Exceptions to the Warrant Requirement

A school search will be held to be reasonable only if:

(1) It offers a moderate chance of finding evidence of wrongdoing; and (2) The measures adopted to carry out the search are reasonably related to the objectives of the search; and (3) The search is not excessively intrusive.

Search incident to arrest & automobiles: the police may search the interior of the auto incident to arrest only if:

(1) The arrestee is unsecured and still may gain access to the interior of the vehicle; or (2) The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

A Denver police officer pulls over a car to give a speeding ticket. The car was stopped when the police officer noticed that the car, driver, and passenger fit a description just broadcast of people involved in the theft of auto parts. And then the police officer looks in the back seat and sees lug nuts, wrenches, and other things that suggest the theft of auto parts. The officers seize the auto parts and then search the trunk (without permission) and find drugs. Before trial, the defense counsel moves to suppress all evidence. The judge should rule that: (A) Both the auto parts and the drugs are admissible. (B) Neither the auto parts nor the drugs are admissible. (C) Only the auto parts are admissible. (D) Only the drugs are admissible.

(A) Both the auto parts and the drugs are admissible. The main difference between the automobile exception and SILA for automobiles is that for the automobile exception, the police can search the entire car. For SILA, they cannot search the passenger's compartment or the trunk.

Stop and Frisk

A Terry stop is a brief detention for the purpose of investigating suspicious conduct. The legal standard for stopping: reasonable suspicion. The reasonable suspicion standard is less than the probable cause standard. A Terry "frisk" is a pat down of the outer clothing and body to check for weapons.

Uninvited Ear

A speaker has no Fourth Amendment right if she makes no attempt to keep the conversation private.

Shocking Materials

Any act that "shocks the conscience" used to obtain evidence is unconstitutional.

Inventory Searches

Before incarceration of an arrestee, the police may search (1) the arrestee's personal belongings and/or (2) the arrestee's entire vehicle.

Evanescent Evidence

Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant. Example: A police officer can scrape under a suspect's fingernails without getting a warrant because if she took the time to get a warrant the defendant might go wash his 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).

Unreliable Ear

Everybody in this society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired, and, therefore, has no Fourth Amendment objection on the basis that it was a warrentless search.

Consent

For consent to be valid, the consent must be voluntary.

Wiretapping and Eavesdropping

General rule: All wiretapping and eavesdropping requires a warrant. Exceptions to the eavesdropping rule: "Unreliable ear" and "uninvited ear."

Hot Pursuit

Hot pursuit of a fleeing felon. Rule of thumb: If the police are not within fifteen (15) minutes behind the fleeing felon, it is not a valid hot pursuit exception.

Note for Consent

If a co-occupant who does not consent to a search is removed from the premises for a reason unrelated to the refusal (e.g., a lawful arrest), the police may search upon consent of the other occupant. Also note: anyone with apparent authority can validly consent to a governmental search.

Shocking Inducement

If a crime is induced by official actions that shock the conscience, any conviction stemming therefrom is unconstitutional. E.g, torture or threats against safety.

Stop and Frisk for Auto Stops

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) may search the vehicle, so long as it is limited to the areas in which a weapon may be placed.

Note on Stop and Frisk

If probable cause arises during an investigatory stop, the detention can become an arrest and the officer could then conduct a full search incident to that arrest.

Note for Hot Pursuit

If the police are truly in hot pursuit they can enter anyone's home without a warrant, and any evidence they see in plain view will be admissible.

Note for the Automobile Exception

If--but only if--before searching anything or anybody the police have probable cause, then they can search the entire car. This includes the entire interior compartment, and the trunk. Moreover, if there is probable cause, the police may open (without a warrant) any package, luggage, or other container which could reasonably contain the item they had probable cause to look for whether that package, luggage, or other container is owned by the passenger or the driver.

Note for SILA

In 2014 the Supreme Court held that the police, without a warrant, may not search digital information on a cell phone seized from an arrested individual. However, physical attributes of a cell phone may be searched (but not data).

The Automobile Exception

In order for the police to search anything or anybody and fall under the automobile exception they must have probable cause.

While on patrol in her squad car, Officer LaGuerta sees a car swerving across the center lane and driving erratically. The officer stops the car, and approaches the driver side window. The man in the car and the car itself reek of alcohol, and the man's speech is slurred. After administering a sobriety test (which the driver failed), the driver is arrested, handcuffed and placed in the back of the locked squad car. Officer LaGuerta then searches the man's car and finds drugs and an illegal handgun. Will these items be admissible at the man's trial?

Likely yes, Officer LaGuerta may have reasonably believed that evidence of the offense for which the person was arrested may be found in the vehicle.

Officers stop a man on reasonable suspicion, pat him down and feel something in his pocket. The officers reach inside and pull out evidence of a previous crime reported in the neighborhood - but not a weapon. Is this evidence admissible?

Likely yes. If the officer reasonably believes by plain feel that something is a weapon or contraband, then it will be admissible.

