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Search Warrant Exceptions Ted Belling
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One of the most significant expressions of
police power and authority over a citizen is the execution of a search of that
citizen’s person or property. The unchecked government intrusion into the
personal effects of any citizen was abhorrent to the founding fathers of this
country. Because of this, the Fourth Amendment to the United States
Constitution was written:
“The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.”
These words are the bedrock on which all
statutory and case law involving searches is based. Statutory law is the
codified law passed by the lawmakers at different levels of government. These
laws allow legislative control and oversight of the law enforcement officers in
their jurisdictions in regards to the Fourth Amendment. These laws primarily
deal with the practical application of the Fourth Amendment (Form and wording
of search warrants, manner of obtaining and executing search warrants,
procedures for obtaining telephone warrants, etc.). Case law is law established
through judicial decisions. A judge interprets the statutory and Constitutional
laws and applies these laws to infinitely variable real life situations.
Because of the difficulties created by these variables, there is a large volume
of case law that has been established to deal with them. Many of these cases
establish exceptions to the Fourth Amendment requirement of a warrant. It is
fairly easy for police officers to understand and follow the statutory law.
Officers, however, have a much harder time understanding and applying case law
to the work they do in the field, especially, when dealing with the exceptions.
Every time a court creates new case law, the
court gives a detailed reasoned explanation for the decision. It is very
important that police officers learn the reasoning the court applied when it
rendered its decision. It is within this reasoning that the officers find the
tools they need to make proper decisions in the field. As I mentioned earlier,
the courts craft their decisions not just to address the case at hand, but to
try and provide a reasonable solution to all the other variables that can
affect similar situations. The thread of reasoning used in the precedent case
will generally be followed throughout all subsequent cases of similar law.
Now that I have you totally confused, let me
explain what I mean by all this. Each time a court hears a case and renders a
decision, the decision only technically applies to that case. Logic, however,
tells us that the court will be consistent and render the same decision in
similar cases. Therefore, if a court rules that a particular action by an
officer violated someone’s Constitutional rights, any officers that repeat this
action will also be in violation.
It seems like a simple thing to understand
and apply the Fourth Amendment. The officer must have probable cause that
evidence is in a particular place. The officer swears out a warrant before a
judge. The officer then serves the search warrant and finds the evidence. The
realistic application of the Fourth Amendment, however, is far more
complicated. The practical application of the Fourth Amendment, as written,
only works in certain situations. The one place, for example, where the courts
have held sacrosanct is the home. Barring exigent circumstances or consent, a
search warrant is required to search a person’s home.
In many other situations,
however, it was clearly unreasonable to strictly apply the Amendment.
Therefore, exceptions were made.
There are basically thirteen exceptions to the warrant requirement under the Fourth Amendment. They are:
1. Exigent circumstances
are situations where immediate action is necessary. If the officer takes
the time to get a warrant, evidence will be destroyed, life could be lost, or
the suspect could escape. It is time consuming to get a warrant. First, the
officer has to get the physical description of the place to be searched. A
detailed affidavit, describing all the elements required by the court including
the probable cause information, has to be crafted. In many jurisdictions, the
District Attorney’s office has to review the affidavit. A judge then has to be
contacted for his approval and signature. During normal business hours, this
can take two to three hours. At night, or on weekends or holidays, this can
take much longer. The Ninth
Circuit Court in the case of
Emergency
conditions. 'Those circumstances that would cause a reasonable person to
believe that entry (or other relevant prompt action) was necessary to prevent
physical harm to the officers or other persons, the destruction of relevant
evidence, the escape of a suspect, or some other consequence improperly
frustrating legitimate law enforcement efforts.'
Common sense clearly dictates that if
someone’s life was in danger, any delay increases the likelihood life will be
lost. It is unreasonable to put an officer in the position of choosing between
saving a life, and bringing the perpetrator to justice. The officer will always
choose saving the life. If the courts mandated that even under these
circumstances a warrant must be obtained to properly retrieve and use evidence
against the defendant prior to entering his residence, the “exclusionary rule”[1]
could literally cause the defendant to get away with murder.
The practical application of exigent
circumstances is that the officer can enter a home or business without a
warrant. The officer is limited to taking steps in ending the emergency. The
officer can retrieve and secure any evidence found in plain view, but cannot
conduct a full search. Once the situation is stabilized, the officer is
required to obtain a search warrant to continue searching for evidence.
