CRIMINAL JUSTICE 

NAME Exceptions To Requirement For Search Warrants 

As a general rule, a search warrant based on probable cause must be obtained from a Court prior to conducting a legal search. The Courts have, however, recognized that there are situations where a police officer with probable cause may lawfully search and seize items without first obtaining a search warranties 

The following are exceptions to the search warrant requirement: 

A Stop and/or Frisk 

F. Incident to Arrest 1. Investigative Stop 

G Automobile Exception 2. Show-ups.. 

Hinventory Search 33. Vehicle stops. 

Sirip Search B. Consent.se 

. Canine Assisted Search. C Abandonment 

K: Blood Samples. D. Exlgency and Emergency.. 

L. Border Search: SE Plain View.. 

M Alfport Search.. 

Search 

A. Stop and/or Frisk - (S140.50 NYS C.P.L.) 

1. investigative Stop: 

a. A Police Officer may stop a person in a public place within his geographical area of 

employment when he reasonably suspects (does not have to have probable cause) that the person is committing, has committed, or is about to commit a misdemeanor defined in the penal law, or a felony. 

b. Upon stopping the person as in "a" above, the Police Officer may conduct a pat down 

frisk if the Police Officer reasonably suspects that he is in danger of physical injury or harm. The pat down is to uncover weapons or dangerous instruments, it is not designed as a search for contraband. 

C. The suspect is not required to identify himself. Refusal to answer questions does not, 

by itself, constitute probable cause to make an arrest. 

d. An investigative siop is not invalidated or converted into a full arrest simply because 

the officers show their weapons as they make the stop or because the suspect is ordered to lie on the ground. (People v. Chestnut, NYS Court of Appeals, 1981) 

2. Show-ups 

a. An individual reasonably suspected to have committed an offense may be forcibly 

detained for a reasonable period of time until the witness or victim can be brought to his location (see "d" above). 

b. If the police officer has probable cause to believe the suspect committed the offense, 

the suspect can be brought back to the scene for identification by a witness or victim. 

3. Vehicle Stops 

a. A Police Officer needs reasonable suspicion (not probable cause) that an offense has 

been or is being committed before he can stop or detain a driver. (Delaware v. 

Prouse, Supreme Court 1979) 

b. A police officer may order a driver to step out of the car and onto the road or sidewalk 

for the officer's safety. No cause need be shown first. (Pennsylvania v. Mimms, Supreme Court 1977) 

ASS 

0. The police may establish a road block, stopping vehicles according to a predetermined 

plan. (E.g., every fifth car.) 

B. Consent 

1. A person's consent to search his property must be given voluntarily, unequivocally, and 

specifically. 

2. Factors that will determine voluntariness: 

a. Was he in custody or free to go? b. How many Police Officers were present? c. Location - Was he home or at the Station House? d. What prior police involvements did he have? e. Were his friends or family present? f. Age. g. Intelligence. h. Was there a threat or use of force? i. Were enticements made to him? 1. Was he intoxicated? 

3. If possible, obtain the consent in writing. 

4. The consent can be revoked at any time. 

5. Where two people of suitable age and discretion have or reasonably appear to have authority 

or control over an item or place, either party can consent to the search of that property - EVEN IF THE OTHER PARTY OBJECTS. 

NOTE: When entering a home to do a warrantless search or make a warrantless arrest, 

the police officer must announce his or her intention when seeking consent to enter. 

C. Plain View 

1. Generally, objects falling in the plain view of an officer who has a right to be in the positic 

to have that view, are subject to seizure and may be introduced into evidence. (Harris v. U. 

Supreme Court 1968) 

2. Plain View is available if: 

a. The Police Officer is lawfully on the premises; and b. The discovery was inadvertent; and c. It must be immediately apparent that the object is subject to seizure or the Police 

Officer must have probable cause to believe the contents of the object are seizable. 

(Texas v. Brown, Supreme Court 1983) 

NOTE: If a police officer is on the outside, looking into an area in which there is areasonable 

expectation of privacy, absent exigenct circumstances, a warrant is needed to seize evidence or contraband that is in plain view therein. 

D. Abandoned Property 

1. When a person relinquishes his interest in property, he no longer retains an expectation of 

privacy in it and therefore is not protected by the Fourth Amendment. 

2. Examples: 

a. Throwing contraband out of a moving vehicle (even when pursued by the police). b. Denial of ownership when questioned (even when the defendant has previously been 

seen in possession of the item). c. Leaving items in a trash basket. 

E. Emergency 

1. This involves a need to act to prevent injury to persons or property and in so acting, seizablo 

items are observed in plain view. 

2. The test is that the Officer was acting pursuant to his duties and while so acting he 

inadvertently observes seizable items. (Same as plain view test.) 

3. E.g., Officer responding to request for aid, bomb search, or fire, and sees items in plain view. 

F. Exigent Circumstances 

1. When a Police Officer has probable cause to believe there are seizable items at a location and . 

reasonably believes that if he does not seize them immediately, the items will be destroyed or -removed, he can seize the itens. 

