Arrests and Search Warrants II
by Grendel
DISCLAIMER
This article does not constitute legal advice and it should not form the basis of any course of action. In all cases, consult with a duly accredited and licensed attorney in your state to determine the specifics of the law as applied to you (in your State). Neither the author nor the publisher intends this article to be anything but published for entertainment and educational purposes and affirm once again that this article is not offering legal advice.
Introduction
Bodybuilders all too frequently run afoul of the law; the current draconian steroid laws make the use and possession of performance-enhancing drugs illegal and punishable by imprisonment. But the reality is that many athletes still choose to risk their freedom in the quest for physical perfection. So be it. Fortunately, as an American, we have certain freedoms and protections granted us. Learning the boundaries and principles of those freedoms can literally mean the difference between life and death. If you are unfortunate enough to be arrested, it will be the Fourth Amendment to the United States Constitution that can save you. No one understands all the intricacies of the law and of the art of constitutional interpretation, but hopefully this article will give you a working knowledge of what rights and protections you have.
Editors Note: This article is divided into 6 sections. If you have not done so, please first read sections 1-2 in Mind and Muscle #8. Today’s installment will look at sections 3 and 4. Section 3 deals with warrantless searches and seizures – when and why they are or are not valid. The second will look in detail at what is known as “exigent circumstances”, in which the 4th amendment requirement for a search warrants do not apply. The final two section will appear in issue #10.
Part III: Warrantless Arrests & Searches
The Fourth Amendment mentions warrants specifically, but does not actually require warrants — the amendment merely says that "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." So under a strict interpretation of the literal text of this amendment, a warrant might never be constitutionally required. But the Supreme Court has interpreted the Fourth Amendment to sometimes require a warrant. In very general terms, the rules for when a warrant is required may be summarized as follows:
An arrest warrant will rarely be required. Only when the police need to enter a private home to make the arrest, and there are no exigent circumstances, does the Fourth Amendment require the police to procure an arrest warrant before they make the arrest.
But just the converse is true in the case of a search: the general rule is that a warrant is required . Only if some special exception applies will the requirement of a search warrant be dispensed with. Some of the more common exceptions are:
A search incident to a valid arrest; [A domestic dispute, a fight, a DUI]
A search motivated by exigent circumstances (e.g., to avoid destruction of evidence);
Certain types of automobile searches (e.g., a search of a car when the driver is arrested and both driver and car are taken to the police station);
Searches done after the person to be searched or the owner of the property to be searched consents; [Bad idea. As much as the cops may try to make you think they are on your side and that consenting and cooperating will make this easy on you, don’t believe them. I’ve been told at point blank range by several cops never to tell a cop the truth and never to cooperate with them, no matter what.]
Partial searches done pursuant to the "stop and frisk" doctrine; and
Certain inspections and regulatory searches (e.g., immigration searches at U.S. borders, sobriety checkpoints on highways, etc The fact that in a particular situation no search warrant is required does not necessarily mean that probable cause is not required. In some but not all of the above listed situations (e.g., exigent circumstances), the police must have probable cause to believe that a search will furnish evidence of crime, even though they are not required to get a warrant. In others of the above situations, something less than probable cause, and perhaps no real suspicion at all, will be needed. (Example: Less than probable cause, but some suspicion, is required for "stop and frisk," whereas no suspicion is required for a consent search).
Warrantless Arrests
An arrest warrant is not generally required by the Constitution. This is true even where the police have sufficient advance notice that procurement of a warrant would not jeopardize the arrest. U.S. v. Watson The only situation in which an arrest warrant is likely to be constitutionally required is where the police wish to enter private premises to arrest a suspect. In that instance, the requirement for a warrant will depend on whether exigent circumstances exist. If there are no exigent circumstances, the police may not enter a private home to make a warrantless arrest. Payton v. New York
A warrantless arrest made in violation of Payton will not prevent a suspect from being brought to trial (since he can always be re-arrested after a warrant has been issued). However, if the police make an in-house arrest that required a warrant because there were no exigent circumstances, then any evidence seized as a result of a search incident to the arrest will be excluded. If there are exigent circumstances, so that it is impractical for the police to delay the entry and arrest until they can obtain an arrest warrant, no warrant is necessary (at least if the crime is a serious one, such as a felony.
