Arrest, Search, and Seizure (4th Amendment)

Warrant Requirement for All Searches, Unless an Exception Applies

The 4th Amendment of the U.S. Constitution provides that everyone should be free from unreasonable searches and seizures. Thus, a police officer will need a warrant to conduct a search and to seize items, unless a valid exception applies. In order for a search warrant to be valid: (1) there must have been probable cause (reliable information that it is likely that evidence of illegality will be found at a particular location); (2) the warrant must state with particularity the place to be searched and the items to be seized; AND (3) it must be issued by a neutral and detached magistrate. Evidence obtained without a valid warrant should be excluded unless it falls under the exceptions that permit a warrantless search and seizure.

Exception to Warrant Requirement: Administrative & Inventory Searches

Administrative searches (those that serve special needs distinct from the ordinary interest in law enforcement) DO NOT require a warrant. These include routine police inventory searches of a defendant's car or personal effects during booking procedures. To be valid, an inventory search must be both: (1) reasonable; AND (2) conducted pursuant to established police agency procedures (that are designed to meet the legitimate objectives of the search while limiting the discretion of the officer in the field).

Exception to Warrant Requirement: Consent

Consent is an exception to the warrant requirement if it is given freely, voluntarily, and intelligently. A third person with possessory rights of the property may consent to a search, but that person must have authority. If the police have reason to know that the person consenting might not have authority, and they continue the search, the search is unlawful. When two or more people share common authority over the residence or premises, any one of them may consent to a lawful search. However, a police officer may only search common areas of the residence and private areas of the person providing the consent. A warrantless search of private areas (i.e. bedrooms and locked areas) of persons that did not provide consent is generally unlawful.

Exception to Warrant Requirement: Exigent Circumstances

Exigent circumstances exist if: (a) the evidence is evanescent (the evidence would dissipate or disappear in the time it would take to obtain a warrant); (b) it's necessary to prevent the imminent destruction of evidence; (c) the police are in hot pursuit of a felon and the evidence is in plain view; OR (d) the emergency aid exception applies - to render emergency assistance to an injured person or to protect a person from imminent injury.

Exception to Warrant Requirement: Automobile Exception

The automobile exception allows a warrantless search of a car where the police have probable cause that either contraband OR evidence of a crime will be found in the vehicle. If there is probable cause, the police can search the entire vehicle AND any packages, luggage, or containers that may reasonably contain the items for which there is probable cause. In order to search a vehicle after a traffic stop, the police officer would need to acquire probable cause prior to searching the vehicle. A police officer DOES NOT need firsthand knowledge to have probable cause; it may be based on the first-hand knowledge of another.

Exception to Warrant Requirement: Checkpoints

The police may stop vehicles at checkpoints if the checkpoint: (1) is conducted in a nondiscriminatory manner (people are stopped at random); (2) for a purpose other than investigation of criminal activity; AND (3) is reasonable in scope. Routine sobriety checkpoints are NOT considered seizures under the 4th amendment, so long as they are administered in a nondiscretionary manner and do not detain individuals for an unreasonable period of time.

Lawful Arrests

Under the 4th Amendment of the U.S. Constitution, a person has the right to be free from unlawful searches and seizures by the government. Seizure under the 4th Amendment includes arrests. For an arrest to be proper, the police officer MUST have probable cause. Probable cause arises when the police officer (1) has trustworthy facts or knowledge, (2) sufficient to warrant a reasonable person to believe, (3) that the person committed a crime. If a police officer has probable cause to believe that a person has committed even a very minor criminal offense in his presence, he may arrest that person without violating the 4th Amendment. A police officer DOES NOT need firsthand knowledge to have probable cause; it may be based on the firsthand knowledge of another (i.e. an informant). If an arrest is conducted in a public place, probable cause is all that is required. However, a warrant is required if a police officer arrests someone in or at their home (unless exigent circumstances exist).

Request for Information, Stop and Inquire, & Stop and Frisk

Under the 4th Amendment of the U.S. Constitution, a person is granted protection from unlawful government searches and seizures. A seizure occurs when a reasonable person would have believed that he was not free to leave. The police may make a request for information anytime except on "whim or caprice." A police officer may stop and inquire if the police officer (1) has reasonable articulable suspicion, (2) that criminal activity is afoot. A stop and inquire allows only a brief detention for questioning, after which the suspect must be released. A police officer may only stop and frisk a person if the police officer (1) has reasonable articulable suspicion, (2) that criminal activity is afoot, AND (3) that the person has a weapon. Under the plain feel doctrine, a police officer may only seize items he or she reasonably believes is contraband or a weapon during the frisk. Reasonable suspicion is defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand. Courts use a sliding scale based on the particular factual circumstances to determine whether reasonable suspicion was present.

Fourth Amendment Right - Government Action & Standing

Under the 4th Amendment of the U.S. Constitution, a person is granted protection from unlawful government searches and seizures. Acts by private individuals are NOT protected by the 4th Amendment. In order to challenge a search or seizure, the challenging party MUST have standing. To have standing, the challenger must have a reasonable expectation of privacy regarding the item or place searched. Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess. The U.S. Supreme Court has extended this doctrine to permit an overnight guest to challenge a warrantless search in a home in which he was staying. However, courts have held that people DO NOT have a reasonable expectation of privacy in the following: (1) a paint scrapping taken from one's car; (2) a person's bank account records; (3) anything visible from public airspace; (4) garbage left on the curb; (5) the sound of one's voice; (6) odors coming from one's property; (7) one's handwriting; and (8) anything that can be seen in or across areas outside one's home.

Exception to Warrant Requirement: Plain View Doctrine

Under the Plain View Doctrine, the police may seize evidence without a warrant if (1) it is observed in plain view (with any of the five senses), (2) from a place the officer is lawfully permitted to be, AND (3) probable cause exists to believe that the items are evidence of a crime or contraband.

Government Use of Sensory Enhancement Technology

Whether government/police use of sensory enhancement technology constitutes a search depends on (1) the type of surveillance; (2) the type of information accessed; (3) the nature of the property; AND (4) the availability of the technology used. The use of sensory enhancement technology is deemed a search if (1) the technology is NOT in general public use; AND (2) the police obtain information about activities inside the home. The use of dogs to sniff out drugs is constitutional when used around an automobile, but is NOT constitutional when used around the home and surrounding property (the curtilage).

Exception to Warrant Requirement: Search Incident to Arrest

police officer who has probable cause to make an arrest can make a warrantless search incident to a lawful arrest. In this regard, he can search not only the suspect's person, but also areas within the suspect's "wingspan". If the suspect is arrested in an automobile, the "wingspan" includes the passenger's compartment. In addition, pursuant to a lawful arrest, a police officer can make a warrantless search of an automobile (or any containers found in the car) if he has reason to believe it contains contraband.