Exceptions to Warrant Requirement
Search and Seizure Issue #3: Exception to Warrant - Special Needs - General Rule
'Special needs' of law enforcement, governmental employers and school officials beyond a general interest in law enforcement
Search and Seizure Issue #3: - Is the warrantless search through which criminal evidence was gathered valid under any of the 8 exceptions to the warrant requirement?
8 Exceptions: ESCAPIST E - Exigent circumstances S - Search incident to arrest C - Consent A - Automobile P - Plain view I - Inventory S - Special needs T - Terry 'stop and frisk'
Search and Seizure Issue #3: Exception to Warrant - Terry Stops and Frisks: Terry Frisks and Seizure
A Terry frisk is a pat down of the body and outer clothing for weapons that is justified by an officer's belief that a suspect is armed and dangerous What can you seize in a Terry frisk? If, during a Terry frisk, an officer finds something she reasonably believes to be a weapon, it can always be seized. If, instead, the officer finds something she recognizes as contraband without manipulating the object she can seize it as well
Search and Seizure Issue #3: Exception to Warrant - Terry Stops and Frisks: Terry Stops
A Terry stop is a brief detention or 'seizure' for the purpose of investigating suspicious conduct Terry stops can take place anywhere
Search and Seizure Issue #3: Exception to Warrant - Terry Stops and Frisks: When are you 'seized'?
An individual is seized for Fourth Amendment purposes when, based on a totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer's request to answer questions In evaluating, you should consider: - whether the officer brandishes a weapon - the officer's tone and demeanor when interacting with the person questioned, - whether the individual was told she had the right to refuse consent
Search and Seizure Issue #3: Exception to Warrant - Inventory Searches
Commonly occur in two contexts: 1) Arrestees: when they are booked into jail 2) Vehicles: when they are impounded
Search and Seizure Issue #3: Exception to Warrant - Consent
Consent must be voluntary. For consent to be valid, police officers do not need to tell someone that she has the right to refuse consent. 'Apparent' Authority: If a police officer obtains consent to search from someone who lacks 'actual' authority to grant it, the consent is still valid under the Fourth Amendment, provided the officer reasonably believed that the consenting party has 'actual' authority.'
Search and Seizure Issue #3: Exception to Warrant - Terry Stops and Frisks: Ohio Notes
In Ohio, if an officer violates state law by conducting a traffic stop for a minor misdemeanor traffic offense outside of his jurisdiction, the stop is invalid and any evidence discovered as a result of the stop is inadmissible
Search and Seizure Issue #3: Exception to Warrant - Inventory Searches - Notes
Inventory searches are constitutional, provided: - the regulations governing them are reasonable in scope, - the search itself complies with those regulations, AND - the search is conducted in good faith; that is, it is motivated solely by the need to safeguard the owner's possessions and/or to ensure officer safety
Search and Seizure Issue #3: Exception to Warrant - Automobile Exception
Justification: Vehicles' ready mobility and individuals' lesser expectation of privacy in vehicles Standard: Police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle
Search and Seizure Issue #3: Exception to Warrant - Special Needs - Drug Testing
Most prolific 'special needs' category SCOTUS has approved warrantless, suspicionless drug tests in a variety of contexts, including: - railroad employees, following an impact accident - customs agents responsible for drug interdiction, AND - public schoolchildren who participate in any extracurricular activities
Search and Seizure Issue #3: Exception to Warrant - Special Needs - Drug Testing Notes
Parolees: Warrantless, suspicionless searches of a parolee and his home are permissible as a condition of parole School Searches: Warrantless searches of the person and the 'effects' of public schoolchildren are permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds, provided the search is reasonable at its inception and is not excessively intrusive, in light of the age and sex of the student and the nature of the infraction Government employees: Warrantless searches of government employees' desks and file cabinets are permissible, provided the searches are reasonable at their inception and in scope Border searches: Neither citizens nor non-citizens have any Fourth Amendment rights at the border, with respect to routine searches of persons and effects 'Non-Law-Enforcement Primary Purpose' Test: The 'special needs' doctrine does not include law enforcement programs or practices whose primary purpose is to gather criminal evidence for general use by law enforcement
Search and Seizure Issue #3: Exception to Warrant - Terry Stops and Frisk: Evidentiary Standards - Terry Stops