For instance, if the police reasonably believe that the suspect will destroy evidence if they delay their entry until they can get a warrant, the requisite exigent circumstances exist. Similarly, if the police are pursuing a felony suspect, and he runs into his own or another’s dwelling, a warrantless entry and arrest may be permitted under the "hot pursuit" doctrine. Do you start to see the underlying concern – the police have the ability to act to preserve life and to preserve evidence but they must evaluate the threat on the a reasonable standard.
In addition to the constitutional requirements for arrest warrants described above, many states impose some statutory requirements for such warrants. (Example: Many states allow an officer to make a warrantless misdemeanor arrest only if the misdemeanor was committed in the officer’s presence.) The Fourth Amendment also places limits on how an arrest may be made. The main rule is that the police may not use deadly force to make an arrest, if the suspect poses no immediate threat to the officer and no threat to others. Tennessee v. Garner
Searches Leading to Arrest
When the police are making a lawful arrest, they may search the area within the arrestee’s control. This is known as a "search incident to arrest ". Search-incident-to-arrest is the most important exception to the general rule that a search warrant is required before a search takes place. Only the area that is at least theoretically within the suspect’s immediate control may be searched incident to arrest. (The basic idea is that only the area that the suspect might get to in order to destroy evidence or gain possession of a weapon may be searched.) Again, the idea is to preserve the evidence and keep the officers serving the warrant safe. If you are a visitor, you are probably outside the realm of being searched unless you appear to be hiding evidence or pose a very real and immediate threat to the lives of the officers.
The Supreme Court also upholds "protective sweeps" under the search-incident-to-arrest doctrine. What that means is that where the arrest takes place in the suspect’s home, the officers may conduct a protective sweep of all or part of the premises, if they have a "reasonable belief" based on "specific and articulable facts" that another person who might be dangerous to the officer may be present in the areas to be swept. Maryland v. Buie But "specific and articulable facts" are not needed for the officers to search in closets and other spaces immediately adjoining the place of an arrest, to make sure that no possible attacker lurks there. Again, the policy here is to protect the police officers and make sure that some assailant lurking in the back yard or back room of the house does not ambush them. However, if the police open the closet to look for a hidden assailant, and find no one, they cannot begin to riffle through the boxes in the closet for more evidence.
Where the police have made a lawful "custodial arrest" of the occupant of an automobile, they may, incident to that arrest, search the car’s entire passenger compartment, and the contents of any containers found in that compartment. New York v. Belton The right to search the contents of any container found in the compartment means that the police may search closed or open glove compartments, as well as any luggage, boxes, bags, etc. found in the car. Even if, at the time of the search, the suspect has been placed some distance away from the automobile (e.g., in the squad car), the police may search the passenger compartment — this is true even though there is no practical danger that D will gain a weapon or destroy evidence from within the passenger compartment. The rule that permits a search of the passenger compartment incident to arrest does not cover searches of the trunk of the car. You read that right…it does not cover the search of the trunk! The trunk is separate locked entity and, because it not accessible to the driver (he cant snatch a pistol from the trunk while sitting in the drivers seat)
For the search to be incident to arrest, it need not be exactly simultaneous with the arrest — a search that takes place some time before or even after the arrest will still be held "incident" to that arrest as long as it is closely connected to it logically speaking. Thus the police may make a search before they arrest the suspect, as long as they already have probable cause to make the arrest and are doing the search in order to protect themselves. Generally, the arrest must follow quite quickly on the heels of the protective search. Rawlings v. Kentucky
Similarly, the search-incident-to-arrest exception is applicable even to searches which do not occur until sometime after the arrest, at least where the search is made of objects in the suspect’s possession at the time of arrest. Most commonly, the police may arrest the suspect, take control of the objects in the suspect’s possession at the time of the arrest, and examine those objects at a later time.
