Exceptions to Warrant Requirements

Exigent Circumstances/Hot PursuitEvanescent Evidence

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Protective "Sweep"(REVIEW)

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Search Incident to Arrest (SILA)

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WHat are the requirements for consent?

1. Consent must be voluntary 2. Search must conform to scope of consent 3. The person consenting must have authority

Exceptions to Warrant

1. Plain View 2. Regulatory /Administrative 3. Arrest (search incident thereto) 4. Inventory 5. Sweep (protective) 6. Evanescent 7. Consent 8. Crime (committed in officers presence) 9. Automobile 10. "Stop and Frisk" 11. Hot Pursuit / Exigent Circumstances

Bostick

"Consent that is the product of official intimidation or harassment is no consent at all." "The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation. The cramped confines of a bus are one relevant factor that should be considered in evaluating whether a passenger's consent is voluntary." (but is not dispositive)

Buie

"Protective sweep" - a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officer or others This is a "cursory sweep" following and "in home arrest" to look for "people" Scope: limited to places where people might be hiding "NOT AUTOMATIC" But may be conducted only when jusified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.

5 Major 4th Amendment Issues 5 Big Steps with a few little steps within....

1. Was there a search/seizure? 2. Was it reasonable? (What requirement to be reasonable?) 3. Compliance - Warrant, if required, i.e. not an arrest in public (everything else needs a warrant - I know you're thinking exceptions, but that is the next step) 4.See if any of the Exceptions apply. If an exception applies, you're good to go, stop here. If an exception does not apply, move on. 5. Remedy- exclusionary rule and fruit of the poisonous tree

What did the court say In upholding "reasonable belief"

In upholding "reasonable belief" the court noted: -Officer's need only be "reasonable, not correct. -Must use an "objective standard" -What a reasonable person accept as true, without further investigation Would the facts available to the officer at the moment..."warrant a man of reasonable caution in the belief" that the consenting party had authority over the premises? If so, the search is valid.

Search Incident to Arrest: Automobile Review

Includes passenger compartment Includes containers open or closed - regardless to ownership/ includes glovebox How is this different from a "frisk" of a car under Terry? Only if the passenger compartment in D's immediate reach Does not include trunk (hatch, o.k.) Does Terry include the trunk? Think about the standards that had to be met.

Landlords, Tenants & Co-tenants Consent?

Landlords, Tenants & Co-tenants Landlord cannot consent to search of tenant's place Management cannot consent to hotel room search Co-tenant can consent if equal right of access UNLESS co-tenant present and objects Non-paying guest?owner's consent binding even if guest objects (look to circumstances for items within room)

Minnesota v. Dickerson

Minnesota v. Dickerson: Concept of Plain Feel Doctrine - Cannot manipulate the item - Has to be "immediately apparent" to constitute probable cause that object is evidence of crime

Exigent Circumstances

No warrant required if exigent circumstances exist Need PC Officers may even enter a person's home, but still need PC + exigency Rationale: In the time it would take to get a warrant, some harm might occur that results from "hot pursuit", or harm to officers or others or the risk of destruction of evidence.

Plain Feel doctrine

Officer conducting frisk may seize any evidence he "feels" during frisk if he has probable cause to believe, based on pat down only, that it's contraband Cannot "Manipulate"Item Felt APPLIES TO OTHER SEARCHES AS WELL

Does the person have to know he has a right to refuse the search for the consent to be voluntary?

Person does not have to know he has right to refuse search, but knowledge of right is one factor considered Schneckloth v. Bustamonte

Does a person need to be told that they are free to go for search to be voluntary?

Person does not need to be told they are "free to go" before a consent to search may be deemed voluntary.

Does personal characteristics of the suspect have a significant effect ob ability to consent voluntary?

Personal characteristics of searched suspect must have significant effect on ability to consent voluntarily Examples: minimal schooling low intelligence low age illiteracy substance abuse emotional state difficulty w/English language

Exceptions to Warrant Requirement

Plain View Regulatory /Administrative Arrest (search incident thereto) Inventory Sweep (protective) Evanescent Consent Crime (committed in officers presence/public arrest w/ PC) Automobile "Stop and Frisk" Hot Pursuit / Exigent Circumstances

Plain view exception

Plain view - Object in Plain View -Seen from where officer has a right to be / and officer has right of access to it -Immediately apparent to be evidence of a crime, i.e.probable cause

Automobile exception?

Review: PC to search- PC that vehicle contains evidence of crime or contraband Ready mobility (consider factors) No exigency requirement Can search anywhere within car w/ pc - passenger compartment, trunk, gas tank, under hood, containers (regardless of ownership) Justification: mobility of vehicles and the reduced expectation of privacy associated with use of public roads, regulation, most contents in plain view Is the automobile exception limited in time or scope? What about an inventory search? Terry? SILA? Plain View? What if you walk away from Plain View and send the guy on his merry way, what would you need then? Is it going to be hard to prove PC as to place to be searched? What is the justification for Plain View?

Can administration consent to dorm room search?