Same facts, but instead of drugs, the police have probable cause (from multiple reports) that stolen TVs are being sold out of the back of a van. Again, the officer stops the van, searches it, and finds a small, six (6) inch by six (6) inch box under the passenger seat. If the officer opens the box and finds drugs, will the drugs be admissible?

No, because here the 6x6 box couldn't reasonably contain TV's.

A police officer for no reason runs through the front door of your apartment and then sees the big pile of illegal drugs in plain view. Is this a valid exception to the warrant requirement?

No, even though it was in plain view, the officer was not legitimately present.

Defendant is lawfully arrested in Philadelphia at noon and the police later search him in Pittsburgh at 5 pm. Is this a valid search incident to arrest?

No, not contemporaneous in time and place.

While on patrol in a high crime area, police officers notice a man standing on the corner wearing a red bandana and red shoes (typical colors of the Bloods street gang). The officers pull over and observe the man for fifteen minutes and the man never moves from the street corner. Suspecting him of being a drug dealer, the police approach him and say they would like to ask him a few questions. The man says he needs to leave the area and refuses. If the police persist, is this a valid Terry stop?

No, not enough for reasonable suspicion.

The police come to your house and say, "We have a warrant. Do you mind if we look around?" You respond by saying, "Okay, go ahead." Illegal drugs are found in your house and you are arrested, but the warrant turns out to be invalid. Is the evidence still admissible because you consented to the search?

No, police saying they have a warrant negates consent.

(1) Does it matter that what was found during the search (the drugs and the illegal handgun) was different than what gave rise for the officer to search (the alcohol)?

No, so long as the search is valid, any contraband found will be admissible.

Opening International Mail

Permissible border searches include the opening of international mail when there is reasonable cause to believe that the mail contains contraband.

Public School Searches

Rule: Public school children engaged in extracurricular activities can be randomly drug tested. Warrantless searches of public school children's effects, such as purses and/or backpacks is permissible to investigate violations of school rules.

Search Incident To Arrest

The arrest must be lawful. If the arrest is unlawful then the search is unlawful. The arrest and search must be contemporaneous in time and place.

Geographic Scope Limitation: What can be searched?

The person and the areas within the person's wingspan.

Note 2 for the Automobile Exception

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.

Emergency Aid/Community Caretaker Exception

This exception justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public.

Plain View

To constitute a valid plain view seizure the police officer must be legitimately present at the location where he or she does the viewing of the item seized. It must be immediately apparent that the item is contraband or a fruit of the crime.

Third Party Consent

Where two or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one person consents to the search and the other does not consent, then the one who does not consent controls.

(2) What if the car didn't reek of alcohol and was a straight DUI arrest? Would the officer have grounds under prong #2 of Gant to search the interior of the vehicle?

Yes and no. Depends on the jurisdiction. This issue should not come up on the bar exam.

While on patrol in their squad car, Officers Ponch and John observe a car speed past them going well over the posted speed limit. Ponch approaches the driver side window and asks for the driver's license and registration. While pulling out his license, a bag of crack cocaine and a pipe falls out of the man's pocket, which Ponch observes. Ponch asks the driver to step out of the car and then informs the driver that he is under arrest. While reading the driver his Miranda rights and attempting to handcuff him, the man breaks free and runs off. Officer Ponch chases after him. Officer John, now with bad knees, does not join the chase, but instead searches the driver's car. Officer John finds recently stolen jewelry under the passenger seat. Is this a valid search incident to arrest?

Yes, because the arrestee is unsecured.

The DC police have over 30 reports that drugs are being sold out of the back of a car. The police know everything about the car, the make, the model, the license number but they know nothing about the drug seller. A DC police officer, aware of the 30 reports, sees the car go by driving at a lawful speed. The officer stops the car, but he does not arrest the driver. He orders the driver out of the car and searches the car. The officer finds a box under the passenger seat, opens the box and finds drugs. Will the drugs be admissible?

Yes, because the officer had probable cause due to the 30 reports.

Officers stop a man on reasonable suspicion, pat him down and feel something in his pocket which has the same shape as a gun, and in fact it turns out that the object is a gun. Is the gun admissible?

Yes, so long as the stopping is reasonable and there is a reasonable belief the man might be armed and dangerous.

A cab driver with a police scanner in his cab hears the broadcast of a fleeing felon on the scanner. The cab driver sees the person matching the exact description run into a house. The cab driver calls the police, and they arrive about eight (8) minutes later. The police enter the house without a warrant and find a gun and a whole bunch of bloody clothes--all linking the guy to the crime. Is the evidence admissible?

Yes, the hot pursuit exception to the warrant requirement applies.

NY police officers observe two teenage boys pushing a baby carriage down the street at midnight, and they notice that where the baby was supposed to be, there was a computer terminal. When the boys see the officers, they quickly turn in the opposite direction and speed up their pace. Can the police lawfully stop the boys?

Yes, there is reasonable suspicion to make the stop.