In fact, there now seems to be an "inventory search" exception to the search warrant requirement, which applies even if the search is not, strictly speaking, incident to arrest. That is, the police may take possession of any objects found on D’s person at the time of arrest, and examine those objects as a means of conducting an "inventory" of D’s possessions. This is true even though a long time elapses between the arrest and the inventory search, even though the police did not have probable cause to search, and even if the police could have obtained a search warrant beforehand and didn’t.
The search-incident-to-arrest exception to the search warrant requirement applies only where the arrest is legal. Thus if the arrest turns out to have been made without probable cause, the search incident to it cannot be justified on the search-incident-to-arrest rationale, and the arrest must be suppressed unless some other exception to the warrant requirement (e.g., prevention of destruction of evidence) justifies it. But a search incident to arrest will not be invalidated by the fact that the statute violated is later held to be unconstitutional. Michigan v. DeFilippo
The search-incident-to-arrest exception seems to apply to arrests even for minor crimes. For instance, if D is arrested for a traffic violation, he may be searched incident to the arrest even though the crime is not an especially "serious" one. U.S. v. Robinson However, for the search-incident-to-arrest doctrine to apply, the arrest must be a "custodial" one. That is, the officer must be planning to take D to the station-house for booking.
An example might help here. Suppose that Chief Wiggum stops Homer, a driver, for driving with an expired registration sticker. Lets say that this is a misdemeanor, and that under local police department procedures, a driver stopped for such an offense is virtually never arrested, but is instead given a summons to be answered at a later date. On these facts, Homer is not really being "arrested," and his body, or his car, may not be searched incident to arrest. However, even in the case of such a non-custodial stop, a suspect may be required to step out of the car. Once he has stepped out of the car, presumably he may be subjected to at least a cursory frisk under the stop-and-frisk doctrine, discussed below.
Part IV: Exigent Circumstances in More Detail
Even where the search-incident-to-arrest exception to the search warrant requirement does not apply, there may be exigent circumstances that justify dispensing with the warrant requirement. The most common exigent circumstances are:
Preventing the imminent destruction of evidence;
Preventing harm to persons; and
Searching in "hot pursuit" for a suspect.
The police may conduct a search without a warrant provided that they have probable cause, and provided that the search is necessary to prevent the probable imminent destruction of evidence. A warrantless search may be allowed where danger to life is likely if the police cannot act fast. If the police are pursuing a felony suspect, and have reason to believe that he has entered particular premises, they may enter those premises to search for him. While they are searching for him, they may also search for weapons which, since he is still at large, he might seize. This is called the "hot pursuit" exception to the search warrant requirement. The "hot pursuit " exception is often combined with the "plain view" exception. That is, while the police are engaged in a hot pursuit of a suspect and any weapons he might have, they may seize any other evidence of criminal behavior that they stumble upon in plain vie One commonly-occurring situation does not automatically constitute "exigent circumstances": where the police are not in hot pursuit, and there are no specific exigent circumstances, the police may not enter one person’s private dwelling to arrest another, even if they are acting pursuant to an arrest warrant. Steagald v. U.S.
The "Plain View" Doctrine
The "plain view " doctrine is often applied to allow police who are on premises for lawful purposes to make a warrantless seizure of evidence that they come across. For the plain view doctrine to be applied so that a warrantless seizure of evidence is allowable, three requirements must be met:
First, the officers must not have violated the Fourth Amendment in arriving at the place from which the items were plainly viewed. Second, the incriminating nature of the items seized must be "immediately apparent". To put it another way, the police must, at the time they first see the item in plain view, have probable cause to believe that the object is incriminating. Finally, the officer must have a lawful right of access to the object itself . Remember that the plain view doctrine applies even where the police discovery of a piece of evidence that they want to seize is not inadvertent.
Searching Cars
It is crucial to look at the major exceptions to the warrant requirement in the context of automobile searches. Remember though that the general exceptions discussed above will frequently apply in the case of cars: For instance, exigent circumstances will often cause the warrant requirement to be suspended where a car search is involved. Similarly, recall that a car’s passenger compartment may be searched incident to the arrest of the driver or passenger.
