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    Grandmaster 4sarge's Avatar
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    7 Exceptions to the search warrant rule

    I post this for pure educational value not legal advice. Remember, all arrests, searches, etc are subject to State & Federal Law coupled with the interpretation of the Prosecutor and in a court of law by a Judge. Legal precedent can be changed by a court ruling and then is subject to interpretation all the way to the Supreme Court Level.

    7 Exceptions to the search warrant rule

    • Larry F. Jetmore
    • Law Officer Volume 4 Issue 6
    • 2008 Jun 1
    Knowing how to legally search a person, place or thing and properly seizing evidence are basic requisites to the investigative process. Officers also must have a clear understanding of when a search and/or arrest warrant is required and when itís not.

    The Fourth Amendment protects citizens from unreasonable government searches and seizures of their ďpersons, houses, papers, and effects.Ē The Fourth Amendment also states ďno warrants shall be issued but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.Ē (Minnesota v. Dickerson, 113 S. Ct. 2130 (1993)1.

    However, both the U.S. Supreme Court and federal courts have carved out specific, limited exceptions to the Fourth Amendment search warrant requirement, which are commonly referred to as the seven exceptions to the search warrant rule.

    The seven exceptions to the Fourth Amendment are exigent circumstances, search incidental to a lawful arrest, consent, plain view, caretaker function, inventory/impounded vehicles and motor vehicle.

    Exigent Circumstances
    Exigent means emergency, which means under life saving circumstances. Example: An elderly person in a wheel chair is trapped inside a burning apartment. Because lives are at stake, an officer can forcibly enter the apartment without a search warrant to rescue the person. The key: time and public need. The officer doesnít have time to get a warrant, and thereís an immediate risk of harm to the public that requires immediate official action.

    Another example: a situation in which public safety is paramount. If officers are being shot at, they may have to conduct a search of premises or a building without a search warrant because both the officers and the public are in imminent danger. Likewise, if an officer has probable cause to believe evidence is going to be destroyed, or if an officer is in hot pursuit of an escaped felon who runs into a house, a warrant isnít required. In Mincey v. Arizona (1978)2, the Supreme Court ruled officers donít have to delay a search if doing so endangers their lives or others.

    Search Incident to Lawful Arrest
    In a 1973 U.S. Supreme Court decision (United States v. Robinson, 17 414 U.S. 218)3, the Court stated, ďIt is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of the lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ďreasonableĒ search under the amendment.Ē

    The arrest must be valid under law. For the search without a warrant to be valid, the officer must be able to specifically articulate probable cause that the person committed a crime and there must have been an intention on the part of the officer to arrest prior to the search of the person. What is prohibited is the search of a person who is not yet under arrest in which contraband is found and then an arrest for possession of the contraband based on that search. The search of a person under arrest is subject to the ďareas under that personís immediate controlĒ (Chimel v. California, 395 U.S. 752 (1969)4.

    Example: The police observe a woman with a purse commit a crime. Officers may search her purse without a warrant. If officers find contraband and/or evidence of a crime in the purse, officers may charge the woman for both the original incident and for the evidence found in the purse.

    Good report writing is key here. Itís important for the officer to articulate the probable cause factors leading the officer to believe the woman committed a crime and the search of the purse was incidental to the arrest.

    Consent
    Officers and prosecutors face the heavy burden of proof, and searching a person or place with consent always presents problematic legal issues. Officers must prove the defendant voluntarily consented to a search, and there were no threats or promises of any kind.

    Officers can search without a warrant if they have consent from a person who has the authority to give it. Probable cause is not required if the consent is knowingly and intelligently given.

    In addition, there are several legal issues officers must overcome when conducting interviews, interrogating and taking statements and confessions, including:
    1. Who can consent to a search;
    2. What constitutes voluntarily consent; and
    3. What limitations does the law impose on those conducting the search.

    Age is also considered in legally defining consent. A child canít give consent, so you must know the age a person is considered to be a child in your state. Likewise, a parent may consent to the search of a childís room where no rent is paid, but a hotel manager or landlord may not provide legal consent to search unless the room or apartment is abandoned.

    In addition, itís difficult to prove a person impaired by alcohol, drugs, a mental condition (psychological and/or genetic dysfunction), injury or a language barrier voluntarily gave consent. In a 1990 decision, (Illinois v. Rodriguez 497 U.S. 177)5 the U.S. Supreme Court ruled a person can consent to a search if ďthe facts available to the officer at the time of entry warrant a man of reasonable caution to believe the consenting party has authority over the premises.Ē

    Most officers carry a legal form with carefully written consent-to-search language people sign to indicate their voluntary consent to the search. However, in a 1973 Supreme Court decision (Schneckloth v. Bustamonte, 412 U.S. 218)6, the court ruled officers donít have to specifically advise an individual they donít have to consent. A personís consent, even if in writing, can be withdrawn at any time and the police must stop searching.

