Fourth Amendment-Exceptions to the Warrant Requirement

Question 1

What are the exceptions to the warrant requirement?

Answer 1

All warrantless searches conducted by law enforcement officers are unconstitutional unless they fit into one of six recognized exceptions to the warrant requirement.

Question 2

What is a search incident to constitutional arrest?

Answer 2

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.” Thus, for example, the police may search the interior of an automobile after securing a recent occupant of the automobile in a squad car if they have reason to believe that the vehicle contains evidence of the crime for which the recent occupant was arrested. (See below.)

Question 3

What is the constitutional arrest requirement?

Answer 3

If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.

Question 4

What is the geographic scope?

Answer 4

What can be searched? The person and the areas within the person’s wingspan.

Question 5

What is the automobile search incident to a constitutional arrest?

Answer 5

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.

Question 6

What are technological searches?

Answer 6

In assessing the validity of a search incident to arrest involving things that did not exist when the Fourth Amendment was adopted (for example, cell phones, blood alcohol tests), the court will balance the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which the search is needed to promote legitimate governmental interests.
a. 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. Rationale: A breath test is not very intrusive and leaves no lasting sample with the government, while a blood test requires piercing the skin and leaves the government with a genetic sample. As a corollary, violation of an implied consent law (that is, a law providing that by driving on the roads a driver impliedly consents to a blood test if stopped for intoxicated driving) can be punished civilly (for example, suspension of license) but not criminally.
b. Physical Attributes of Cell Phone May Be Searched But Not Data
Because of their strong interest in assuring that arrestees do not have weapons or contraband, police officers my examine the physical attributes of a person’s cell phone upon arrest. However, officers may not examine the data on a cell phone without a warrant since it cannot be used as a weapon.

Question 7

What is a search incident to incarceration or impoundment?

Answer 7

At the police station, the police may make an inventory search of the arrestee’s belongings pursuant to established department procedure. Similarly, the police may make an inventory search of an impounded vehicle.

Question 8

What is the automobile exception?

Answer 8

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.
Note: If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant.

Question 9

What happens to a passengers belongings?

Answer 9

The search may extend to packages belonging to a passenger; it is not limited to the driver’s belongings.

Question 10

What happens to containers placed in a vehicle?

Answer 10

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.

Question 11

What is the probable cause needed to search a car?

Answer 11

The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped, but the probable cause must arise before anything or anybody is searched.

Question 12

What is plain view?

Answer 12

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

Question 13

What is consent?

Answer 13

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. The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.

Question 14

Who has the authority to give consent?

Answer 14

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. If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (for example, a lawful arrest), the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent.

Question 15

What is stop and frisk?

Answer 15

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.

Question 16

What are the standards for stop and frisk?

Answer 16

A police officer may stop a person without probable cause for arrest if they have an articulable and reasonable suspicion of criminal activity. The officer may require the detainee to state their name, and if the officer also reasonably believes that the person may be armed and presently dangerous, the officer may conduct a protective frisk.

Question 17

What is the scope of intrusion duirng a stop and frisk?

Answer 17

The scope of the frisk is generally limited to a patdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing.

Question 18

What is the admissibility of evidence found during a stop and frisk?

Answer 18

During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband, and such items are admissible as evidence.

Question 19

What about stop and frisks during an automobile stop?

Answer 19

If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may: (1) conduct a frisk of the suspected person, and (2) search the vehicle, so long as it is limited to the areas in which weapon may be placed.

Question 20

What is evanescent evidence?

Answer 20

Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant. For example, a police officer can scrape under a suspect’s fingernails without getting a warrant because if the officer took the time to get a warrant the defendant might go wash their hands.
But note: In 2013, the Supreme Court held that officers need to get a warrant before taking a blood sample for a DUI arrest (if it is practical to do so).

Question 21

What is hot pursuit?

Answer 21

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. The officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies a warrantless entry.
Rule of thumb: If the police are not within 15 minutes behind the fleeing felon, it is not a hot pursuit that falls under the exception.

Question 22

What is the emergency aid/community caretaker exception?

Answer 22

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.

Question 23

What are the administrative inspections and searches?

Answer 23

Inspectors must have a warrant for searches of private residences and commercial buildings, but the probable cause required to obtain a warrant is more lenient than for other searches: A showing of a general and neutral enforcement plan will justify issuance of a warrant.

Question 24

What are the exceptions permitting warrantless searches?

Answer 24

The following warrantless searches have been upheld:
• Administrative searches to seize spoiled or contaminated food
• Administrative searches of a business within a highly regulated industry
• Inventory searches of arrestees or their vehicles pursuant to established department procedure
• Searches—including suspicionless strip searches—of prisoners before being admitted into the general prison population, even of persons arrested for minor crimes
• Searches of airline passengers prior toboarding • Searches of parolees and their homes—even without reasonable grounds for the search, at least as long as there is a statute authorizing such searches
• Searches of government employees’ desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct
• Drug tests of railroad employees involved in an accident
• Drug tests of persons seeking customs employment in positions connected to drug interdiction
• Drug tests of public school students who participate in extracurricular activities
a. Public School Searches
A warrant or probable cause is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary. A school search will be held to be reasonable only if:
• It offers a moderate chance of finding evidence of wrongdoing
• The measures adopted to carry out the search are reasonably related to the objectives of the search; and
• The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Question 25

What happens with searches in foreign countries?

Answer 25

The Fourth Amendment does not apply to searches and seizures by United States officials in foreign countries and involving an alien, at least where the alien does not have a substantial connection to the United States. Thus, for example, the Fourth Amendment was held not to bar the use of evidence obtained in a warrantless search of an alien’s home in Mexico.

Question 26

What happens with searches at the border or its equivalent?

Answer 26

Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at the U.S. border, due to national sovereignty interests. Roving patrols inside the U.S. border may stop a vehicle for questioning of occupants if an officer reasonably suspects that the vehicle contains undocumented aliens. Border officials may stop a vehicle at a fixed checkpoint inside the border for questioning of occupants and may disassemble the vehicle, even without reasonable suspicion.

Question 27

Can you open international mail?

Answer 27

Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband.

Question 28

What are immigration enforcement actions?

Answer 28

The Immigration Services Division may do a “factory survey” of the work force in a factory to determine citizenship of each employee. Moreover, even illegally obtained evidence (that is, evidence obtained in violation of the Fourth Amendment) may be used in a civil deportation hearing.

Question 29

What are detentions?

Answer 29

Officials with “reasonable suspicion” that a traveler is smuggling contraband in their stomach may detain the traveler.

Question 30

What is wiretapping and eavesdropping?

Answer 30

Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes a search under the Fourth Amendment. A valid warrant authorizing a wiretap may be issued if (1) there is showing of probable cause, (2) the suspected persons involved in the conversations to be overheard are named, (3) the warrant describes with particularity the conversations that can be overheard, (4) the wiretap is limited to a short period of time, (5) the wiretap is terminated when the desired information has been obtained, and (6) return is made to the court, showing what conversations have been intercepted.

Question 31

What are the exceptions to wiretapping and eavesdropping?

Answer 31

A speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation or is an informer wired for sound or taping the conversation. A speaker has no Fourth Amendment claim if they make no attempt to keep a conversation private.

Question 32

What are pen registers?

Answer 32

Although pen registers (devices that record only phone numbers that are dialed from a phone) are not controlled by the Fourth Amendment, by statute judicial approval is required before a pen register may be used.