contain evidnce supporting the reasonable suspicion for the stop
- Does not include closed, locked containters
- Entire car may be searches if probable cause arises pursuant to the automobile search exception.
Automobile Searches
Police Check Points
must relate to a vehicle-specific purpose
- A police checkpoint/roadblock that stops cars without individualized suspicion, must:
- Stop every car using neutral, articulable standard (i.e. every fourth car)
- Serve purposes related to automobiles and their mobility
- E.g. DUI checks relate to road safety, but drug checkpoints are insufficiently related to driving, and are thus unconstitutional.
Stop & Frisk
Police may detain a person for an investigative purpose if they have reasonable suspicion of criminal activity.
Stop & Frisk
Allowable Scope of Stop & 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 reasonably belief during the drisk 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
- Plain feel– if police have reasonably belief during the drisk that what they feel is a weapon or contraband, they may seize the suspected item
- If police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons
Stop & Frisk
Stop vs. Arrest
- A stop is a brief detention, not an arrest
- But police may develop probable cause to arrest based on anything occurring or discovered during the stop and/or frisk
Exigent Circumstances: Hot Pursuit, Emergency Searches, & Evanescent Evidence
Police can seize or search evidence without a warrant in exigent circumstances
Exigent Circumstances: Hot Pursuit, Emergency Searches, & Evanescent Evidence
Hot Pursuit
While actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection.
Exigent Circumstances: Hot Pursuit, Emergency Searches, & Evanescent Evidence
Evanescent Evidence
Police can search or seize evidence that could disappear if police were required to secure a warrant.
- e.g. drung that may be discarded, DNA evidence that may not last.
Exigent Circumstances: Hot Pursuit, Emergency Searches, & Evanescent Evidence
Emergency
Police can search or seize evidence if justified by emergency crcumstanes
- e.g. a bomb threat or act of terrosism
