Chapter 16: Warrantless Searches

Search of a vehicle with probable cause

*Officers may search a vehicle without a warrant ... IF there is probable cause to believe that the vehicle contains evidence of a crime, and IF the vehicle is in a public place.* The rationale for allowing warrantless searching of vehicles is: People have a lesser expectation of privacy in their vehicles than in their premises, and The vehicle's mobility would allow it to be driven away during the time needed to obtain a search warrant.

exceptions to the search warrant requirement (8)

1) Search based on exigent circumstances 2) Search of vehicle with probable cause 3) Plain view search and seizure of evidence 4) Consent search 5) Search incident to arrest 6) Search of abandoned property 7) Search of open fields 8) Suspicionless/administrative/"special need" searches

Consent search

A consent search of a person, his belongings, his vehicle, his home, etc. may be conducted..... If the person consents, and... If his consent is voluntary (not based on duress), and... If he is the owner or otherwise has legal control of the item or the place or the vehicle being searched. (A person in control of an item, e.g. the driver of a vehicle, can give valid consent to search if the owner is not present.) A person may choose to give consent to search his entire body, vehicle, house, etc., or may consent to a search of only a portion of his body, etc.

Search incident to arrest

A search incident to arrest may include: Search of the person being arrested, his/her clothing, bags, etc., and the area immediately around him ("lunging area"). Search of a vehicle, if the arrestee was in the vehicle at the time, and if it is reasonable to believe that evidence of the crime of arrest is in the vehicle. Arizona v. Gant (2009) The rationale for a search incident to arrest is to protect the officer and to ensure that the arrestee does not destroy evidence.

Plain view

An officer may make a plain view seizure of an item... IF the officer has a right to be at the place where he is when he views the item, AND... IF the officer has a right to be at the place where he is when he actually seizes the item, AND... IF it is obvious, without moving the item, that it is criminal evidence or contraband (i.e. something illegal such as certain drugs, or something illegally possessed such as a stolen item). The evidentiary nature of the item, not just the item, must be in plain view. The rationale is that an officer should not need to ignore criminal evidence that is obvious and immediately accessible.

Search of abandoned property

An officer may seize property which a person has abandoned. This includes trash IF it is thrown away beyond the curtilage of the person's premises (e.g. trash in garbage cans on a curbside off the person's property). Trash in containers within the curtilage is not considered abandoned. Items left in a home or hotel room after the resident has moved out also may be considered abandoned property and subject to police search

if a person consents to a search, can they opt out after the search begins?

Even after giving consent, a person may withdraw his consent. This will halt the search (unless evidence has been discovered which would provide probable cause for the search).

Exigent (emergency) circumstances

Officers may enter a home or other premise, without a search warrant, to provide assistance in a medical or criminal emergency. The scope of the search is limited by the reasons for the exigent entry. But evidence then seen in plain view inside the premises - see below - may be seized.

Search of open fields

Officers may search open fields, forests, etc., even if privately owned, IF the area is beyond the curtilage of the home. The courts have held that there is no reasonable expectation of privacy in these areas. This same rationale also is applied to air surveillance.

if you are arrested and your cell phone is seized, can the police automatically look at it?

The U.S. Supreme Court in Riley v. California (2014) held that when a cell phone or other such device is seized during an arrest, police must obtain a search warrant before searching the device. the search warrant must be enough to attribute probable cause to the crime committed A cell phone or other such device cannot automatically be searched as part of a search incident to arrest.

Suspicionless/administrative/"special need" searches

There must be a legally recognized practice of conducting these stops/searches, based on balancing a "special need" safety concern, against a minimal, non-arbitrary intrusion upon the individual. The constitutionality of these stops and searches is based on the reasonableness language of the 4th Amendment.

what is the key requirement for a search incident to arrest to even take place?

There must be an actual custodial arrest in order to conduct a "search incident to arrest." If an officer issues a citation or ticket, but does not make a custodial arrest, he cannot conduct a search incident to arrest. Knowles v. Iowa (1998)

how does a consent search if multiple people own the same property?

When multiple persons have rights to the same property (e.g. family members, co-owners, housemates, roommates, etc.), the consent of one may not be sufficient to justify a search or may be sufficient for a search of only parts of the property

following a search incident to arrest, what else can arrestees be required to do? what cant they?

can be required to answer booking questions, provide fingerprints, mug shots, etc. , provide a DNA sample. Maryland v. King (2013) , BUT cannot be required to take a blood test to determine BAC