There are two major automobile-specific exceptions that have developed to the warrant requirement:
When the driver is arrested, the car may be searched at the station-house even without a warrant; and
If the police reasonably believe that a car is carrying contraband, it may be subjected to a full warrantless search in the field. [This can mean drug dogs, x-ray and other scanners, as well as physical searches by officers and trained technicians]
Where the police arrest the driver, take him and his car to the station, and search the car there, no search warrant is generally required. Apparently the police have a right to impound the car after arrest and search it without a warrant even where they had advance notice and could easily have gotten a search warrant before the entire episode. Florida v. White This could be very bad!
Where the police have probable cause to believe that a car is being used to transport contraband, and they stop it, they may conduct a warrantless search not only of the car but also any closed containers in the car. They may do this on the scene, without even impounding the car. Once the police have probable cause to believe that the car contains contraband, they may search closed containers inside it that could hold that type of contraband, even if those containers belong to a passenger, and even if there is no probable cause to believe that the passenger has been involved in carrying the contraband or any other illegality. Wyoming v. Houghton Conversely, even if the police’s probable cause relates solely to a closed container inside the car, not to the car itself, the police may stop the car and seize and open the container, all without a warrant. California v. Aceved
If the driver’s conduct leads the police to make a proper stop and/or arrest, this does not mean that the officer has the right to search the person of any passenger who happens to be in the car. No matter what the driver has done, the officer may search a passenger only if the officer has either:
Probable cause to believe that the passenger possesses evidence of a crime, or
Probable cause to arrest the passenger (in which case the search is justified as being incident to arrest).
However, the officer does have several other rights regarding passengers:
As a method of protecting officer safety, the officer may demand that the passenger step out of the vehicle.
Also as a matter of protection, if the officer has a reasonable fear that the passenger may be armed or dangerous, he may frisk and pat-down the passenger, to make sure that the passenger is not carrying a weapon.
Finally, if the officer has the right to search the vehicle, he may as noted above also search any container in the car that might contain the thing being looked for, even if the officer knows that the container belongs to a passenger, and even if the officer has no probable cause to believe that the container contains that thing.
Of the various automobile scenarios that present an exception to the requirement of a search warrant, sometimes probable cause to make the search is required and sometimes it is not: Where the driver is stopped and the police want to search the car on the scene, they will normally need probable cause to conduct that search: belief that they will find either incriminating evidence or contraband. If the police find evidence in plain view in a vehicle as they are impounding it, they may seize the evidence even though they did not previously have probable cause to search or seize. If the car has been impounded by the police pursuant to standardized procedures, the police may usually conduct a search at the station-house even though they do not have probable cause. For instance, where a police department routinely tows cars for illegal parking, the police may unlock and search each such towed car in the impoundment lot. South Dakota v. Opperman Obviously, you are beginning to see the many dangers inherent in using your car as a storage locker for contraband and, also, the obvious risk in transporting anything illegal in your car.
Similarly, once the impounded vehicle is searched, even closed containers inside it may be subjected to a warrantless and probable-cause-less inventory search. But such warrantless inventory searches must satisfy two conditions:
The police must follow standardized procedures, so that the person searching does not have unbridled discretion to determine the scope of the search; and
The police must not have acted in bad faith or for the sole purpose of investigation. (Example: If the arrest or impoundment took place just to furnish an excuse for a warrantless search, the inventory-search exception will not apply). Colorado v. Bertine
Don’t make the mistake of thinking that every time the police validly stop a motorist, they may search that motorist’s car. There are times when no warrantless search is allowed even though the stop was proper. In particular, if the officer properly stops a car to write a traffic ticket, and does not make an arrest, the officer is not allowed, merely by virtue of the stop, to search the car. This is true even if under local law the officer could have made a custodial arrest for the traffic violation. Knowles v. Iowa But, if the cop pulls you over for speeding and smells the odor of drugs, sees a gun on the passenger seat, or some pills on the dash board, that would probably be sufficient probably cause.
by Grendel
DISCLAIMER
This article does not constitute legal advice and it should not form the basis of any course of action. In all cases, consult with a duly accredited and licensed attorney in your state to determine the specifics of the law as applied to you (in your State). Neither the author nor the publisher intends this article to be anything but published for entertainment and educational purposes and affirm once again that this article is not offering legal advice.
