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Fourth Amendment-Warrant Requirement Exceptions (Part II)

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Fourth Amendment-Warrant Requirement Exceptions (Part II)

            In our previous presentation, we looked at three exceptions to the Fourth Amendment’s warrant requirement. This presentation will explore three more: the “stop and frisk” rule, the automobile exception and exigent circumstances.

Stop and Frisk

            Police may stop someone without a warrant to pat down that person for weapons when there is reasonable suspicion of that he has committed a criminal act or is in the process of preparing to do so. Reasonable suspicion is not as high a standard as probable cause, but does require that the circumstances surrounding the event justify the suspicion.[1]

            This exception was formed in Terry v. Ohio, a seminal case in American criminal procedure history. While on a routine beat, Cleveland Police detective Martin McFadden noticed a group of men pacing in front of a jewelry store. Concerned that the men were “casing a job” McFadden went up to the three, frisked them and found a pistol in John W. Terry’s pocket.[2] McFadden arrested and charged Terry with carrying a concealed weapon.

The United States Supreme Court affirmed the conviction, holding that an officer can stop and briefly detain an individual to determine whether criminal activity is underway.[3] During the detention, the officer may pat down the detainee for weapons. A “Terry stop,” as it’s come to be called, allows only a “pat down” reasonably calculated to discover concealed weapons. It does not allow the police officer to reach into the detainee’s pockets or otherwise conduct a more invasive search. Of course, if the officer does feel what appears to be a weapon during the pat down, the officer may then reach into the pocket and withdraw it.

            The “stop and frisk” rule has wide-ranging consequences in this era of heightened security fears across the United States. Many police departments across the country routinely use the device to maintain law and order. Because most stop and frisks turn up no weapons and where they do, arguing that there was no reasonable suspicion becomes difficult since a weapon was, in fact, discovered, there is little constitutional check on the practice. The debate of whether stops and frisks reduce crime and whether the decreased liberty interest is justified by the benefit of the practice remains controversial.[4]

Automobile Exception

            Another exception to the warrant requirement is the automobile exception. Police do not need to get a warrant to search a vehicle if they have probable cause to believe that there is evidence of a crime, contraband, or fruits of a crime inside the vehicle.

The Supreme Court, in Carroll v. United States, explained that it wasn’t practical for police to obtain a search warrant prior to searching a vehicle for contraband or other evidence of a crime because a vehicle is mobile and can easily be moved from the “locality or jurisdiction in which the warrant must be sought.” So long as police have probable cause to believe that evidence of a crime is in the car or that a vehicle is connected to a criminal act, then they can conduct a warrantless search.

Probable cause is a fairly high standard to meet. Merely being pulled over for speeding or even behaving nervously or suspiciously after being pulled over does not give officers probable cause to search the car. Probable cause requires something more, such as, for example, a witnesses’ tip that there is contraband in the car or a statement of one of the occupants to that effect. In a 2005 case, Illinois v. Caballes,[5] the Supreme Court ruled that drug-sniffing dogs indicating the presence of marijuana in a car was sufficient to establish probable cause and allow a search of the car.

            The breadth of the automobile exception has been expanded to cover vehicles other than automobiles. In United States v. Villamonte-Marquez, law enforcement boarded a private boat to inspect the owner’s documents, but then began to search the entire boat when they smelled marijuana.[6] They found marijuana during the search. The Court permitted the warrantless search, finding that it was reasonable because the government has an interest in inspecting vessels in the open seas without a warrant.[7] They, too, are mobile, and can be moved during the process of seeking the warrant.

Exigent Circumstances

            Finally, there is an exigent circumstances exception to the warrant requirement. If police have reason to believe that there is a bona fide emergency, they may enter premises to investigate and remedy. For example, if police officers passing by house hear someone scream from the inside, they may enter the house to determine if anybody’s in danger. If, while in the house, they see illegal weapons or drugs in plain view, they may seize those drugs under the plain view exception.

Exigent circumstances can also apply when there is a probability that evidence can be destroyed or moved before a neutral and detached magistrate can issue a warrant. Law enforcement can then search property or seize evidence without one.[8] This, of course, is also the rationale behind the automobile exception.[9]

Ancillary to the “exigent circumstances” rule is the “hot pursuit” rule. This is, if a fleeing criminal enters a private home, police in hot pursuit may also enter the home to effectuate a lawful arrest. While there, any contraband that is seen also falls under the plain view exception to the warrant requirement.

Law enforcement carries the burden of proving that exigent circumstances exist. In a 2011 Supreme Court case, Kentucky v. King, the Court shed light on the scope of the exception’s application. There, Lexington police knocked on the door of an apartment from which emanated a marijuana smell.[10] After loudly identifying themselves, police heard movement inside and a toilet flush. Fearing the destruction of evidence, police entered the apartment and found Hollis King smoking marijuana and found other illegal drugs in the apartment. King was convicted of drug trafficking and related offenses.

            The Kentucky Supreme Court held that police violated King’s Fourth Amendment rights and that the exigent circumstances exception to the warrant requirement did not apply.[11] The United States Supreme Court disagreed, holding that no warrant was required to go into King’s apartment and conduct a search because the officers faced an emergency situation where it was reasonable to conclude that the apartment’s residents were destroying evidence. 

Our nation’s founding fathers crafted the Fourth Amendment to ensure that Americans would no longer be subject to general and arbitrary searches that were so prevalent during British rule. This bulwark against unreasonable interferences into our lives has evolved over time and some argue that courts have allowed exceptions that have swallowed up the warrant requirement.[12] New York University School of Law Professor Oren Bar-Gill criticized the warrant exceptions, writing, “…what was once a ‘warrant requirement’ is now a rule so laden with exceptions that it best resembles a piece of Swiss cheese, a state of affairs increasingly accepted as the new normal.” While many are not prepared to go that far, it is clear that exceptions to the warrant requirement make up a critical area in fourth amendment jurisprudence.






[1] David Harris, “Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked,” 69 Ind. L.J. 659, (1994).

[3] Terry v. Ohio, 392 U.S. 1, (1968).

[5] 543 U.S. 405 (2005)

[6] Thomas McInnis, The Evolution of the Fourth Amendment, (2009).

[7] United States v. Villamonte-Marquez, 462 U.S. 579, (1983).

[8] Clifford Fishman, “Electronic Tracking Devices and the Fourth Amendment: Knotts, Karo, and the Questions Still Unanswered,” 34 Cath. U.L. Rev. 277, (1985).

[9] Mincey v. Arizona, 437 U.S. 385, (1978).

[10] http://www.npr.org/2011/01/12/132869081/High-Court-Weighs-Warantless-Entry

[11] Kentucky v. King, 563 U.S. 452, (2011).

[12] Thomas McInnis, The Evolution of the Fourth Amendment, (2009).