Schools and Students Administration cannot consent to dorm room search (Devers); high school administration can consent to locker search

Scope

Scope As broad as reasonably necessary to prevent dangers that suspect may resist arrest or escape Any location which might hide suspect & accomplices as well as contain weapons Must enter to search for him and then can also search for weapons therein which he might seize Can also tag on plain view once officer is rightfully on premises Scope of search must be strictly circumscribed by exigencies justifying its initiation

SILA

Search must be done prior to or contemporaneous with arrest of suspect If after arrest, then use search incident to arrest exception If suspect not there, police must immediately leave

Situation where the exception is applicable?

Situation where the exception is applicable: Public or Police Safety Person inside in need of immediate aid Where waiting to obtain warrant would gravely endanger the police or lives of other people To see if other victims or killer is on premises Hot pursuit: doesn't include a minor crime to prevent imminent escape of suspect To prevent imminent destruction of evidence

Terry

Terry - Stop is a Seizure w/in 4th Amendment - Frisk is A Search w/in 4th Amendment - Need reasonable articulable suspicion of criminal activity and dangerousness Scope: pat down of outer clothes

Search Incident to Arrest: Automobile "Knowles"

The "search incident to arrest" exception is only applicable if the suspect is "arrested" (a full custodial arrest). Only then is the rationale for allowing the search truly applicable.

Georgia v. Randolph

Whether a search and seizure is valid when a person having "common authority" over a premises consents to the search, but the person against whom the evidence is later being admitted is present and expressly refuses to grant consent? No, it is not.

Johnson

Whether the consent was freely and voluntarily given, given the fact that D was under arrest and handcuffed at the time of giving the consent? When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was in fact, freely and voluntarily given. It is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced.

What are some factors to determine if consent is valid?

informing no need to consent threatening to do something c/not do verbal threats may be enough Jones v. Unknown Agents of FEC guns drawn number of officers personal characteristics of searched suspect Mendenhall

Requirements for Exigent Circumstances

must be non-minor offense Welsh v. Wisconsin pursuit must be "immediate and continuous" reason to believe suspect entered particular premises must believe suspect will escape or harm others or that evidence will be destroyed

Destruction of Evidence

narrowly construed evidence must be highly "evanescent": fleeting, vanishing, tending to become imperceptible, disappearing, fading away OK where possibility of future destruction sufficiently great that taking time to procure warrant would be unreasonable usually narcotics related used especially where can show suspect is aware of surveillance; aware "heat is on" (dissent in Brady)

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3P authority cannot be inferior to owner/possessor e.g. landlord or hotel clerk c/not authorize search even though they have limited access to premises

3. Consent: Authority to Consent

3rd Party may give consent if they have common authority or joint access and control Home owner consent for overnight guest's room? Limited in scope to areas within premises where consenter had joint access Good Faith Exception to consent: If the police reasonably believe the person has "apparent authority" to consent, the search is valid What might affect the reasonableness of this belief? The 3rd party's consent is not valid if the person against whom the evidence is later admitted is present and expressly objects to the search. Randolph

Must the discovery of the seized evidence be inadvertent?

3rd requirement, inadvertence, eliminated "The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of the warrant or a valid exception to the warrant requirement." (Horton; see also Whren v. U.S.)

Arizona v. Grant

A search of a car incident to arrest may occur only when: The interior of the car is actually accessible to occupant OR 2) Reasonable to believe vehicle contains evidence of offense of arrest See also State v. Hernandez (LA)

Search of Automobile and Scope

Frisk of Vehicle - Long - No arrest Justification: Weapons Scope: Passenger Compartment Search incident to arrest- vehicle -Belton Weapons and Evidence Scope: Passenger compartment, containers (open or closed) Automobile Search PC and mobility Scope: Anywhere the subject of search may be: trunk, gas tank, tires, containers- regardless to ownership Inventory Search Legitimate inventory search to protect property and to protect against false claims of lost or stolen property Scope - reasonable as where property may be- regulations

Bond v. United States

Bond v. United States Facts: Border patrol agents boarded bus on which D was traveling. As they passed down the aisle feeling luggage located in the overhead storage, officer felt something hard in bag owned by D. After D admitted ownership, he opened it up and officer found a "brick" of methamphetamine. D indicted and filed a MTS arguing the officer had conducted an illegal search. Did the D manifest a reasonable expectation of privacy? Court found that D had and that therefore this was a search and since no warrant or exception, then the search was unreasonable.

What can you do to obtain plain view?

Can use illumination,can change position, bend at an angle, etc.

Carney

Carney: Applying the rationales for the automobile exception 1) ready mobility; and 2) reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a rang of police regulation inapplicable to a fixed dwelling - the court held that the "automobile exception" was applicable to the motor home.

Claims of authority to search

Claims of authority to search Coercion is inherent in announcement of authority to search

Is consent valid if the officer asserts a False claim that officer has search warrant?

Consent is invalid Bumper v. North Carolina True even if officer has warrant but it later turns out to be invalid

What are the requirements for consent to be voluntary?