    Plain View
    If an officer is lawfully in a place and has probable cause to believe an item is contraband, stolen, property or other evidence of a crime, the officer can seize it without a search warrant. This is known as the plain-view doctrine.

    In Horton v. California (496 U.S. 128)7, the Court reiterated when an officer has a right to be where they are, anything an officer observes in plain view is not the product of a search and is admissible as evidence. Example: An officer pulls over a car during a traffic stop and sees the handle of a gun protruding from under the passenger seat. If the motorist is not in legal possession of the weapon, the officer may seize it and charge the motorist with a criminal offense.

    The courts have also repeatedly ruled that officers may use visual enhancement devices, such as flashlights and binoculars. In fact, itís common for cities to have cameras mounted in public places with officers in kiosks viewing television monitors.

    Caretaker Function
    People routinely turn over found property to the police. Officers on patrol also come across found or abandoned property and take it into their possession until its owner can be located.

    Officers taking property into their care can search the items without a warrant. Example: If a footlocker is turned over to the police, officers have the right to open it without a search warrant to determine if its contents are dangerous to them or the public or if its contents can identify the owner.

    Impounded Vehicles Inventory
    Can a car towed by the police be searched without a warrant? In 1976 in South Dakota v. Opperman (428, U.S. 364)8, the court ruled that impounded vehicles may be searched and inventoried using the standard police procedures to secure the vehicles and its contents. This is similar to the caretaker-function exception to the Fourth Amendment.

    If an officer found contraband or evidence of a crime during the inventory of the vehicle and had probable cause to believe it belonged to the registered owner or an arrested person, the officer has a basis for an arrest. The court has pointed out that the inventory search cannot be used as a pretext for discovering incriminating evidence, and itís best if a department has written policy requiring officers to inventory all towed and impounded vehicles.

    If you want to search a vehicle thatís part of a crime scene, obtain a search warrant. If a person was found shot to death in a vehicle, after the body was removed, youíd certainly want to obtain a search warrant to thoroughly process the car for items of evidentiary value.

    Motor Vehicle Exception
    Fourth Amendment protection against searching motor vehicles without a search warrant has diminished over time. In 1925, the court ruled in Carroll v. United States (2657 U.S. 132)9 that if there was probable cause for an officer to secure a search warrant, it may be impractical because the vehicle was movable.

    In a 1981 case (New York v. Belton, 453 U.S. 454)10, the Supreme Court ruled that when a police officer arrests a person in a vehicle, the officer may search the vehicleís passenger compartment, including any open or closed containers, but not the trunk.

    In 1999, the court ruled in Maryland v. Dyson (527 U.S. 465)11 that a warrantless search of a vehicle may be justified if an officer has probable cause to believe the vehicle contains contraband, controlled substances or criminal evidence. The court reiterated that although the search is limited to areas where the officer has probable cause to believe an item may be located, the search extends to any container found that might contain the item.

    Keep in mind that stopping a vehicle for a routine violation doesnít mean thereís probable cause to believe the vehicle contains contraband, controlled substances or evidence of a crime.

    Conclusion
    It has been my experience that obtaining a search warrant is almost always preferable than searching a person, place or thing without one. Officers must keep in mind that just because weíre legally able to search without a warrant, it doesnít mean itís the wise thing to do.

    Dr. Larry F. Jetmore , a retired captain of the Hartford (Conn.) Police Department, has authored five books in the field of criminal justice, including The Path of the Warrior. A former police academy and SWAT team commander, he earned his Ph.D. at Union University in Ohio, plus masterís, bachelorís and associate degrees in Connecticut. Jetmore directs the criminal justice program at Middlesex College in Middletown, Conn., and is a full-time faculty member. His new book, The Path of the Hunter: Entering and Excelling in the Field of Criminal Investigation, is available from Looseleaf Law Publications. To order a copy, call 800/647-5547.

    References
    1. Minnesota v. Dickerson, 113 S. Ct. 2130 (1993)
    2. Mincey v. Arizona (1978).
    3. United States v. Robinson, 17 414 U.S. 218).
    4. Chimel v. California, 395 U.S. 752 (1969).
    5. Illinois v. Rodriguez 497 U.S. 177).
    6. Schneckloth v. Bustamonte, 412 U.S. 218).
    7. Horton v. California (496 U.S. 128).
    8. South Dakota v. Opperman (428, U.S. 364).
    9. Carroll v. United States (2657 U.S. 132).
    10. New York v. Belton, 453 U.S. 454).
    11. Maryland v. Dyson (527 U.S. 465).
    Freedom is defined by the character of those who defend it

  2. #2
    Marksman
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    Good info, thanks!

