4A – EXCEPTIONS TO THE WARRANT REQUIREMENT

Search Incident to Arrest – General Rule

Incident to a lawful arrest based on probable cause, the police may search the person and areas into which they might reach to obtain weapons or destroy evidence

Search Incident to Arrest – Protective Sweep

The police may make a protective sweep of the area if they believe accomplices may be present

Search Incident to Arrest – WHEN?

The search must be contemporaneous in time and place with the arrest

Search Incident to Arrest – Does the search need to be immediate/simultaneous?

NO

Will a search incident to arrest be constitutional if the arrest was unconstitutional?

NO

Search Incident to Arrest – Geographic Scope

The person and areas within the person’s wingspan

Search Incident to Arrest – Automobiles

The police may conduct a search of the passenger compartment of an automobile incident to arrest ONLY if at the 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

Search Incident to Arrest – DUI Arrests

Contemporaneous with an arrest for intoxicated driving, police may administer a warrantless breath test, but may NOT administer a warrantless blood test

Search Incident to Arrest – Cell Phones

Police officers may examine the physical attributes of a person’s cell phone upon arrest, but they may NOT examine the data on a cell phone without a warrant

Search Incident to Incarceration

At the police station, the police may make an inventory search of the arrestee’s belongings

Search Incident to Impoundment

The police may make an inventory search of an impounded vehicle

Automobile Exception – General Rule

If the police have probable cause 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 probable cause to search

Automobile Exception – May the police tow the car and search it later?

YES

Automobile Exception – When can the police NOT search a vehicle without a warrant?

If the vehicle is parked within the curtilage of the suspect’s home

Automobile Exception – When can the police seize a vehicle from a public place without a warrant?

If they have probable cause to believe that the automobile itself is contraband

Automobile Exception – Passenger’s Belongings

The search may extend to packages belonging to a passenger, not just the driver

Automobile Exception – Containers Placed in Vehicle

If the police have probable cause only to search a container in a vehicle, they may search only the container and not other parts of the vehicle

Automobile Exception – Does this exception allow the police to search the trunk?

YES

Automobile Exception – When does the probable cause need to arise?

The probable cause necessary to justify the warrantless search under the automobile exception can arise after the car is stopped, but the probable cause must arise before anything or anybody is searched

Plain View – General Rule

The police may make a warrantless seizure when they (1) are legitimately on the premises, (2) discover evidence, fruits or instrumentalities of a crime, or contraband, (3) see such evidence in plain view, AND (4) have immediately apparent probable cause to believe that the item is evidence, contraband, or a fruit or instrumentality of a crime

Consent – General Rule

A warrantless search is valid if the police have voluntary consent

Consent – Is knowledge of the right to withhold consent a prerequisite to establishing voluntary consent?

NO

Consent – Scope

The scope of the search may be limited to the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends

Consent – Authority to Consent

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

Consent – When can an occupant NOT give valid consent to a search?

When a co-occupant is present and objects to the search and the search is directed against the co-occupant

Consent – What if the objecting co-occupant is lawfully removed from the premises?

If the removal is unrelated to the refusal, the police may act on the consent of the remaining occupant, even if the removed co-occupant had refused consent

Stop and Frisk – General Rule

A stop is a brief detention for the purpose of investigating suspicious conduct, and a frisk is a patdown of the outer clothing and body to check for weapons

Stop and Frisk – Standards

A police officer may stop a person without probable cause for arrest if they have articulable and reasonable suspicion of criminal activity, and if the officer also reasonably believes that the person may be armed and presently dangerous, then the officer may conduct a protective frisk

Stop and Frisk – May the officer require the detainee to state their name?

YES

Stop and Frisk – Scope of Intrusion

The scope of the frisk is 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

Stop and Frisk – Admissibility of Evidence

During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes is a weapon or contraband based on its plain feel, and such items are admissible as evidence

Stop and Frisk – When can investigatory stop turn into an arrest?

If probable cause arises, the detention can become an arrest and the officer can then conduct a full search incident to arrest

Stop and Frisk – Automobile Stops

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 areas in which a weapon may be places

Evanescent Evidence – General Rule

Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant

Evanescent Evidence – Blood Sample

Officer need to get a warrant before taking a blood sample for a DUI arrest if it is practical to do so

Hot Pursuit – General Rule

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may pursue the suspect into a private dwelling

Hot Pursuit – When can the police NOT enter a home?

If the fleeing person is suspected of a misdemeanor

When is it NOT a hot pursuit?

If police are not within 15 minutes behind the fleeing felon

Can the police seize evidence in plain view at someone else’s home after making a warrantless entry into the home due to hot pursuit of a fleeing felon?

YES

Emergency Aid – General Rule

A police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the police

Administrative Inspections and Searches – General Rule

Inspectors must have a warrant for searches of private residences and commercial buildings, but the probable cause required to obtain a warrant is more lenient and requires only a showing of a general and neutral enforcement plan

Administrative Inspections and Searches – What searches will be upheld even without a warrant?

(1) Seizure of spoiled or contaminated food, (2) Search of a business within a highly regulated industry, (3) Inventory searches of arrestees or their vehicles, (4) Strip searches of prisoners before being admitted into the general prison population, (5) Searches of airline passengers, (6) Searches of parolees and their homes, (7) Searches of government employees’ desks and file cabinets if reasonable and work-related, (8) Drug tests of railroad employees involved in an accident, (9) Drug tests of persons seeking customs employment in positions connected to drug interdiction, (10) Drug tests of public school students in extracurricular activities

Public School Searches

A school search of students or their possessions will be reasonable only if (1) it offers a moderate chance 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

Searches in Foreign Countries

4A does not apply to searches and seizures by US officials in foreign countries and involving an alien who does not have a substantial connection to the US

Searches at the Border – General Rule

Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at the US border

Searches at the Border – Can a vehicle be stopped for questioning of occupants if the officer reasonably suspects that the vehicle contains undocumented aliens?

YES

Searches at the Border – Can border officials stop a vehicle at a fixed checkpoint inside the border for questioning of occupants without reasonable suspicion?

YES

Searches at the Border – Can border officials disassemble a vehicle inside the border without reasonable suspicion?

YES

Opening International Mail

Permissible border searches include the opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband

Searches at the Border – Detention

Officials with reasonable suspicion that a traveler is smuggling contraband in their stomach may detain the traveler

Factor Surveys

The ISD may day a factory survey of the work force in a factory to determine citizenship of each employee, and illegally obtained evidence may still be used in a civil deportation hearing

Wiretapping and Eavesdropping – General Rule

A valid warrant authorizing a wiretap may be issued if (1) there is a showing of probable cause, (2) the suspected persons involved in the conversations to be overheard are named, (3) the warrant describes with particularity the conversations that can be overheard, (4) the wiretap is limited to a short period of time, (5) the wiretap is terminated when the desired information has been obtained, AND (6) return is made to the court, showing what conversations have been intercepted

Wiretapping and Eavesdropping – Unreliable Ear Exception

A speaker assumes the risk that the person to whom they are talking either consent to the government monitoring the conversation or is an informer wired for sound or taping the conversation

Wiretapping and Eavesdropping – Uninvited Ear Exception

A speaker has no 4A claim if they make no attempt to keep a conversation private

Wiretapping and Eavesdropping – Pen Registers

Although pen registers are not controlled by 4A, by statute judicial approval is required before a pen register may be used

Method of Obtaining Evidence that Shocks the Conscience

Evidence obtained in a manner that offends a sense of justice is inadmissible, and if a crime is induced by official actions that shock the conscience, any conviction stemming from those actions is unconstitutional