Introduction
Bodybuilders all too frequently run afoul of the law; the current draconian steroid laws make the use and possession of performance-enhancing drugs illegal and punishable by imprisonment. But the reality is that many athletes still choose to risk their freedom in the quest for physical perfection. So be it. Fortunately, as an American, we have certain freedoms and protections granted us. Learning the boundaries and principles of those freedoms can literally mean the difference between life and death. If you are unfortunate enough to be arrested, it will be the Fourth Amendment to the United States Constitution that can save you. No one understands all the intricacies of the law and of the art of constitutional interpretation, but hopefully this article will give you a working knowledge of what rights and protections you have.
Editors Note: This article is divided into 6 sections. If you have not done so, please first read sections 1-2 in Mind and Muscle #8. Today’s installment will look at sections 3 and 4. Section 3 deals with warrantless searches and seizures – when and why they are or are not valid. The second will look in detail at what is known as “exigent circumstances”, in which the 4th amendment requirement for a search warrants do not apply. The final two section will appear in issue #10.
Part III: Warrantless Arrests & Searches
The Fourth Amendment mentions warrants specifically, but does not actually require warrants — the amendment merely says that "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." So under a strict interpretation of the literal text of this amendment, a warrant might never be constitutionally required. But the Supreme Court has interpreted the Fourth Amendment to sometimes require a warrant. In very general terms, the rules for when a warrant is required may be summarized as follows:
An arrest warrant will rarely be required. Only when the police need to enter a private home to make the arrest, and there are no exigent circumstances, does the Fourth Amendment require the police to procure an arrest warrant before they make the arrest.
But just the converse is true in the case of a search: the general rule is that a warrant is required . Only if some special exception applies will the requirement of a search warrant be dispensed with. Some of the more common exceptions are:
A search incident to a valid arrest; [A domestic dispute, a fight, a DUI]
A search motivated by exigent circumstances (e.g., to avoid destruction of evidence);
Certain types of automobile searches (e.g., a search of a car when the driver is arrested and both driver and car are taken to the police station);
Searches done after the person to be searched or the owner of the property to be searched consents; [Bad idea. As much as the cops may try to make you think they are on your side and that consenting and cooperating will make this easy on you, don’t believe them. I’ve been told at point blank range by several cops never to tell a cop the truth and never to cooperate with them, no matter what.]
Partial searches done pursuant to the "stop and frisk" doctrine; and
Certain inspections and regulatory searches (e.g., immigration searches at U.S. borders, sobriety checkpoints on highways, etc The fact that in a particular situation no search warrant is required does not necessarily mean that probable cause is not required. In some but not all of the above listed situations (e.g., exigent circumstances), the police must have probable cause to believe that a search will furnish evidence of crime, even though they are not required to get a warrant. In others of the above situations, something less than probable cause, and perhaps no real suspicion at all, will be needed. (Example: Less than probable cause, but some suspicion, is required for "stop and frisk," whereas no suspicion is required for a consent search).
Warrantless Arrests
An arrest warrant is not generally required by the Constitution. This is true even where the police have sufficient advance notice that procurement of a warrant would not jeopardize the arrest. U.S. v. Watson The only situation in which an arrest warrant is likely to be constitutionally required is where the police wish to enter private premises to arrest a suspect. In that instance, the requirement for a warrant will depend on whether exigent circumstances exist. If there are no exigent circumstances, the police may not enter a private home to make a warrantless arrest. Payton v. New York
A warrantless arrest made in violation of Payton will not prevent a suspect from being brought to trial (since he can always be re-arrested after a warrant has been issued). However, if the police make an in-house arrest that required a warrant because there were no exigent circumstances, then any evidence seized as a result of a search incident to the arrest will be excluded. If there are exigent circumstances, so that it is impractical for the police to delay the entry and arrest until they can obtain an arrest warrant, no warrant is necessary (at least if the crime is a serious one, such as a felony.