The following cases illustrate exigency.
Under most circumstances, officers are able to conduct drug investigations with
enough secrecy that the suspect is not aware of a pending police search. Search
warrants are obtained in compliance with the Fourth Amendment. When a police
officer, however, inadvertently discovers probable cause that drugs are in a
house, and the suspect is aware of this, the officer may have exigency to enter
the residence without a warrant. In the case of
US
v. Cephas,[2] a police
officer knocked on Cephas’s door. When Cephas opened, the officer smelled the
odor of burning marijuana coming from the residence. Marijuana is an easily
destroyed drug. It can be ingested, burned, flushed, or washed down the sink.
If the officer had left to obtain a search warrant, it would be very likely the
officer would find no evidence upon returning with the warrant. The officer,
therefore, had an exigency to enter the residence and secure it. The officer
found some marijuana in plain view. A search warrant was obtained. Further
drugs and guns were found. The Sixth Circuit Court applied the same reasoning
in the case of US v.
Carter.[3]
The situation was similar, except that Carter was in a motel. The officer
smelled burning marijuana coming from the room. He entered and found evidence
in plain view. Further, the Tenth Circuit Court ruled that an odor of a
methamphetamine lab justified the warrantless entry of a residence because of
an explosion risk, US
v. Rhiger.[4]
2.
Stop & Frisk, also known as a “Terry Stop”, is a search warrant exception allowed
solely for officer and bystander safety. The case of
Terry
v. Ohio[5]
deals with two separate issues. The first involves the legality of the
officer’s seizure of the suspect. The second deals with the officer’s authority
to submit the suspect to a pat search without a warrant. In the “Terry” case, a
3.
Search incident to
arrest goes beyond a “frisk” or “pat”
search. A search incident to arrest is the thorough search of the suspect and
his immediate area conducted contemporaneous to the arrest. The purpose of this
search is to look for means to escape, prevent the destruction of evidence, and
to secure any weapons. There has been some controversy over the search of a
suspect’s vehicle incident to arrest. Many courts have ruled that a search
incident to arrest of a suspect’s vehicle is allowed if conducted
contemporaneous to the arrest. Other courts, however, have ruled that a search
incident to arrest of the suspect’s vehicle is not justified if the suspect is
secured in the patrol vehicle. These courts have reasoned that a suspect could
not possibly escape from the patrol vehicle, get to his vehicle, and obtain a
weapon or destroy evidence. The United States Supreme Court settled this
controversy in the case of
New
York v. Belton.[6]
The court felt that simple bright-line rules should be established for the
courts and officers to follow on when a search of a vehicle incident to arrest
could occur. The court established that a search of a vehicle incident to
arrest could occur under the following conditions:
·
There was a
lawful custodial arrest.
·
The search was
contemporaneous to the arrest.
·
The arrestee was
an occupant of the vehicle just before the arrest.
·
The search is
limited to the passenger area of the vehicle.
The
court expanded on these conditions in the case of
Thornton
v. U.S.[7]
The court said that the suspect did not have to be in the vehicle, but be in
"close proximity, both temporally and spatially," for the search to
be reasonable.
4. Custodial search is the search of a person’s property after he has been arrested and
submitted for detention. This type of search is an administrative search done
for the purpose of inventorying and securing the personal effects for
safekeeping. Although evidence is often found during a custodial search, this
is not the primary reason for it. The goal is to protect the officer and the
employer, as well as the owner of the property in case theft or damage occurs
or false allegations are made. Therefore, there is no Fourth Amendment
violation. The same reasoning applies to the custodial inventory of a vehicle
when impounded by an officer,
U.S.
v. Edwards.[8]
5.
Plain view is fairly self-explanatory.
Any item that an officer has probable cause to believe is associated with
criminal activity that he sees in plain view can be seized without a warrant.
