Summary: Searches and the Fourth Amendment

Fourth Amendment and Searches: Core Balance

  • The Fourth Amendment balances the need for searches against the right to privacy.
  • Not all searches are condemned; only "unreasonable searches".
  • Searches for evidence can be with or without warrants.

Analyzing Government Action in Searches

  • Key questions: Was the government action a search? If so, was it reasonable? If unreasonable, should the evidence be excluded?

Warrant Requirement and Meeting It

  • The Fourth Amendment commands warrants in many cases; there are exceptions, and most searches are done without warrants.
  • Three elements are required to meet the warrant requirement:
    • 33 elements: Particularity (place and things to be searched must be described); Probable-cause affidavit (shows evidence items will be at a particular place); The “knock-and-announce” rule (knock, announce, wait a reasonable time).

Particularity

  • Warrants must "particularly describe" the place to be searched. E.g., the address of a single-dwelling house like "404 Blake Road".

Knock-and-Announce Exceptions

  • There are 33 major exceptions to the knock-and-announce rule: to prevent violence, to prevent destruction of evidence, to prevent suspects from escaping.

Searches Without Warrants

  • While securing a warrant is preferable, most searches are done without warrants in practice.
  • Courts have broadly interpreted the exceptions to the warrant requirement.

Exceptions to the Warrant Requirement

  • There are 55 major exceptions:
    • Searches incident to arrest
    • Consent searches
    • Vehicle searches
    • Container searches
    • Emergency searches (exigent circumstances)

Searches Incident to Arrest

  • Searches incident to arrest occur before, during, and after arrest.
  • They do not require warrants or probable cause.
  • Officers may search only the area under the arrested person’s "immediate control" (the grabbable area).
  • Search is contemporaneous with arrest.

Functions of Searches Incident to Arrest

  • Three functions:
    • Protect officers
    • Prevent escape
    • Preserve evidence

The Robinson Rule

  • Under the Robinson bright-line rule, officers are always permitted to search anyone they can take into custody because: there is possible danger to police; it is impractical for the Court to review every decision; there is no automatic search incident to citation.

Search Incident to Pretext Arrest

  • If an officer has a probable cause arrest hunch for even a minor offense, the arrest is valid, as in the search incident to the pretextual arrest.

Consent Searches

  • Consent searches are when people allow officers to search without warrants or probable cause.
  • Consent must be voluntary.
  • Consent may be withdrawn.

The Voluntariness Test of Consent

  • Using the totality-of-circumstances, the government must show:
    • Knowledge of constitutional rights in general
    • Knowledge of the right to refuse consent
    • Sufficient age, maturity, and understanding to decide independently
    • Cooperation with officers
    • Attitude toward likelihood of discovery of contraband
    • Length of detention and questioning regarding consent
    • Coercive police behavior surrounding the incident

Withdrawal of Consent

  • U.S. Supreme Court has not ruled on whether voluntary consent can be withdrawn, but lower courts say yes. Any withdrawal must be supported by unambiguous acts or unequivocal statements.

Third-Party Consent

  • There is both a subjective and an objective rule for third-party consent:
    • Actual authority (objective) third-party consent
    • Apparent authority (subjective) third-party consent
  • The Supreme Court adopted the apparent authority test as the minimum Fourth Amendment requirement.

Vehicle Searches

  • The vehicle exception allows warrantless searches if there is probable cause to believe there is contraband or evidence.
  • There is a reduced expectation of privacy in vehicles because they are mobile and can leave the area.
  • Persons and containers within a vehicle may be searched.

Searches of Vehicle Passengers

  • Passenger containers can be searched, even without probable cause, due to the reduced expectation of privacy in automobiles.

Emergency (Exigent) Searches

  • Some situations make warrantless searches impractical or dangerous. Justifications include officer safety, preventing destruction of evidence, preventing suspect escape, and protecting the community.

Destruction of Evidence

  • A warrantless search is permitted if police have probable cause and reasonably believe evidence is about to be destroyed.

Hot Pursuit

  • If officers are in hot pursuit of a suspect with probable cause to arrest, they can follow the suspect into a house without a warrant.

Danger to the Community

  • A warrantless search is permissible if there is probable cause to believe the suspect has committed a violent crime or that the community is in immediate danger.