For instance, if the police reasonably believe that the suspect will destroy evidence if they delay their entry until they can get a warrant, the requisite exigent circumstances exist. Similarly, if the police are pursuing a felony suspect, and he runs into his own or another’s dwelling, a warrantless entry and arrest may be permitted under the "hot pursuit" doctrine. Do you start to see the underlying concern – the police have the ability to act to preserve life and to preserve evidence but they must evaluate the threat on the a reasonable standard.
In addition to the constitutional requirements for arrest warrants described above, many states impose some statutory requirements for such warrants. (Example: Many states allow an officer to make a warrantless misdemeanor arrest only if the misdemeanor was committed in the officer’s presence.) The Fourth Amendment also places limits on how an arrest may be made. The main rule is that the police may not use deadly force to make an arrest, if the suspect poses no immediate threat to the officer and no threat to others. Tennessee v. Garner
Searches Leading to Arrest
When the police are making a lawful arrest, they may search the area within the arrestee’s control. This is known as a "search incident to arrest ". Search-incident-to-arrest is the most important exception to the general rule that a search warrant is required before a search takes place. Only the area that is at least theoretically within the suspect’s immediate control may be searched incident to arrest. (The basic idea is that only the area that the suspect might get to in order to destroy evidence or gain possession of a weapon may be searched.) Again, the idea is to preserve the evidence and keep the officers serving the warrant safe. If you are a visitor, you are probably outside the realm of being searched unless you appear to be hiding evidence or pose a very real and immediate threat to the lives of the officers.
The Supreme Court also upholds "protective sweeps" under the search-incident-to-arrest doctrine. What that means is that where the arrest takes place in the suspect’s home, the officers may conduct a protective sweep of all or part of the premises, if they have a "reasonable belief" based on "specific and articulable facts" that another person who might be dangerous to the officer may be present in the areas to be swept. Maryland v. Buie But "specific and articulable facts" are not needed for the officers to search in closets and other spaces immediately adjoining the place of an arrest, to make sure that no possible attacker lurks there. Again, the policy here is to protect the police officers and make sure that some assailant lurking in the back yard or back room of the house does not ambush them. However, if the police open the closet to look for a hidden assailant, and find no one, they cannot begin to riffle through the boxes in the closet for more evidence.
Where the police have made a lawful "custodial arrest" of the occupant of an automobile, they may, incident to that arrest, search the car’s entire passenger compartment, and the contents of any containers found in that compartment. New York v. Belton The right to search the contents of any container found in the compartment means that the police may search closed or open glove compartments, as well as any luggage, boxes, bags, etc. found in the car. Even if, at the time of the search, the suspect has been placed some distance away from the automobile (e.g., in the squad car), the police may search the passenger compartment — this is true even though there is no practical danger that D will gain a weapon or destroy evidence from within the passenger compartment. The rule that permits a search of the passenger compartment incident to arrest does not cover searches of the trunk of the car. You read that right…it does not cover the search of the trunk! The trunk is separate locked entity and, because it not accessible to the driver (he cant snatch a pistol from the trunk while sitting in the drivers seat)
For the search to be incident to arrest, it need not be exactly simultaneous with the arrest — a search that takes place some time before or even after the arrest will still be held "incident" to that arrest as long as it is closely connected to it logically speaking. Thus the police may make a search before they arrest the suspect, as long as they already have probable cause to make the arrest and are doing the search in order to protect themselves. Generally, the arrest must follow quite quickly on the heels of the protective search. Rawlings v. Kentucky
Similarly, the search-incident-to-arrest exception is applicable even to searches which do not occur until sometime after the arrest, at least where the search is made of objects in the suspect’s possession at the time of arrest. Most commonly, the police may arrest the suspect, take control of the objects in the suspect’s possession at the time of the arrest, and examine those objects at a later time.