Although this is simple to understand, several circumstances over the years
needed judicial clarification. One of the earlier cases was
United
States v. Lee.[9]
The court in this case said that police can use spotlights and binoculars to
enhance their ability to observe evidence. There is also no Fourth Amendment
violation to observe something that is visible to the naked eye while traveling
in an airplane or helicopter in public airways, California
v. Ciraolo.[10]
The police are further allowed to use vision enhancement equipment as long as
it is accessible to the public, Dow
Chemical Co. v. United States.[11]
The
undercurrent to these cases that is important to understand is that the officer
must be in a place that he has a lawful right to be when the evidence is
observed. All the cases so far have dealt just with the observation of
evidence. What happens if the officer manipulates the item observed to determine
if it is evidence by picking it up or moving it? As I mentioned earlier, the
officer must have probable cause to believe the item is associated with
criminal activity. If he has probable cause, he is permitted to manipulate the
item, i.e. look at the serial number. Curiosity or reasonable suspicion is not
enough to move the item, Arizona
v. Hicks.[12]
The main points to remember when a plain view situation occurs are:
·
The officer must
have a lawful right to be where the item is viewed.
·
The officer must
have probable cause to believe the item is associated with criminal activity.
6. Vehicle searches-The
advent of vehicles such as automobiles and airplanes did not create a unique
situation for the United States Supreme Court. The court recognized historical
facts that extended to the beginnings of this country to rely on in addressing
Fourth Amendment search warrant concerns over these types of vehicles. The very
Congress that proposed and adopted the amendments to the U.S. Constitution
recognized a difference between the search and seizure of stolen or forfeited
goods, or goods subject to a duty, and the personal effects searched or seized
for evidence. There have been numerous statutes enacted by Congress through the
history of this country that allow for the warrantless search of ships, boats,
wagons, vessels, and other means of transportation for contraband goods. All of
these statutes withstood judicial scrutiny. The Congress and courts recognize
that the inherent mobility of these vehicles allows them to quickly move beyond
jurisdictional boundaries, and escape the enforcement of a search warrant. The
citizens of this country, however, would find it reprehensible for an officer
to stop and search their vehicles without justification. The United States
Supreme Court addressed this issue in the case of
Carroll v. U.S.
[13]
The court ruled that a warrantless search of a vehicle stopped in transit could
be searched without a warrant if the officer had probable cause to believe the
vehicle was transporting contraband or evidence.
In the Carroll case, the search was conducted
at the scene contemporaneous to the stop and the subsequent development of
probable cause. Does the warrant exception continue if the vehicle has to be
moved to a different location for the search to occur? In the case of
Chambers
v. Maroney,[14]
police officers stopped a vehicle and arrested the occupants for armed robbery.
The vehicle was moved to the station for the search because it was safer and
better illuminated there. The court decided that, if the officers had probable
cause to search at the scene, it was reasonable for them to move the vehicle to
the station for processing. The officers did not need a warrant to search the
vehicle after it was moved. This action was reaffirmed in the case of Texas
v. White.[15]
The court further added in the case of
United
States v. Ross[16]
that the search conducted could be as thorough as a search authorized by a
search warrant. These cases turn on the facts that the vehicle was stopped on
traffic upon which probable cause was established, and the vehicle was kept in
police possession until the search.
What if probable cause was developed during
the inventory of a vehicle impounded for safekeeping? In the cases discussed up
to this point, the United States Supreme Court has allowed the warrantless
search of vehicles stopped on traffic based on probable cause because of their
mobility. The probable cause was developed prior to the police taking the
vehicle into custody. An impounded vehicle has been taken into police custody.
If probable cause is developed after this point, is a search warrant required
to search the vehicle? A police officer, for example, finds illegal drugs in
the vehicle during the inventory. He can conduct a search of the vehicle
without a warrant. There is no Fourth Amendment violation,
Michigan
v. Thomas.[17]
Further, if the officer has probable cause, the vehicle can also be searched
after it has been secured in the impound yard,
Florida
v. Meyers.[18]
7. Border searches
consist of the inspection of persons, conveyances,
and goods passing through the borders of the
8. Open fields are not protected under the Fourth Amendment. The Fourth Amendment only protects "persons, houses, papers and effects,” Hester v. US.[20] Open fields do not fall within any of these categories. What does “open fields” exactly mean? Open fields encompass any open, undeveloped property that is not intimately used for dwelling (including curtilage) [21] or business. The status of an open field does not change even if a fence secures the property and “no trespassing” signs are erected, Oliver v. United States.[22] If a police officer suspects that there is marijuana being grown, a whiskey still in operation, stolen vehicles being stored, etc. in the wooded area of a farmer’s back forty acres, he can walk out there and look without a warrant.
