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Exceptions to the Warrant Requirement

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Voluntarily acquiescing or complying with a request, by someone of sufficient mental capacity; a decision made in the absence of coercion or duress. Whether or not a party has given voluntary consent is determined by the totality of the circumstances.

Making contact with a suspect’s outer clothing in order to determine, through touch, whether or not a concealed weapon is present. An officer is not allowed to perform a frisk (or “pat-down”) to look for mere contraband, evidence of a crime, fruits of a crime, or instrumentalities of a crime, but only for the presence of a weapon that might put the officer or other people in the area at risk. A frisk is not a full search. If the frisk reveals the likely presence of a weapon, a more thorough search may be permissible, and anything found at that point can be used as evidence at trial.

There are six major exceptions to the warrant requirement.

1. Search Incident to Lawful Arrest
A search incident to lawful arrest does not require issuance of a warrant. In other words, if someone is lawfully arrested, the police may search her person and any area surrounding the person that is within reach (within his or her “wingspan”). See Chimel v. California, 395 U.S. 752 (1969). The rationale is that the search is permissible as a protective measure for police safety and to secure evidence that might be destroyed.

EXAMPLE: Pursuant to an arrest warrant, John is taken into custody in his home.  As the police escort John out of his house, they search the area within his wingspan. After securing John in his vehicle, the officers search the basement of the house. Any evidence gathered from the basement will be excluded because it was not within John’s wingspan as he left the home. 

A search incident to lawful arrest also applies to the search of a vehicle, specifically when officers arrest the occupants of a vehicle.  In Arizona v. Gant, 556 U.S. 332 (2009) the U.S. Supreme Court held that an officer may search a vehicle if the officer has a reasonable belief that the vehicle harbors weapons accessible to the arrestee (a continuing threat to officer safety) and/or if the officer believes the vehicle harbors evidence concerning the crime of arrest. 

2. Plain View Exception
No warrant is required to seize evidence in plain view if the police are legitimately in the location from which the evidence can be viewed. For example, an officer cannot illegally enter a suspect’s back yard and then use the plain view exception to seize an illegally kept alligator living in the pool. But, if on the premises to serve a warrant duly issued to search for marijuana plants, the alligator, if in plain view, can rightly (though by no means easily) be seized.

EXAMPLE: The police are called to Donald’s house by neighbors who see him beating up his wife, Victoria. After properly entering the house (without a search warrant – see emergency exception below), police notice Donald’s prized gun collection hanging on the wall. Fortunately for the officers, the guns are not loaded. Unfortunately for Donald, many of them are illegal and Donald is arrested for battery as well as for the illegal guns, which are seized.

3. Consent
If consent is given by a person reasonably believed by an officer to have authority to give such consent, no warrant is required for a search or seizure. So, if a suspect’s "significant other" provides police with a key to the suspect’s apartment, and police reasonably believe that she lives there, the search will not violate suspect’s Fourth Amendment rights even if she did not live there and even if she, in fact, lacked authority to consent. See Illinois v. Rodriguez, 497 U.S. 177 (1990).

EXAMPLE: Officer Warren knocks on a murder suspect’s door. The door is answered by the suspect’s 6-year-old child, Timmy. The officer asks Timmy, “Is it okay if I come in and talk to your Dad? He’s expecting me.” And then walks into the apartment. He then sees the suspect, Roland, sitting on the sofa oiling his illegal Tommy-gun, the suspected murder weapon. He arrests Roland for possession of the gun and seizes the evidence. Because Timmy, being a small child, was not legally able or authorized to give consent, the entry was illegal and the evidence will be excluded.

4. Stop & Frisk
Police may stop a suspect so long as there is a reasonable suspicion of a criminal act and the officer can articulate facts leading to that suspicion. The evidence necessary for “reasonable suspicion” here is something beyond mere suspicion, but is less than the level required for probable cause. If there is reason to believe that the person may be armed and dangerous, the police can also frisk the suspect. See Terry v. Ohio, 392 U.S. 1 (1968).

EXAMPLE: Officer P. Harker’s peers often joke that he has something akin to a “spidey-sense” which tells him when folks are up to no good. While enjoying a cup of coffee at his favorite donut shop, Officer Harker’s neck hairs stand up straight. He immediately goes outside where he sees Ivan walking down the street, carrying a small duffel bag. He orders Ivan to stop and drop the bag. When the bag falls, Officer Harker hears the clanging of metal against metal. He then frisks Ivan and discovers a hidden pistol in Ivan's pocket. He then searches the duffel bag and discovers ammunition and several illegal hunting knives. Despite the fact that Officer Harker’s “spidey-sense” proved accurate once again, the evidence will be excluded as he cannot articulate any reason why he stopped Ivan, other than his unusually active neck hairs.