Reasonable suspicion, which is less than probable cause - How does standard apply in Terry stops? It requires specific and articulable acts that inform an officer's belief that criminal activity is present. An officer's subjective intent is irrelevant in evaluating the legality of the stop: the 4A is concerned solely with its objective reasonableness - How does the standard apply to Terry frisks? It requires specific and articulable facts that suggest that a suspect is armed and dangerous NOTE: A terry frisk is justified by a concern for officer safety ONLY; it is not a general search for criminal evidence - Can informants' tips satisfy this standard? Yes, provided the tip contains sufficient predictive information, corroborated by the police, to establish the informant's credibility
Search and Seizure Issue #3: Exception to Warrant - Consent: Scope
Scope of consent extends to all areas for which a reasonable officer would believe permission to search was granted
Search and Seizure Issue #3: Exception to Warrant - Search Incident to Arrest
The arrest (custodial arrest) must be lawful Timing: The search must be contemporaneous in time and place with the arrest Geographic scope: The wingspan, which includes the body, clothing, and any containers within the arrestee's immediate control without regard to the offense for which the arrest was made Contemporary developments: The Supreme Court now balances 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 government examples
Search and Seizure Issue #3: Exception to Warrant - Plain View
The three requirements for a seizure of an item in plain view: 1) lawful access to the place from which the item can be plainly seen, 2) lawful access to the item itself, AND 3) the criminality of the item must be immediately apparent
Search and Seizure Issue #3: Exception to Warrant - Terry Stops and Frisks: Traffic Stops
Three Important Principles: 1) In a traffic stop, both the driver and the passengers are seized, such that either can challenge the legality of the stop 2) In a traffic stop, the officer may, in his discretion, order both the driver and the passengers out of the car 3) Dog sniffs at traffic stops are permissible provided the 'sniff' does not prolong the stop
Search and Seizure Issue #3: Exception to Warrant - Exigent Circumstances
Three Types 1) Evanescent Evidence - Evidence that would dissipate or disappear in the time it would take to get a warrant. Note: The natural dissipation of alcohol in the bloodstream does not automatically create a sufficient exigency for warrantless BAC test 2) 'Hot Pursuit' of a Fleeing Felon - Hot pursuit allows police officers to enter the home of a suspect or a third party to search for a fleeing felon. During hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible 3) 'Emergency Aid' Exception - Police may enter a residence without a warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergency
Search and Seizure Issue #3: Exception to Warrant - Consent: Shared Premises
When adults sharer a residence, any resident can consent to a search of common areas within it. However, if co-tenants who are present on the premises disagree regarding consent to search common areas, the objecting party prevails, as to areas over which they share dominion and control. But, if an objecting co-tenant is removed for reasons unrelated to his refusal, the police may rely on the consent of the remaining, consenting co-tenant
Search and Seizure Issue #3: Exception to Warrant - Terry Stops and Frisks: Police pursuit and seizure
When being pursued by a police officer, an individual is seized ONLY if he submits to the officer's authority by stopping or if the officer physically restrains him
Search and Seizure Issue #3: Exception to Warrant - Terry Stops and Frisks: Protective Sweeps
When making an in-home arrest, police may 'sweep' the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety
Search and Seizure Issue #3: Exception to Warrant - Terry Stops and Frisk: Evidentiary Standards - Protective Sweeps
Whenever they are making an in-home arrest, officers have the authority, without probable cause or reasonable suspicion, to look in areas adjoining the place of arrest from which an attack could be immediately launched. Can have broader authority to sweep remote areas if additional facts indicate an individual who may threaten officer safety is present in the area swept
Search and Seizure Issue #3: Exception to Warrant - Automobile Exception: Notes
Where can police officers search? The entire vehicle and they may open any package, luggage, or other container that may reasonably contain the item(s) for which there was probable cause to search. Traffic stops and auto searches Sometimes what begins as a routine traffic stop results in a search of all or part of the vehicle. For the search to be lawful, an officer does not need probable cause to search the vehicle at the time the car is pulled over, provided he acquires it before initiating the search