In fact, there now seems to be an "inventory search" exception to the search warrant requirement, which applies even if the search is not, strictly speaking, incident to arrest. That is, the police may take possession of any objects found on D’s person at the time of arrest, and examine those objects as a means of conducting an "inventory" of D’s possessions. This is true even though a long time elapses between the arrest and the inventory search, even though the police did not have probable cause to search, and even if the police could have obtained a search warrant beforehand and didn’t.
The search-incident-to-arrest exception to the search warrant requirement applies only where the arrest is legal. Thus if the arrest turns out to have been made without probable cause, the search incident to it cannot be justified on the search-incident-to-arrest rationale, and the arrest must be suppressed unless some other exception to the warrant requirement (e.g., prevention of destruction of evidence) justifies it. But a search incident to arrest will not be invalidated by the fact that the statute violated is later held to be unconstitutional. Michigan v. DeFilippo
The search-incident-to-arrest exception seems to apply to arrests even for minor crimes. For instance, if D is arrested for a traffic violation, he may be searched incident to the arrest even though the crime is not an especially "serious" one. U.S. v. Robinson However, for the search-incident-to-arrest doctrine to apply, the arrest must be a "custodial" one. That is, the officer must be planning to take D to the station-house for booking.
An example might help here. Suppose that Chief Wiggum stops Homer, a driver, for driving with an expired registration sticker. Lets say that this is a misdemeanor, and that under local police department procedures, a driver stopped for such an offense is virtually never arrested, but is instead given a summons to be answered at a later date. On these facts, Homer is not really being "arrested," and his body, or his car, may not be searched incident to arrest. However, even in the case of such a non-custodial stop, a suspect may be required to step out of the car. Once he has stepped out of the car, presumably he may be subjected to at least a cursory frisk under the stop-and-frisk doctrine, discussed below.
Part IV: Exigent Circumstances in More Detail
Even where the search-incident-to-arrest exception to the search warrant requirement does not apply, there may be exigent circumstances that justify dispensing with the warrant requirement. The most common exigent circumstances are:
Preventing the imminent destruction of evidence;
Preventing harm to persons; and
Searching in "hot pursuit" for a suspect.
The police may conduct a search without a warrant provided that they have probable cause, and provided that the search is necessary to prevent the probable imminent destruction of evidence. A warrantless search may be allowed where danger to life is likely if the police cannot act fast. If the police are pursuing a felony suspect, and have reason to believe that he has entered particular premises, they may enter those premises to search for him. While they are searching for him, they may also search for weapons which, since he is still at large, he might seize. This is called the "hot pursuit" exception to the search warrant requirement. The "hot pursuit " exception is often combined with the "plain view" exception. That is, while the police are engaged in a hot pursuit of a suspect and any weapons he might have, they may seize any other evidence of criminal behavior that they stumble upon in plain vie One commonly-occurring situation does not automatically constitute "exigent circumstances": where the police are not in hot pursuit, and there are no specific exigent circumstances, the police may not enter one person’s private dwelling to arrest another, even if they are acting pursuant to an arrest warrant. Steagald v. U.S.
The "Plain View" Doctrine
The "plain view " doctrine is often applied to allow police who are on premises for lawful purposes to make a warrantless seizure of evidence that they come across. For the plain view doctrine to be applied so that a warrantless seizure of evidence is allowable, three requirements must be met:
First, the officers must not have violated the Fourth Amendment in arriving at the place from which the items were plainly viewed. Second, the incriminating nature of the items seized must be "immediately apparent". To put it another way, the police must, at the time they first see the item in plain view, have probable cause to believe that the object is incriminating. Finally, the officer must have a lawful right of access to the object itself . Remember that the plain view doctrine applies even where the police discovery of a piece of evidence that they want to seize is not inadvertent.
Searching Cars
It is crucial to look at the major exceptions to the warrant requirement in the context of automobile searches. Remember though that the general exceptions discussed above will frequently apply in the case of cars: For instance, exigent circumstances will often cause the warrant requirement to be suspended where a car search is involved. Similarly, recall that a car’s passenger compartment may be searched incident to the arrest of the driver or passenger.
