Warrant Exceptions Flashcards
(25 cards)
Exigent Circumstances (Hot Pursuit)
- Police may enter and search private property without a warrant if they are in hot (not hours later) pursuit of a suspected felon (not necessarily minor offenses (case by case analysis)). The permissible scope of the search is as broad as is reasonably necessary (probable cause) to prevent the dangers that the suspect at large may resist or escape.
a. Evidence discovered in plain view while searching for suspect admissible.
- Absent hot pursuit of a fleeing felon, police need a warrant based on probable cause to make a routine felony arrest in a suspect’s home, even if the crime for which the arrest is being made is a serious one.
Exigent Circumstances (Emergency Aid/Assistance [Safety)
Police may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. This exception does not depend on the officers’ subjective intent or the seriousness of any crime they are investigating when the emergency arises, It requires only an objectively reasonable basis for believing that a person inside is in need of emergency aid.
Exigent Circumstances (Destruction of Evidence)
- Permits police to perform a search without a warrant if they reasonably believe it is necessary to prevent the imminent destruction of evidence. Exigency is determined case-by-case based on the totality of the circumstances.
a. Exigent circumstance entry is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment.
- Alternatively, instead of a warrantless search, police can temporarily seize or secure the premises to prevent the destruction of evidence and provide time for officers to obtain a search warrant if police have probable cause to believe evidence of crime is on the premises.
Exigent Circumstances (Murder Scenes)
When police arrive at the scene of a homicide, they may make a quick warrantless search of the area to see if there are other victims or if a killer is still on the premises, and they may seize any evidence that is in plain view during their legitimate emergency activities. Once the emergency has passed, however, subsequent searches must be authorized by a warrant.
Search Incident to Lawful Arrest
When a lawful arrest is made, police may search the arrestee’s person and the grab space, the area into which the arrestee might reach where he could gain possession of a weapon or destructible evidence. The search incident to arrest may be made without a search warrant and without probable cause/reasonable suspicion to make the search. The search needn’t take place immediately upon arrest; it can occur upon arrival at the place of detention or, with good reason, even hours later.
When the police make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, the police may—without a warrant, probable cause, or reasonable suspicion—take and analyze a cheek swab of the arrestee’s DNA. Like fingerprinting and photographing, the warrantless taking and analysis of the arrestee’s DNA is a legitimate police booking procedure that is reasonable under the 4th Amendment.
The search incident to arrest exception to the warrant requirement doesn’t permit police to search the contents of an arrestee’s cell phone. In most circumstances, police must obtain a warrant before searching the contents of an arrestee’s cell phone.
Search Incident to Lawful Arrest (Protective Sweep)
Protective Sweep - cursory visual inspection of places which a person might be hiding
- Police may also conduct a warrantless protective sweep—a cursory visual inspection of those places in which a person might be hiding.
A. As a precautionary measure and without probable cause or reasonable suspicion, police can look in closets and other spaces immediately adjoining the place of arrest from which an attack could be launched.
B. Beyond the areas immediately adjoining the place of arrest, police must have reasonable suspicion that the area to be swept harbors an individual posing a danger to those on the arrest scene.
Search Incident of Lawful Arrest (of automobiles)
Police may perform a warrantless search of a vehicle incident to a recent occupant’s arrest if the arrestee is not “secured” at the time of the search, or if it is reasonable to believe that the vehicle contains evidence relevant to the crime of arrest.
Police may perform warrantless search of a vehicle incident to arrest, under the circumstances set forth in Arizona v. Gant (handcuffed, put in back of patrol car), only if police actually arrest one of the occupants. If police issue a citation rather than an arrest, search incident to arrest exception does not apply.
Consent
Police may perform a search without a warrant and without probable cause if they have valid consent. In order to demonstrate valid consent, the prosecution must show that the consent was voluntarily given, and is not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from the totality of the circumstances. While knowledge of a right to refuse consent is one factor to be taken into account, the prosecution need not prove such knowledge to establish voluntary consent.
A third party’s consent to a search is valid if it is voluntary and if the police reasonably believe that the third party has common authority (mutual use of the property by the persons joint access/control) over premises.
