Valid Warrantless Searches

Question 1

Search Incident to Lawful Arrest - General

Answer 1

Police may search a lawfully arrested person and his immediate surrounding area without a warrant

Question 2

Search Incident to Lawful Arrest - Requirement (3)

Answer 2

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)

Question 3

Search Incident to Lawful Arrest - Protective Sweeps

Answer 3

Police may sweep an area for officer safety or with reasonable belief that accomplices may be present

Question 4

Search Incident to Lawful Arrest - Inventory Search

Answer 4

Police may search arrestee’s belongings or seized property when jailing an arrested suspect

Question 5

Search Incident to Lawful Arrest - Automobiles (2 Requirements)

Answer 5

After arresting occupant, police may search the vehicle’s interior, including glove box, if at the time of the search:

1) Arrestee is unsecured and may access the vehicle interior, or

2) They reasonably believe evidence of the crime for which the arrest was made may be found in vehicle

• cant search trunk without probable cause or consent

Breathalyzer ok for DUI

Question 6

Search Incident to Lawful Arrest - Limitation on Cell Phones

Answer 6

Police may not search digital information on a phone seized during an arrest without a warrant

Question 7

Plain View Searches - General

Answer 7

Police may search from any place where they are legitimately present when viewing (i.e. when conducting the search)

Question 8

Plain View Searches - Requirements without a Warrant

Answer 8

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 seized

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

Question 9

Plain View Searches - Scope of Plain View Searches

Answer 9

Includes anything viewable from land or public property, even if only viewable through binoculars

Question 10

Plain View Searches - Plain Smell

Answer 10

Included within plain view

If a smell gives rise to probable cause from a place of legitimate police presence, they can search that item

Question 11

Plain View Searches - Limitations

Answer 11

Police cannot use technology not generally available to the public to view evidence that may constitute a plain-view search (e.g. infrared scanners that can view through walls)

Note: use of drones for plain view searches is unsettled law and unlikely to appear on the MBE

Question 12

Consent to Search - General

Answer 12

With valid consent, police may search anything

Question 13

Requirement for Valid Consent (2)

Answer 13

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 must be reasonably apparent

Question 14

Consent to Search - Scope of Consent

Answer 14

Can be limited by consenting party

Violation of scope renders the entire search non-consenting

Question 15

Consent to Search - 3rd Party Consent

Answer 15

Allowed if there is authority to consent:

Where multiple people have property rights, 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, tenant’s refusal trumps)

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

Question 16

Automobile Search Exception - General

Answer 16

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

Question 17

Automobile Search Exception - Requirements

Answer 17

1) Police must have probable cause to search the vehicle: and

2) Probable cause must arise before the search begins

Question 18

Automobile Search Exception - Scope of Permissible Search

Answer 18

Police can search 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

Question 19

Stop and Frisk - General

Answer 19

Police may detain a person for an investigative purpose if they have reasonable suspicion of criminal activity

Question 20

Stop and Frisk - Allowable scope of S & F (Length and Frisk)

Answer 20

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 frisj 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; must be plain touch only
• Evidence validly seized is admissible

Question 21

Stop and Frisk - Stop v. Arrest

Answer 21

A stop is a brief detention, less than an arrest

• but police may develop probable cause to arrest based on anything occurring or discovered during the stop and/or frisk

Question 22

Exigent Circumstances

Answer 22

If exigent circumstances exist, police can search or seize evidence without a warrant

• Hot pursuit, evanescent evidence, and emergencies are forms of EC

_ Plain view search can arise from any of the above warrantless searches

Question 23

Hot Pursuit

Answer 23

While actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection

• Permissible scope is as broad as reasonably necessary to prevent suspect from escaping or resisting
• police can enter into a private dwelling after attempting an arrest in a public place if they have probable cause

Question 24

Evanescent Evidence

Answer 24

Police can search or seize evidence that could disappear if police were required to secure a warrant

• e.g. drugs that may be discarded, DNA evidence that may not last
• Reasonableness judged by totality of the circumstances

Question 25

Emergency

Answer 25

Warrantless searches are justified for emergencies that threaten health or safety if not immediately acted upon

• e.g. police see someone injured or threatened with injury, bomb threats, need to find source of a food or drug contamination
• Whether an emergency exists is viewed objectively

Question 25

Emergency

Answer 25

Warrantless searches are justified for emergencies that threaten health or safety if not immediately acted upon

• e.g. police see someone injured or threatened with injury, bomb threats, need to find source of a food or drug contamination
• Whether an emergency exists is viewed objectively