Consent is voluntary as long as it is not the product of duress or coercion, express or implied Cannot be coerced by explicit or implicit means, by implied threat or covert force Totality of Circumstances Factors: state of mind of consenter, knowledge of right to refuse consent, whether given Miranda rights, whether arrested or not Why does arrest matter? How is consent affected if you're arrested?

Consent Exception

Consent must be voluntary Whether the search conforms to scope of consent Whether the person consenting has authority

2. Search must conform to scope of consent

Consent: Scope - Scope may be limited - Search must conform to scope - Police can search anything within the scope Usually limited to what consented to; cannot be broader Once area defined, can search any articles objectively reasonable for officer to believe consent allows; Look to what consentor thinks police looking for

Search Incident to Arrest: Automobile

Court: "We hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident that arrest, search the passenger compartment of that automobile. It follows from this conclusion that the police may also examine the contents of any container found, within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within h is reach. Such a container may, of course, be searched whether it is open or closed..." This exception does not include the trunk No application if arrestee has been handcuffed and removed from the scene- where he could not reach into vehicle (Hernandez)

Exigent Circumstances/ Evanescent Evidence

Evanescent Evidence: Vanishing or evaporating type evidence Used seldom as an exigent circumstance Factors: PC that evanescent evidence inside Specific articulable facts that evidence will be destroyed or removed prior to obtaining warrant Circumstances of destruction cannot be avoided nor has been created by the police Danger to police while guarding site Information that possessor of contraband is aware that officers on the trail.

What are womb factors to be considered to determine if the automobile exception applies

Factors to consider if a vehicle (subject to automobile exception) or a home: 1. mobility 2. location; if it's on blocks, etc. 3. connected to utilities 4. convenient access to a public road 5. licensed to move

Rodriguez consent authority

Facts: Gail Fisher called the police from her mother's house and reported that her boyfriend had beat her up that day. The police arrived and she took them to the residence where her boyfiriend (D) was alsleep which she referred to as "our apartment." She opened the door with her key and let the police in where the police found drug paraphernalia that was used against D in trial. The 4th Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share authority of the area in common with a co-occupant who later objects to the use of evidence obtained."

Schneckcloth Consent "Voluntary"

Facts: Police stopped vehicle for a traffic violation and driver was unable to produce ID. Evenually a passenger was able to produce ID and claimed that the car belonged to his brother. The police asked him if he could search the vehicle, to which he agreed. Police found evidence of a crime used against D " We hold only that when the subject of a search is not in custody and the State attempts to justify a seach on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subjects knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establish a voluntary consent. May conduct search when there is no PC State does not have to prove that D affirmatively knew he could refuse:

Exigent Circumstances/ hot pursuit

Hot Pursuit For police to stop in the middle of a chase to get a warrant could allow suspect to get away, destroy evidence or to create a dangerous situation for police or members of the public. - Suspect must be aware that he is being pursued - why is this necessary? How does the exigent circumstance if the suspect does not know he is being pursued?

Can spouses and parents consent?

Husbands, Wives, & Lovers usually consent by them is valid unless it's other person's personal effects or done for retaliation purposes Parents & Children generally, parent can consent for child but not vice versa

Good Faith Exception

If person did not have joint authority, search may still be OK if officer acted reasonably. Test: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?

Arizona v. Hicks

In this case, since it was not "immediately apparent" that the stereo was evidence of crime or contraband, the "plain view" exception does not apply. Since this was a search w/o a warrant and not exception to the warrant requirement was applicable, the search was unconstitutional and the evidence is inadmissible.

Search Incident to Arrest: Home Chimmel v. California

There is no justification for routinely searching any room other than that in which an arrest occurs - or for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Facts: Officers went into petitioners home to arrest him on a warrant. Subsequent to the arrest officer looked around entire house including attic, garage, workshop, in drawers, sewing room, etc. and seized evidence later used against D at trial. Issue: The permissible scope of a search incident to a lawful arrest. Here the search went beyond the suspect's person and the area from which he might have obtained either a weapon or something that could have been used as evidence against him. The scope of the search was therefore unreasonable. Search is automatic!!!!

Automobile excpetion

This exception not based on danger to the officer, but upon probable cause that vehicle contains evidence of crime or contraband PC to search v. PC to arrest Carroll v. United States - first case to recognize the exception Allows officers to search the passenger compartment, trunk, engine compartment, under, inside closed containers (including the gas tank) - with probable cause to believe vehicle has evidence of a crime. Applies to all cars, vehicles, buses, trains,

Inventory search

Warrantless inventories of persons taken to stationhouse and impounded automobiles are OK on regulatory grounds These searches are based on special needs beyond law enforcement and are justified as administrative searches To protect property of arrestees, to protect themselves against claims of lost or stolen property Decision to impound based on other than suspicion of evidence of criminal activity Must be conducted pursuant to regulation (statute or department policy and procedures) which control police discretion If you conduct a valid inventory search, can you utilize the Plain View Exception to seize incriminating evidence? Is there a time or scope limit on inventory searches?