A physically present resident’s refusal of consent to a search prevails over another resident’s permission. But once the objecting resident physically leaves, the police may search with the voluntary consent of another resident who has common authority over the premises.
Automobile Exception
- Police may search a vehicle without a warrant if they have probable cause to believe evidence or contraband is inside the vehicle. The search of the vehicle need not take place immediately; it can be done after the vehicle has been taken to a police station and is no longer mobile.
a. Cars are mobile & have lesser expectation of privacy in car
- The search may include any containers or personal effects within the (entire) vehicle, regardless of whether the containers or personal effects belong to the driver or to a passenger.
- If the probable cause supporting the search extends only to certain containers within the vehicle, the police must confine their search to those items or containers and may not search the entire vehicle.
Plain Touch/Plain View
Police may seize an item in plain view if they are legitimately on the premises AND it is immediately apparent (can’t manipulate objects to see evidentiary value) that the item is evidence of a crime, contraband, or otherwise subject to seizure.
A police officer can use all of his senses (smell and touch) when he is lawfully present at a particular location. Accordingly, there is a “plain touch” corollary to the plain view exception that allows an officer to seize an item if he is legitimately in a position to feel it, and if it is immediately apparent—based only on his quick touch and without further manipulation or “search”—that the item is evidence of a crime, contraband, or otherwise subject to seizure.
Inventory Search
If police are lawfully in possession of private property (impounded vehicle/bag or purse belonging to an arrestee) they may inventory the contents without probable cause or a warrant as long as the inventory is undertaken as part of a routine police policy or procedure. Any evidence or contraband discovered during the routine inventory is admissible.
Special Needs (Administrative Searches)
Most administrative searches and inspections of residential property proceed without any difficulty, based not the consent of the property owner or an occupant. But if the owner or occupant refuses to permit an administrative search, and there is no emergency justifying a warrantless entry, the inspector must secure a warrant based upon probable cause. Probable cause for inspection warrant exists if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards may be used upon the passage of time, the nature of the building (a multifamily apartment house, for example), or the condition of the entire area, but they will necessarily depend upon specific knowledge of the condition of the particular building.
Business premises may reasonably be inspected in many more situations than private homes, and most administrative searches and inspections of commercial property also proceed without any difficulty, based upon the consent of the owner or occupant. But if the owner or occupant refuses entry, the inspector must secure a warrant based upon probable cause in order to inspect those portions of the commercial property that are not open to the public.
Warrantless (no p/c) administrative inspections in “closely regulated” industries will be deemed reasonable under the 4th Amendment provided three criteria are met:
a.) There must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made.
b.) The warrantless inspections must be necessary to further the regulatory scheme.
c.) The statutory inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.
i.) The statute must be sufficiently comprehensive and defined that the owner of the commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.
ii.) The statute must limit the discretion of the inspectors with restriction on time, place, and scope.
Special Needs (Border Crossing At Border)
Pursuant to the long-standing right of the sovereign to protect itself by stopping and examining (search/question) persons and property crossing into the U.S., are reasonable under the 4th Amendment simply by virtue of the fact that they occur at the border or its functional equivalent. There is no additional requirement that such searches be supported by probable cause or a warrant.
A prolonged detention or an invasive search of a person at the border or its functional equivalent—beyond the scope of a routine customs search or inspection—is justified if authorities have reasonable suspicion of wrongdoing. The detention or search should be reasonably related in scope to the circumstances which justified it initially—the person should not be held longer or searched more invasively than necessary to verify or dispel the suspicion.
Under federal customs regulations, international mail entering the U.S. may be opened and searched without a warrant as long as authorities have “reasonable cause to suspect” a violation of the customs laws. The statutory “reasonable cause to suspect” standard is a practical test which imposes a less stringent requirement than the 4th Amendment requirement of probable cause.
Special Needs (Border Crossing Near Border)
Immigration and law enforcement officials may establish fixed checkpoints near the border where, without a warrant or particularized suspicion, vehicles briefly stopped and the occupants questioned. In order to search a vehicle at a fixed checkpoint near the border, however, authorities must have consent or probable cause.