There are two major automobile-specific exceptions that have developed to the warrant requirement:
When the driver is arrested, the car may be searched at the station-house even without a warrant; and
If the police reasonably believe that a car is carrying contraband, it may be subjected to a full warrantless search in the field. [This can mean drug dogs, x-ray and other scanners, as well as physical searches by officers and trained technicians]
Where the police arrest the driver, take him and his car to the station, and search the car there, no search warrant is generally required. Apparently the police have a right to impound the car after arrest and search it without a warrant even where they had advance notice and could easily have gotten a search warrant before the entire episode. Florida v. White This could be very bad!
Where the police have probable cause to believe that a car is being used to transport contraband, and they stop it, they may conduct a warrantless search not only of the car but also any closed containers in the car. They may do this on the scene, without even impounding the car. Once the police have probable cause to believe that the car contains contraband, they may search closed containers inside it that could hold that type of contraband, even if those containers belong to a passenger, and even if there is no probable cause to believe that the passenger has been involved in carrying the contraband or any other illegality. Wyoming v. Houghton Conversely, even if the police’s probable cause relates solely to a closed container inside the car, not to the car itself, the police may stop the car and seize and open the container, all without a warrant. California v. Aceved
If the driver’s conduct leads the police to make a proper stop and/or arrest, this does not mean that the officer has the right to search the person of any passenger who happens to be in the car. No matter what the driver has done, the officer may search a passenger only if the officer has either:
Probable cause to believe that the passenger possesses evidence of a crime, or
Probable cause to arrest the passenger (in which case the search is justified as being incident to arrest).
However, the officer does have several other rights regarding passengers:
As a method of protecting officer safety, the officer may demand that the passenger step out of the vehicle.
Also as a matter of protection, if the officer has a reasonable fear that the passenger may be armed or dangerous, he may frisk and pat-down the passenger, to make sure that the passenger is not carrying a weapon.
Finally, if the officer has the right to search the vehicle, he may as noted above also search any container in the car that might contain the thing being looked for, even if the officer knows that the container belongs to a passenger, and even if the officer has no probable cause to believe that the container contains that thing.
Of the various automobile scenarios that present an exception to the requirement of a search warrant, sometimes probable cause to make the search is required and sometimes it is not: Where the driver is stopped and the police want to search the car on the scene, they will normally need probable cause to conduct that search: belief that they will find either incriminating evidence or contraband. If the police find evidence in plain view in a vehicle as they are impounding it, they may seize the evidence even though they did not previously have probable cause to search or seize. If the car has been impounded by the police pursuant to standardized procedures, the police may usually conduct a search at the station-house even though they do not have probable cause. For instance, where a police department routinely tows cars for illegal parking, the police may unlock and search each such towed car in the impoundment lot. South Dakota v. Opperman Obviously, you are beginning to see the many dangers inherent in using your car as a storage locker for contraband and, also, the obvious risk in transporting anything illegal in your car.
Similarly, once the impounded vehicle is searched, even closed containers inside it may be subjected to a warrantless and probable-cause-less inventory search. But such warrantless inventory searches must satisfy two conditions:
The police must follow standardized procedures, so that the person searching does not have unbridled discretion to determine the scope of the search; and
The police must not have acted in bad faith or for the sole purpose of investigation. (Example: If the arrest or impoundment took place just to furnish an excuse for a warrantless search, the inventory-search exception will not apply). Colorado v. Bertine
Don’t make the mistake of thinking that every time the police validly stop a motorist, they may search that motorist’s car. There are times when no warrantless search is allowed even though the stop was proper. In particular, if the officer properly stops a car to write a traffic ticket, and does not make an arrest, the officer is not allowed, merely by virtue of the stop, to search the car. This is true even if under local law the officer could have made a custodial arrest for the traffic violation. Knowles v. Iowa But, if the cop pulls you over for speeding and smells the odor of drugs, sees a gun on the passenger seat, or some pills on the dash board, that would probably be sufficient probably cause.