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Flashcards in Fourth Amendment: Exceptions Deck (16)
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  • probable cause always required.
    1. ) a warrant is not required to arrest in public for a felony (or misdemeanor committed in the officer’s presence), but is required to arrest an individual in their own home, unless exigent circumstances exist.

Terry Stops


Reasonable suspicion that a crime is in progress or has just been committed justifies a brief investigatory seizure (terry stop) to confirm or rule out suspicion.

Established by:
1.) police observations and eyewitness reports;

  1. ) flight from police in high-crime areas; and
  2. ) an informant’s tip plus police investigation that corroborates the tip (don’t need insider access)
    * Scope: time required, acting in due diligence to confirm or deny suspicion.

Seizures of Property


a warrant (based on PC) is presumptively, but no always, required to justify seizure of property.

  1. ) No warrant is required if the property is in plain view, which requires:
    a. ) the police are in a lawful vantage point to observe the item;
    b. ) it is immediately apparent that the item is contraband; and
    c. ) the officer has lawful access to the point of seizure

Searches pursuant to a warrant


a warrant gives police authority to search only the named places or people.

  • contraband not named can be seized if in plain view
  • police have the right to detain occupants during the search (but not the right to search them)
  • warrantless searches unreasonable UNLESS it falls into an established exception

Exigent Circumstances


a warrantless search is permissible when waiting to obtain a warrant would result in the imminent destruction of evidence, escape of the accused, or risk to police or others in the area.

*This justifies a warrantless search and seizure of evidence in or on a suspect’s body if
police have PC to believe that the nature of evidence renders it easily destroyed or
likely to disappear before a warrant can be obtained
**Needs to be reasonable and not shock the conscious

*An exigency justifies a warrantless crime scene search to seek other victims, remaining
killers, or violent felons


Hot Pursuit


Police may enter and search a private dwelling while in hot pursuit of a fleeing suspect

*they may execute a warrantless arrest of the suspect on the premises and seize any contraband observed in plain view pursuant to the hot pursuit.


Search Incident to a Lawful Arrest (SILA)


Upon a LAWFUL arrest (based on PC), police can automatically search the arrestee AND the area within their immediate control (wingspan or lunging distance)

*search must be contemporaneous

1.) if arrested at home, the search is limited to the area within lunging distance, and police have no
authority to search the entire house

**If the police have RS that other people are home, and may put the police at risk,
they can conduct a cursory protective sweep, but ONLY where people could fit

2.) If arrested in or right out of a car, police can automatically search the person

**If the arrestee has genuine access to the interior of the car after arrest,
police can search the car interior and all containers within the interior

**If the arrestee has no genuine access to the interior of the car, police can only check the
car if they have a reasonable belief that evidence related to the crime of arrest may be
found there


Automobile Exception


Police can search a car as long as they have PC

  1. ) justified by the inherent mobility and reduced expectation of privacy.
  2. ) applies to all containers within the vehicle where the item coould be found for which probable cause exists
  3. ) police can also impound car and search it later



If the individual waives their right to privacy by consenting to the search, the search is reasonable even if the police have no suspicion.

1.) Must be VOLUNTARY (based on the totality of the circumstances)

  1. ) Consent is INVALID if obtained:
    (i) by asserting a fake warrant;
    (ii) fraudulently;
    (iii) under duress; or
    (iv) pursuant to an unlawful police threat

3.) if the consent is obtained following an unlawful seizure, it is tainted, and the consent and any evidence obtained from the search are invalid.


Third-Party Consent


1.) Any person who has joint control or use of shared premises
may consent to a valid search, and any evidence obtained may be used against all residents

  • Applies to common areas, but not where the defendant has exclusive control

*Police reliance on consent is reasonable if the person has the actual authority or a
reasonable officer would believe that the person had authority

**Cannot rely on third-party consent when the other party is present and objecting


Special Needs Doctrine


1.) Police can use checkpoints to conduct brief seizures or limited searches
without any individualized suspicion or warrant because of a danger to the
public safety that cannot be addressed by complying with warrant requirements

  1. ) Primary purpose must be need to search or seize to protect public from IMMEDIATE danger
  2. ) The stops or seizures must be:
    a) based on a fixed formula that deprives individual officers of discretion to select subjects;
    (b) narrowly tailored in scope to address the specific threat; and
    (c) conducted in a location and manner that minimizes citizen anxiety
    * can seize contraband that comes into plain view even if unrelated to public safety concern.

Terry Search (Frisk)


1.) Police may conduct a cursory PROTECTIVE search for weapons or some other
instrumentality that creates imminent danger to the officer or others in close proximity

2,) Justified only by RS that the suspect is ARMED AND DANGEROUS

3.) Limited to the suspect’s outer clothing to confirm or deny that the suspect is armed

4.) If the frisk / pat down results in the officer feeling something he knows immediately is a
weapon or other contraband, the officer may seize it without a warrant pursuant to “plain
**If the officer knows it is not a weapon and has to manipulate it to establish PC to seize
it, this exceeds the scope and is unreasonable


Terry Frisk - Cars


A brief, cursory look in a car where police have RS that the person stopped will have
immediate access to a weapon after getting back in car is permitted


Terry Frisk - Home


A cursory sweep of a home is permitted based on a RS that others may be present
and endanger the officer


Administrative Searches


These searches are conducted for non-criminal purposes and so justify a lower standard of cause; RS sufficient


Border Searches (Border Exception)


1.) Customs and immigration officers may stop people
and vehicles at permanent checkpoints at or near border (up to 100 miles inland) and
conduct routine searches of people and property with no individualized suspicion (randomly).
Applies to all international ports of entry, including international airports.

2.) RS is required for:

a.) “non-routine” border searches (i.e., unusually intrusive searches, like body cavity search)
or a search that results in permanent destruction of property; and

b.) roving border stops on U.S. roads