Immigration and law enforcement officials may make a warrantless roving stop of a vehicle traveling near the border based on reasonable suspicion of wrong doing. In order to search a vehicle following a roving stop, however, authorities must have consent or probable cause.
Special Needs (Checkpoints)
- Motorist briefly stopped at checkpoint is “seized,” but the seizure need not be supported by a warrant, probable cause, or even reasonable suspicion of wrongdoing, as long as vehicles are stopped in a neutral fashion that limits the discretion of the police. In determining the constitutionality of a checkpoint seizure, a court should weigh the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.
a. Extended detention of motorist (who’s singled out for additional investigation beyond brief stop and questioning of normal operation checkpoint) must be justified by reasonable suspicion of wrongdoing.
- Supreme Court approved highway checkpoints to enforce immigration laws, ensure roadway safety, and seek public’s assistance in solving a crime. Authorities may not, however, establish highway checkpoint program whose primary purpose is ordinary crime control or the discovery and interdiction of illegal drugs. The primary purpose inquiry is conducted at the programmatic level; a court should not probe the minds of individual officers acting at the scene. When authorities establish a checkpoint primarily for the ordinary investigation of crimes, a motorist may be stopped only if there is individualized suspicion.
Special Needs (School Searches)
- Prohibition on unreasonable searches and seizures applies to searches of students conducted by public school officials.
- Teacher or school official may, without a warrant or probable cause, search child suspected (Reasonable suspicion) of violating the law or the school’s rules. The search must be justified at its inception and reasonably related in scope to the circumstances which justified the intrusion in the first place.
a. A search of a student by a teacher or school official is justified at its inception if there is reasonable suspicion that the search will turn up evidence that the student has violated or is violating the law or the school’s rules.
b. A search of a student is permissible in scope when the measures adopted are reasonably related to the objectives of search and not excessively intrusive in light of the age and sex of the student and the nature of infraction.
- Highly intrusive search of a student (exposure of intimate parts)requires stronger suspicion of danger or suspicion that evidence of wrongdoing is hidden in the area to be searched than is required for a more limited search of a student’s outer clothing, backpack, or other belongings.
Special Needs (Gov. Employees)
Searches and seizures by government employers or supervisors of the private property of their employees are subject to the restraints of the 4th Amendment. But given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy in his office or workplace must be addressed on a case-by-case basis.
A public employer needs neither a warrant nor probable cause to search an employee’s office or workplace for legitimate work-related reasons wholly unrelated to illegal conduct. Instead, a public employer’s intrusion on the constitutionally protected privacy interests of a government employee for non-investigatory, work-related purposes, as well as for investigation of work-related misconduct, should be judged by the standard of reasonableness under the circumstances. Such an intrusion must be reasonable in its inception and in its scope.
a.) Ordinarily, a search of an employee’s office by a supervisor will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file.
b.) The search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct.
Special Needs (Drug Testing - In Schools)
As a condition of participation in athletics or other extracurricular activities, a school district may require its students to submit to a program of drug testing. A school district need not establish that it has a drug problem before adopting a testing program.
In determining the constitutionality of a school district’s drug testing program, a court should weigh the nature of the privacy interest allegedly compromised by the program, the character of the intrusion imposed by the testing and the nature and immediacy of the district’s concerns along with the efficacy of the drug testing program in meeting them. If, after consideration of these factors, the school district’s interests outweigh the privacy interests of affected students, drug testing in schools may proceed without a warrant and without individualized suspicion of drug use.
Special Needs (Drug Testing - In Workplace)
As a condition of participation in athletics or other extracurricular activities, a school district may require its students to submit to a program of drug testing. A school district need not establish that it has a drug problem before adopting a testing program.
In determining the constitutionality of a school district’s drug testing program, a court should weigh the nature of the privacy interest allegedly compromised by the program, the character of the intrusion imposed by the testing and the nature and immediacy of the district’s concerns along with the efficacy of the drug testing program in meeting them. If, after consideration of these factors, the school district’s interests outweigh the privacy interests of affected students, drug testing in schools may proceed without a warrant and without individualized suspicion of drug use.