9. Abandoned property
is
any property in which the
owner relinquishes possession. When the property is abandoned, the owner no
longer has any expectation of privacy over that property as protected by the
Fourth Amendment. This is constructively done when the owner leaves the
property unsecured in a public place, or takes any other measures to surrender
ownership. Abandoned property that is rendered accessible to other members of
the public is equally accessible to the police. When a suspect flees from the
police and throws down a bag of illegal drugs, the drugs were abandoned. When a
person leaves a satchel on a park bench, it is abandoned. A resident that
removes trash from the curtilage of the residence and places it by the curb no
longer has a privacy interest in it,
California
v. Greenwood.[23]
10. Consent searches
are conducted with the express permission of the owner or person with custody
and control of the item(s) searched. When a person gives consent to search, he
forgoes his right to require the police to obtain a search warrant. Although a
police officer may seek consent to search, it must meet certain requirements.
The main requirement is that the consent must be voluntarily given. The officer
does not have to advise a person not in custody of the Miranda warnings,[24]
or tell the person that he could refuse the consent. The court, however, will
take into consideration these and all other facts in determining if the consent
was voluntary,
Schneckloth
v. Bustamonte.[25]
The court will side with the defendant if
the officer coerces consent, such as falsely asserting his authority by
claiming he possessed a search warrant,
Bumper
v. North Carolina.[26]
An officer can obtain a verbal consent
without any documentation or recording. This, however, is unnecessarily risky.
A police officer’s word carries weight with the court, but unforeseen events can
occur that may lessen this weight, clouding the officer’s veracity. Many times
this happens, not because of officer mistakes, but because of good lawyering,
leading to the exclusion of evidence. The officer should use as much ammo as
possible to strengthen the case against the defendant. When obtaining consent
to search, use a well-crafted consent to search form when possible. A properly
crafted form greatly bolsters the establishment of voluntariness.
When asking a person to give consent to
search, it is the responsibility of the officer to determine certain things.
The officer first must establish that the person giving consent has the
authority to do so. The person must be the owner of the item, vehicle, or
location being searched, or have legitimate custody and control. The person
must also possess a level of maturity and mental ability to understand the
nature and consequences of giving consent. If the person due to immaturity or
mental illness cannot be held criminally responsible, then consent from this
person probably would not be considered voluntary.
11.
Administrative searches are warrantless inspections generally of
businesses that need to be closely regulated. Examples of these types of
businesses are nursing homes, restaurants, junk yards, nuclear power plants,
etc. The state and/or federal government has substantial interest in how these
businesses are operated. For administrative searches to be valid, the following
criteria must be met:
§
There must be a “substantial” government interest supported by a
regulatory scheme.
§
Inspections must be necessary to carry out the regulatory scheme.
§
The government statutes must notify the business that warrantless
inspections will occur,
Donovan
v. Dewey.[27]
§
The statutes establish the scope of the inspections and limit the
inspectors’ discretion,
Marshall
v. Barlow’s, Inc.[28]
12.
Probation search is a search of a person on probation and his property
and residence. A person convicted of a crime and released on probation often
has a search requirement as a condition of release. If the person agrees to the
conditions of release, he obviously agrees to being searched without a warrant.
The United States Supreme Court said that the search is reasonable under the
Fourth Amendment. The court weighed the interests of the probationer’s right to
privacy against the government’s right to “further
the two primary goals of probation--rehabilitation and protecting society from
future criminal violations.” The court ruled that a warrantless search
requirement as a condition to being released from custody is legitimate, US
v. Knights.[29]
13. Protective Sweep
is a limited search of the premises that is quickly done. The purpose of this
type of search is to protect the officers on the scene from being attacked by
persons undetected in other parts of the premises. A protective sweep can be
conducted without reasonable suspicion for the areas immediately adjoining the
location of arrest. To expand the search to all rooms of the premises requires
at least reasonable suspicion that the officers’ safety are in danger, Maryland
v. Buie.[30]
These
thirteen exceptions to the Fourth Amendment search warrant requirement were
crafted by the courts to deal with circumstances that make it impractical or
unsafe to obtain a warrant. I briefly touched on the reasons given for the
exceptions in each section. The best way to understand the full reasoning for
these decisions is to read each case. Each cited case is a link to the full
case. I strongly encourage you to read them.