2. This is true for any evidence, not just weapons and contraband. 

3. This exception will usually arise out of a plain view situation. 

G.Incident to Arrest - Search of an individual 

1. When an arrest is made it is reasonable to search the arrestee to remove any weapons he 

might use to resist arrest or effect his escape and to uncover any evidence on his person to prevent concealment or destruction. You can also search the "grab area" for weapons or evidence. (Chimel v. California, Supreme Court 1969) 

2. If the Police seize an unlocked container in the grab area of an arrestee, they may open and 

search it if they reasonably believe that: 

a. it contains a weapon; or b. it contains evidence related to the arrest, and c. it is opened within a reasonably short time after the arrest. (See People v. Gokey - 

NYS Court of Appeals, 1983.) 

3. You may not open a locked container in a search incident to arrest unless you have a search 

warrant or unless it falls under a different exception that would permit it. 

NOTE: The "grab area" search of an arrestee incident to arrest, does not permit the search 

of other persons in the arrestee's grab area. 

H. Automobile Exception 

1. Due to the fact that automobiles are "inherently mobile," and that they are registered and 

otherwise regulated (vehicle safety inspections), the couris have held that there is "a diminished expectation of privacy within automobiles." 

2. Therefore, if a Police Officer has probable cause to believe that an automobile contains 

evidence or contraband, he may search the entire auto, including locked or closed containers in which the evidence or contraband could be hidden. (E.g., a Police Officer has probable cause to believe that there is a stolen 20-inch television in an auto, may search the passenger compartment and the trunk, but not the glove compartment or under the seats for 

the television). 

3. Once the object(s) of the search has been found and there is no probable cause to believe that 

the auto contains any further evidence or contraband, then the search is over. However, the courts have held that if illegal DRUGS are found in an auto or upon any of the occupants therein, there is probable cause to believe that the auto contains more drugs. (E.g., if a Police Officer observes a vial containing what he believes to be "crack" cocaine in plain view in an auto, he has probable cause to believe that the auto contains more "crack." Under the automobile exception, the Officer may then search anywhere in the vehicle that "crack" vials may be secreted and, if the Officer finds more "crack“ vials, he may continue the search for more "crack" cocaine. 

4. The automobile exception, however, may not be utilized as a pretext to search containers. 

The Supreme Court has held (Chadwick/Sanders Rule) that if your probable cause relates to a specific container not in an automobile, its subsequent placement in the vehicle will not 

invoke the automobile exception. (E.g., if you have probable cause to believe that a specific brief case contains narcotics before it is placed in a car, the automobile exception will not allow you to open it merely because if is now within a car -- rather, you may seize the brief case, but you must obtain a warrant to lawfully search it. 

I. Inventory Searches 

1. There are three reasons for inventory procedures. 

a. Protection of owner's property. Lb Protect police from claims of lost or stolen property. 

c. Protect police from potential danger. 

2. The authority of the Police to seize and remove vehicles from the street which are impeding 

traffic or threatening public safety and convenience is beyond challenge. (S. Dakota v. Opperman, Supreme Court, 1976). 

J. Strip Searches 

1. These are permissible when done pursuant to Police Department Rules and Regulations, 

regarding same-sex of searcher and searchee, supervision and record-keeping, and then only when this kind of significant intrusion into one's personal. privacy has a clear and legal justification, such as hidden evidence of a crime. 

K. Canine Assisted Searches 

1. Police Officers may temporarily detain luggage on reasonable suspicion (less than probable 

cause) that it contains narcotics, in order to have a trained narcotics detection dog "inspect" 

2. The detention can only be for a reasonable amount of time. (See U.S. v. Place, Supreme Court. 

1983.) 

L. Blood Samples 

1. Can take blood samples for Vehicle and Traffic Law (V.T.L.) Offenses if: 

a. the person expressly consents; or b. the person implies consent (if he's unconscious he has implied consent based on 

$7192 of the V.T.L.); or c. il a court order is obtained. 

2. Can take blood samples for Penal Law offenses if: 

a. the person expressly consents, or b. a court order is obtained. 

3. It appears that if blood is validly taken from an unconscious suspect for use at a V.T.L. related 

trial (e.g., D.W.I.), the sample could also be introduced at the related Penal Law trial (e.g., vehicular assault or homicide) as long as the two charges were merged in one trial. (See People v. Mosell, Court of Appeals, 1983 and People v. Kates, NYS Court of Appeals, 1983.) 

M. Border Searches 

1. Travelers may be stopped at international boundaries for national security and the self 

protection of the country being entered. (Carroll v. U.S., Supreme Court 1925.) 

2. The borcer includes the actual crossing point and a reasonably extended geographic area in the 

immediate vicinity of the border. (E.g., entry made into the United States via the waterways adjacent to Suffolk County, or through one of NYC's international airports.) 

N. Arte. Drug.com that profiles, by : 

1. Drug con profiles, by themselves, provide no probable cause to arrest an individual. 

(Florida v. Foger, Supreme Court, 1983)