  3. #3
    Master
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    This is obviously outdated in light of Arizona v. Gant (with respect to searches incident to arrest).

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    Marksman seawolfxix's Avatar
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    I have a question about "Plain View." I was pulled over once, and I had a handgun on the passenger seat. The officer told me I had to turn it over to him, along with my carry license. He took my gun back to his car for about 5 minutes and returned it.

    The article says that if the officer has "probable cause to believe an item is contraband, stolen, property or other evidence of a crime, the officer can seize it without a search warrant." In my case, did he really have that probable cause?

  5. #5
    Master
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    Quote Originally Posted by seawolfxix View Post
    I have a question about "Plain View." I was pulled over once, and I had a handgun on the passenger seat. The officer told me I had to turn it over to him, along with my carry license. He took my gun back to his car for about 5 minutes and returned it.

    The article says that if the officer has "probable cause to believe an item is contraband, stolen, property or other evidence of a crime, the officer can seize it without a search warrant." In my case, did he really have that probable cause?
    It sounds like you gave it to him voluntarily, which negates any Fourth Amendment claim you otherwise would have had.

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    Marksman seawolfxix's Avatar
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    I asked him if I was required to give it to him, and he said "yes." I'm asking you guys if that was a lie or not.

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    Master Timjoebillybob's Avatar
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    Quote Originally Posted by downzero View Post
    This is obviously outdated in light of Arizona v. Gant (with respect to searches incident to arrest).
    Not really, in Gant they narrowed down what is considered to be an area of control by the arrestee, they did not remove search incident to arrest. And for a vehicle there is always the impound search.

    Quote Originally Posted by seawolfxix View Post
    The officer told me I had to turn it over to him, along with my carry license.
    Quote Originally Posted by downzero View Post
    It sounds like you gave it to him voluntarily, which negates any Fourth Amendment claim you otherwise would have had.
    If the officer told him he had to turn it over, it wouldn't really be voluntary would it? But as for a 4th amendment claim if the officer claimed he took it under "officer safety" most courts would let it fly imo. At least up until recently. There was a case in IN not too long ago where they through out the results of a search when the person admitted they had a firearm and a LTCH. The LEO cuffed the person and went to retrieve the handgun and spotted a bag of weed. It was througn out because the officer could not articulate a reasonable basis for concern for his safety.
    http://www.in.gov/judiciary/opinions...3041001jsk.pdf

    But I wonder if a bit of tape over the serial # would stop them from running the numbers? Under Arizona v Hicks it was held that moving a stereo to get the serial numbers was an unlawful search. The officers had reasonable suspicion but not probable cause the the equipment had been stolen. They would have to have at least probable cause to remove the tape.

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    Master Timjoebillybob's Avatar
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    Quote Originally Posted by seawolfxix View Post
    I asked him if I was required to give it to him, and he said "yes." I'm asking you guys if that was a lie or not.
    Was it a lie? Depends. How firm are you on "from my cold dead hands"?


    But in all seriousness, a stop is not usually the place to argue this sort of thing. You can inform them that you do not consent to the seizure but will not physically resist. Then file a complaint/lawsuit afterward. A LEO under most circumstances is allowed to take control of a weapon for "officer safety". But see the aforementioned case.

  9. #9
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    Quote Originally Posted by Timjoebillybob View Post
    Not really, in Gant they narrowed down what is considered to be an area of control by the arrestee, they did not remove search incident to arrest. And for a vehicle there is always the impound search.
    I'll leave the details to the individual readers of the case. What I will say is what officers once thought was a search incident to a lawful arrest is not.

    There is also not, "always" the inventory search, either. There are very specific guidelines under which inventory searches may be performed. Some departments do not do inventory searches.

    From my own work on the subject
    :
    Despite the narrowing of the search incident to arrest, there exists another commonly used tool that police use to gain evidence from vehicles without warrants—the “inventory search.” Vehicles, when impounded,[60] can be inventoried for three reasons: “protecting private property while it remained in police custody;” “protecting the police against claims or disputes over lost or stolen property;” and “protecting the police and public from potential danger.”[61] These searches must be, “performed according to a reasonable police procedure,”[62] which fails (and has historically failed)[63] to produce a clear rule for officers to follow, much like the criticisms of the search incident to arrest doctrine in Gant claimed. One thing is certain, however. In any case involving a traffic stop where the protection of Gant prevents a lawful search incident to arrest and the vehicle is lawfully impounded and if local police procedure favors a broad search of the contents of an impounded vehicle, the broad protection in Gant will prove useless in suppressing any evidence of another crime that may exist in the arrestee’s vehicle. Therefore, the existence of any Fourth Amendment protection may depend on seemingly unrelated statute—primarily, the legal requirements for vehicle impoundment. Additionally, Gant encourages police departments to adopt broader inventory search policies, so that they can be used for evidencery purposes when probable cause does not exist to search the vehicle.
    If the officer told him he had to turn it over, it wouldn't really be voluntary would it?
    Yes, because police officers are allowed to lie in the performance of their duties. Cops use lies and deception all the time to extract confessions or gain permission to search where they otherwise would not have probable cause. This is common. Unless you know how to assert your fourth amendment rights, you surrender them.