Special Needs (Drug Testing - Patients in State Run Hospital)
Prohibits a state-run hospital from conducting drug tests and turning the results over to law enforcement without the knowledge or consent of patients, without a warrant or individualized suspicion of drug use.
While state hospital employees may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights
Special Needs (Searches in Jails/Prisons)
- Deference should be given to the judgment of the correctional officials in establishing policies designate to maintain safety and security in prisons and jails. Accordingly, a regulation impinging on an inmate’s constitutional rights must be upheld if it is reasonably related to legitimate penological interests.
- Inmates in prisons and jails—including those who are convicted and serving a sentence, those who are pretrial detainees, and those who are merely arrestees being held for minor offenses—have very limited privacy rights in their persons, cells, and communications.
a.) Authorities may subject inmates to invasive strip searches upon intake at a correctional facility or following contact with an outsider. Such searches may occur without individualized suspicion or a warrant.
b.) Inmates are entitled to no expectation of privacy in their cells, which may be searched at any time without individualized suspicion or a warrant.
c.) Authorities may monitor and record telephone calls and in-person conversations between inmates and outsiders, with the exception of those communications that are protected by attorney-client privilege. Such monitoring or recording may take place without individualized suspicion or a warrant.
Special Needs (Search Persons on Probation/Parole)
A condition of probation, an officer may, without a warrant, search the person, property, or residence of a probationer based upon reasonable suspicion of criminal activity.
As a condition of parole, an officer may, without a warrant and without any individualized suspicion of wrongdoing, search the person, property, or residence of a parolee. A released prisoner’s status as a parolee, along with a parole search condition, can so diminish or eliminate the parolee’s reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the 4th Amendment.
Note: Although the Supreme Court did not decide the issue, there are indications in United States v. Knight and Samson v. California that the Court would sustain a suspicionless search of a probationer if the probationer agreed to submit to such a search as a condition of probation
Terry “Stop and Frisk” (Stop)
- In a stop, a police officer uses physical force or a show of authority to briefly detain an individual for questioning or further investigation. Because the individual is not free to leave, a stop constitutes a seizure under the Fourth Amendment.
- Reasonable suspicion (judged by objective standard)
a. Must have reasonable suspicion of imminent or ongoing criminal activity. Police may also stop an individual upon reasonable that he is involved in/wanted in connection with a completed felony.
b. Police officer must be able to point to specific and articulable facts, along with rational inferences from those facts, that reasonably warrant the intrusion. As with probable cause, the totality of the circumstances should be considered in the determination of reasonable suspicion.
c. Reasonable suspicion can be based on an informant’s tip, even if the informant is anonymous. Any tip should, however, have sufficient indicia of reliability, such as predictive information, that would allow the police to test the informant’s knowledge and credibility.
d. A person’s presence in a high-crime area coupled with evasive behavior or unprovoked flight creates reasonable suspicion of criminal activity necessary to justify a stop.
- During lawful stop, police may require person to ID himself.
Terry “Stop and Frisk” (Frisk [Search])
In order to frisk a person who has been stopped, police must have reasonable suspicion that the person is armed and presently dangerous. The officer needn’t be absolutely certain that the individual is armed; the issue is whether a reasonably prudent person, in the circumstances, (objective in circumstances) would be warranted in the belief that his safety or that of others was in danger. Many factors that provide reasonable suspicion of criminal activity will also create reasonable suspicion that a person is armed and presently dangerous.
In order to “reach in” and seize a weapon, the officer must have reasonable suspicion that the item felt during the frisk is a weapon or could be used as a weapon.
In order to “reach in” and seize drugs or contraband, the officer must have probable cause that the item felt during the frisk is drugs or contraband. Or, in slightly different terms, it must be immediately apparent to the officer—based only on the quick exterior frisk, without any manipulation—that the item felt is drugs or contraband.
A stop/frisk must be reasonably related in scope to the circumstances which justified the stop/frisk in the first place. A stop should be no longer or more intrusive than necessary to confirm or dispel the officer’s suspicions of criminal activity, while a frisk should be no more probing or intrusive than necessary to confirm or dispel the officer’s suspicions that the person stopped is armed and presently dangerous.
