This is not a blast from the past. I know I said I wouldn’t be back yet, and I do still have exams. In fact, this is part of one of them. For my take-home final exam on Criminal Law and Procedure, I wrote up what is essentially a summary of the exigent circumstances surrounding warrantless searches. There were some folks who expressed interest in it, and I think it could be a useful research tool, although I will emphasize that this is the barest of bones. If you are suspending a plot point in your writing on one of these, take the time to look it up fully. It’s quite possible I got it wrong. For that matter, I am not a lawyer in any way, shape, nor form, and this should not be considered any substitute for legal advice. That said…
Exceptions to search warrant:
Administrative Searches are listed in the book although they technically fall outside criminal law. They are, however, a search that is conducted without a warrant even though not intended to catch a criminal. They can be conducted if there is a reasonable suspicion and if there is a regulation scheme in place, and they may include workplaces of certain kinds of businesses, including employee areas.
Border searches may be, and are, conducted without any suspicion at all, and do not require a warrant, in the interests of national security. However, the principle of reasonableness still applies. Invasive personal searches should not be conducted without a ‘clear indication’ which is less than probable cause. Although the border stops may extend considerably far away from the borders, as they move away from the border, searches may not take place at will, as they do at the border.
Consent searches are permissible without a warrant, as the person consenting obviates that requirement. However, the search must be limited to what the person has consented to, and had the rights to consent to. The consent must be voluntary, and given by a person that is able to consent. The consent cannot be obtained through threats or force. The consent does not apply if the consenting person is not living in the dwelling – landlords may have a property right, but cannot consent to a search of a tenant’s living space.
In an emergency, a police officer may enter a place without consent or a warrant even though it is protected by the Fourth Amendment. Once inside, incident to dealing with the emergency, any evidence in plain sight may be taken. Also, an officer in hot pursuit of a criminal does not have to stop at the threshold of a dwelling, and the plain view exception applies in this case as well.
Inventory searches, of vehicles that have been impounded, are exempted from a warrant because they are not intended to discover evidence. They are designed to protect the car owner from theft and the police department from accusations of theft, and there should be a clear policy in place for them, as they are required to be limited in scope.
Motor vehicles, as they are used on public roads and in full view, are covered with a lesser expectation of privacy than a home. In Carroll v United States (267 US 132) the US Supreme Court held that warrantless searches of a vehicle with probable cause for the search were acceptable. The vehicle itself may be impounded if the cause is strong enough, and further searched after impounding. The scope of the search is to be limited and consistent with the evidence being sought, and must cease when the evidence being sought is discovered. The vehicle may also be subject to a search incident to the arrest of its driver. The occupants of said car may not be subject to search unless the officer believes there is probable cause.
Open fields are not, properly, subject to the Fourth Amendment protections against search, but they can be problematic where they impinge on the curtilage around a dwelling. Considerations include the closeness of the area to house or building, the enclosure (or lack thereof), the use of the area, and whether attempts have been made to keep the area private.
Plain feel is a limited search that allows the officer to pat-down a suspect, but unless they can identify contraband by touch, they do not have probable cause to continue the search. If, however, they feel something they think is a weapon, they may extract it.
The Plain View Doctrine is an exception to warranted search by an officer who is lawfully in a position to see evidence. The requirements are that the officer must be lawfully in an area, he must be able to plainly see the evidence, He must actually see the evidence, and have probable cause to seize the evidence, and finally he must have the right to access the object. Public places are lawful for the officer to be. In a private place for some other reason, the officer has a right to seize evidence that is in plain sight. The officer may not move or otherwise touch the object in order to determine if it is evidence, that is limited to sight alone. If the officer cannot fulfill the five requirements, they must obtain a warrant.
If the officer believes sincerely that the evidence will be destroyed before a warrant may be obtained, he may conduct a warrantless search and seizure. This also applies to ephemeral evidence that is volatile and will be destroyed merely by the passage of time.
Prisons are an area not fully protected by the Fourth Amendment, and a prisoner’s cell may be searched at any time without a warrant. The person of a prisoner may also be searched if there is reasonable cause to believe they are hiding evidence. Even strip searches may be conducted under certain circumstances, such as contact with outside visitors or having been outside the institution.
Persons undergoing parole or probation are similarly not fully protected. They are subject to warrantless searches of their homes, persons, and papers. They may expect slightly more privacy than a prisoner, but far less than an average citizen.
Following an arrest, a defendant’s person may be fully searched without a warrant. In order to prevent harm to the officers in contact with the suspect and to prevent the destruction of evidence, this is necessary without waiting for a warrant. A Chimel search of the area ‘within the defendant’s immediate control’ is acceptable without a warrant, but it is to be brief and limited.
The search known as Terry, or stop-and-frisk, is a limited invasion of a person’s privacy. Officers may only conduct a Terry search if there is ‘reasonable suspicion’ of the person being stopped. The officer may require the person stopped to produce correct identification. The frisk is to be limited to the exterior of the clothing, not including the pockets.