    But as for a 4th amendment claim if the officer claimed he took it under "officer safety" most courts would let it fly imo.
    Considering pulling a person over for a traffic investigation constitutions a lawful seizure, I'm not sure the analysis would even have to go that far.

    At least up until recently. There was a case in IN not too long ago where they through out the results of a search when the person admitted they had a firearm and a LTCH. The LEO cuffed the person and went to retrieve the handgun and spotted a bag of weed. It was througn out because the officer could not articulate a reasonable basis for concern for his safety.
    http://www.in.gov/judiciary/opinions...3041001jsk.pdf
    I've actually heard of these cases before. Typically they hinge on the reasonable suspicion that the person in the car is both armed and dangerous. I think they make the right call--a person with a handgun and a LTCH is not, absent some other facts, "dangerous."

    But I wonder if a bit of tape over the serial # would stop them from running the numbers? Under Arizona v Hicks it was held that moving a stereo to get the serial numbers was an unlawful search. The officers had reasonable suspicion but not probable cause the the equipment had been stolen. They would have to have at least probable cause to remove the tape.
    Are we talking about in an automobile or the home? What are the other facts? I think it could go either way.

    Quote Originally Posted by Timjoebillybob View Post
    Was it a lie? Depends. How firm are you on "from my cold dead hands"?


    But in all seriousness, a stop is not usually the place to argue this sort of thing. You can inform them that you do not consent to the seizure but will not physically resist. Then file a complaint/lawsuit afterward. A LEO under most circumstances is allowed to take control of a weapon for "officer safety". But see the aforementioned case.
    I'm not sure that the LEO may take control of the weapon for "officer safety." It'd seem that it's far easier to defend removing the person from his vehicle in that instance rather than taking his firearm for the duration of the stop. And without frisking the vehicle, the officer would have no way of knowing if the person had another gun that wasn't in plain sight.

    I think that argument should fail. If the officer has some legitimate concern for his safety, he should separate the person from their vehicle and frisk them, which is permitted under Terry v. Ohio.

  10. #10
    Master Timjoebillybob's Avatar
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    ETA sorry for the late reply it's been busy here

    Quote Originally Posted by downzero View Post
    I'll leave the details to the individual readers of the case. What I will say is what officers once thought was a search incident to a lawful arrest is not.

    Agreed.

    There is also not, "always" the inventory search, either. There are very specific guidelines under which inventory searches may be performed. Some departments do not do inventory searches.

    Also sorta agreed. While there may not "always" (poor choice of words on my side) I would generalize and say that since Gant most departments have guidelines for doing an inventory search.

    I've actually heard of these cases before. Typically they hinge on the reasonable suspicion that the person in the car is both armed and dangerous. I think they make the right call--a person with a handgun and a LTCH is not, absent some other facts, "dangerous."

    I again agree that they made the right call. But do you have any cites for the other cases? I'm not disputing that you are right, I just haven't heard of any. At least none that would effect Indiana, and am interested in reading them.

    Are we talking about in an automobile or the home? What are the other facts? I think it could go either way.

    It was an apartment. There was a gunshot from the apartment which injured a person in the other apartment and the responding officers searched for firearms/shooter/other victims. In addition to finding several firearms and masks, they spotted some high end stereo equipment and called in the serial numbers on them. At least one piece turned out to be stolen from an armed robbery. The officers had to move the piece to get the serial number. The judge ruled that since that was not the initial reason for the search/seizure and that it wasn't in plain view that it was an unlawful search. The above is highly paraphrased, the actual ruling is here.

    I'm not sure that the LEO may take control of the weapon for "officer safety." It'd seem that it's far easier to defend removing the person from his vehicle in that instance rather than taking his firearm for the duration of the stop. And without frisking the vehicle, the officer would have no way of knowing if the person had another gun that wasn't in plain sight.

    Again agreed, but the courts give a large bit of leeway in how officers handle things. Which to an extent is how it should be. No two situations are the same. But they should never be able to trample someones rights.

    I think that argument should fail. If the officer has some legitimate concern for his safety, he should separate the person from their vehicle and frisk them, which is permitted under Terry v. Ohio.
    Dang yet another agreement with you. But to disagree, a person in a car is a bit more restrained than a person on foot. Would you rather get in a fight outside a vehicle or inside of one? Both have their advantages and disadvantages, both of which change depending on the exact circumstances. Which is why I feel that it will be rare that a court finds against an officer for securing a firearm for officer safety.

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