EXCEPTIONS TO THE WARRANT REQUIREMENT Flashcards
SEARCH INCIDENT TO CONSTITUTIONAL ARREST
Incident to a constitutional arrest (that is, one based on probable cause to believe a law has been violated and that meets other constitutional
requirements), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence. The police may also make a protective sweep of the area if they believe accomplices may be present. The search must be contemporaneous in time and place with the arrest, but, at least with respect to searches of
automobiles, the term “contemporaneous” does not necessarily mean
“simultaneous.”
Constitutional Arrest Requirement
If an arrest is unconstitutional, any search incident to that arrest is
also unconstitutional.
Automobiles search incident to arrest
The police may conduct a search of the passenger compartment of
an automobile incident to arrest only if at the time of the search:
* The arrestee is unsecured and still may gain access to the interior
of the vehicle; or
* The police reasonably believe that evidence of the offense for
which the person was arrested may be found in the vehicle
DUI Arrest Justifies Breath (But Not Blood) Test
Contemporaneous with an arrest for intoxicated driving, police
officers may administer a warrantless breath test to determine
the arrestee’s alcohol levels but may not administer a warrantless
blood test.
Automobile exception to a warrantless search
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. If a warrantless
search of a vehicle is valid, the police may tow the vehicle to the
station and search it later. However, if the vehicle is parked within the
curtilage (for example, the driveway) of a suspect’s home, the police
may not search the vehicle without a warrant.
Passenger’s Belongings
The search may extend to packages belonging to a passenger; it is
not limited to the driver’s belongings.
Containers Placed in Vehicle
if the police have probable cause only to search a container in a
vehicle (for example, luggage recently placed in the trunk), they may
search only the container, not other parts of the vehicle.
The police may make a warrantless seizure when they:
* Are legitimately on the premises
* Discover evidence, fruits or instrumentalities of crime, or contraband
* See such evidence in plain view; and
* Have probable cause to believe (that is, it must be immediately apparent) that the item is evidence, contraband, or a fruit or
instrumentality of crime
CONSENT
A warrantless search is valid if the police have a voluntary consent.
Knowledge of the right to withhold consent is not a prerequisite to
establishing a voluntary 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. However, an occupant
cannot 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.
STOP AND FRISK
A Terry stop is a brief detention for the purpose of investigating
suspicious conduct. A Terry frisk is a patdown of the outer clothing
and body to check for weapons.
Evanescent Evidence exception
Evanescent evidence is evidence that might disappear quickly if the
police took the time to get a warrant.
Hot Pursuit
Police in hot pursuit of a fleeing felon may make a warrantless search
and seizure and may even pursue the suspect into a private dwelling.
However, if the fleeing person is suspected of a misdemeanor, their
flight does not always justify a warrantless entry into a home.
Emergency Aid/Community Caretaker Exception
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 public.