5. Automobile Exception
Because vehicles are obviously highly mobile, a warrant is not required to search vehicles if police have probable cause to believe the vehicle contains evidence of a crime, the instrumentalities of crime, contraband, or the fruits of a crime. Although commonly referred to as the “automobile exception,” this rule applies to any vehicle, including boats. While in some ways, it is quite a broad exception, this rule limits the ability to search those areas that might contain evidence of the type suspected to be present. In other words, if police suspect that the occupant of a boat is smuggling people across the border, searching a small tackle box on board would not be permissible. However, if they were looking for drugs, they could search the tackle box. The rationale is that, if an officer has to take the time to obtain a warrant, the vehicle might be out of reach before the warrant can be issued and executed. See Carroll v. United States, 267 US. 132 (1925).

EXAMPLE: Officer Demidum has reason to believe that an abandoned car on the corner contains illegal drugs in the trunk. The car is missing all four wheels and is up on cinder blocks, and the engine was stolen long ago. Assuming that the automobile exception applies, Officer Demidum uses a crowbar to force open the still-working lock on the trunk. There, he finds 10 kilos of cocaine. Rushing back to the station house to show off the evidence to his Captain, Officer Demidum runs into Judge Sosad. Judge Sosad says “You should have called me first. While it’s great to get the drugs off the street, unfortunately we can’t use this as evidence against anyone. The search was illegal, as the automobile exception to the warrant requirement only applies when the vehicle is actually capable of being moved. That’s the whole point of the exception!” A dejected Demidum continues on to the station, where he has to tolerate cars drawn in shaving cream on his locker for the next month.

6. Emergencies/Hot Pursuit
The rationale here is similar to the automobile exception. Evidence that can be easily moved, destroyed or otherwise made to disappear before a warrant can be issued may be seized without a warrant. Furthermore, if a suspect enters private property while being pursued by officers, no warrant is required to enter that property in order to continue pursuit, even if the suspect is in no way connected with the property owner.

In Kentucky v. King, 563 U.S. 452 (2011), the U.S. Supreme Court clarified exactly how far the exigent/emergency exception applies.  In King, Kentucky police attempted to purchase illegal drugs from a suspect.  After the transaction, the suspect proceeded toward a nearby apartment complex.  An officer radioed that he saw the suspect go into the apartment on the right. When officers entered the apartment building, they smelled marijuana emanating from the apartment on the left, therefore, they knocked, extremely hard ("as loud as they could"), on the door and announced their presence. After the officers heard shuffling and a toilet flush, noises considered to be “consistent with the destruction of evidence," the officers kicked in the door and found a gentleman (not the original suspect) on a sofa smoking marijuana and cocaine. Upon further search of the apartment law enforcement located more illegal drugs and paraphernalia. At trial, King filed a motion to suppress, but was denied at both the state circuit court and court of appeals levels.  On review, the Kentucky Supreme Court reversed and held the search violated the Fourth Amendment.  The case then proceeded via writ of certiorari to the United States Supreme Court. The United States Supreme Court, reversing the Kentucky Supreme Court, held that no warrant was required because the officers faced exigent circumstances, an emergency situation, where it was reasonable to conclude that evidence was being destroyed. 

EXAMPLE: While running from police, Fred enters Joe’s garage and the police follow Fred in. (They are not required to give up pursuit until such time as they can obtain a search warrant for the premises.) While in Joe's garage, police notice illegal drugs in plain view. They can arrest Fred for his crimes, and they can also seize the drugs and arrest Joe for possession of the drugs, even though Joe had nothing to do with Fred and the police were in Joe’s garage only because of the hot pursuit of Fred!

Unless the fact-pattern fits one of the six exceptions discussed above, a warrant is required for police to conduct a search or seizure. Note that for Exception 1, search incident to a lawful arrest, and Exception 5, the automobile exception, although no warrant is required, there is a probable cause requirement. For a search incident to a lawful arrest, the officer must have had probable cause for the original arrest. If the original arrest was unreasonable or unlawful, the evidence discovered from the search will be excluded as fruit of the poisonous tree (see the subchapter on the Exclusionary Rule). For the Automobile Exception, the officer must have probable cause to believe that the vehicle contains evidence of a crime, instrumentalities of a crime, contraband, or fruits of a crime, whether the vehicle is moving or already stopped. Exception 4 ("stop and frisk") does not require probable cause, but does require "reasonable suspicion." Only Exception 3 (consent) requires no grounds on the part of the police for making the search.

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