Exceptions to the Warrant Requirement - Module 3 of 5

Module 3: Exceptions to the Warrant Requirement

Courts frown upon searches and seizures outside of the judicial process. Thus, the general principle is that searches or seizures “conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.”[1] Nevertheless, many exceptions to the warrant requirement have emerged which justify a search or seizure without a warrant. In this module, we will begin our discussion on the exceptions to the warrant requirement by discussing stop and frisk, consent, the plain view doctrine and searches incident to lawful arrests.

Stop & Frisk

            Stop and frisk refers “to a brief, non-intrusive police stop of a suspect.”[2] Although it has been the subject of much criticism, it is nevertheless a constitutionally acceptable police practice.

Stop and frisk is an exception to the warrant requirement of the Fourth Amendment and is also an exception to the requirement of probable cause. Stop and frisk originated in Terry v. Ohio.[3] In Terry, an officer observed three men walking back and forth past a store window. Officer McFadden, a 39-year veteran of the Cleveland police force, suspected that they were “casing it” to rob the store. After observing them, Officer McFadden confronted them and proceeded to pat them down. The officer felt a revolver in one of the men’s pockets and pulled it out. 

Prior to trial, the defendant moved to suppress the gun on the grounds of illegal search and seizure. The Supreme Court held that the stop and frisk was constitutional. Although subject to a Fourth Amendment analysis because the “stop” constituted a seizure and a pat down frisk was comparable to a search, the Court applied a modified Fourth Amendment analysis to circumstances in which police subject a person to a stop and frisk rather than a full search. 

The Court ruled that stops and frisks do not require full probable cause. Rather, the Court held that “in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” The Court held that “reasonable suspicion” was the appropriate standard in this case.[4]  

The Court made clear that a stop and a frisk has to be analyzed separately under this analysis. For a stop, there must exist the “presence of facts within the officer's personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime.”[5] For a frisk, the Court found that a “reasonable search for weapons was permitted for the protection of the police officer, where the officer has reason to believe that he or she is dealing with an armed and dangerous individual, regardless of whether probable cause exists to arrest the individual for a crime.”[6] The Court framed the issue regarding a frisk as “whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger.”[7]

            The Court made distinctions between a stop and an arrest and a frisk versus a full-blown search. The Court indicated that the “stop” in a “stop and frisk” is a brief and investigatory encounter. It is distinguishable from an arrest, in which a reasonable person would not feel free to leave due to the actions of police. A frisk, which is a brief pat down of the outer clothing of a person for officer safety, is not a full-blown search where the officer probes for evidence of a crime.[8] These distinguishing factors formed the basis behind the Court’s conclusion that these encounters need not be supported at the level of probable cause, and that reasonable suspicion is sufficient.

Plain Feel Doctrine

            A legal stop and frisk does not come with the right to put his hands in the person’s pockets nor does it allow the officer to conduct a full-fledged search. Still, there is an important exception called the “plain feel doctrine,” which was explained by the Supreme Court in Minnesota v. Dickerson.[9] The Dickerson Court held that when an officer conducts a pat down during a stop and frisk for weapons, if the officer feels something on the person that is clearly contraband, the officer can seize that evidence without a warrant.[10] 

Let’s look at an example. Suppose an officer observed two people in a high-crime neighborhood. Upon noticing the officer, they started briskly walking away. The officer runs after them and puts them against the wall and frisks them for weapons. Upon patting them down, the officer feels a gun on the waist of one of them. A court would look at the circumstances to determine whether the stop and frisk here was appropriate. The stop possibly could be justified based on the peoples’ behavior. However, without more, it would likely be insufficient to justify the pat down as it’s a stretch to say that walking away from a police officer without more, justifies reasonable suspicion.

If the facts were slightly changed, however, and one of the people held his waistband as he was running and, when approaching that person, the officer observed him moving a hand towards the waistband to pull something out, the officer would likely be justified in conducting a stop and frisk. Now suppose the officer, when patting down the person, did not feel any weapons, but clearly felt a bag of drugs in the person’s pocket. The officer would be justified in reaching into that person’s pocket and seizing the contraband under the plain feel doctrine. However, if the officer already knew that the person had no weapons and conducted the pat down anyway, it would not be justified and the fruits of any such pat down would be inadmissible.

Plain View Doctrine

The plain view doctrine stemmed from the reasoning that one generally does not have a reasonable expectation of privacy in contraband left out in the open for public view. The plain view doctrine provides that “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.”[11] Generally, this is a 3-step analysis: (1) police must be in a position to view the object; (2) the police must lawfully be in that position; and (3) the incriminating character of the evidence must be apparent. In the Dickerson case we just discussed, the Supreme Court declared that if “the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object,” in other words, the incriminating character of the object is not readily apparent, then the seizure of the object cannot be justified under the plain view doctrine.[12] 

As an example, suppose there was recently a string of television store burglaries, but police had no suspects. Assume that officers are inside a person’s house after having been invited inside. While inside, they saw a new television that matched the description of TV’s sold by a store that was recently burglarized. The officers seized the television. The television was brought to the station and, upon further investigation, it was determined that this television was, in fact, stolen. 

A court analyzing this case would likely conclude that officers were in a position to view the television and were lawfully in that position since they were invited into the house. However, the incriminating character of the television was not readily apparent without further investigation, and the officer seized the object on a “hunch.” Of course, nothing about a new TV itself indicates that it was stolen, as little distinguishes one TV of the same model from another.

In these circumstances, the plain view doctrine would not justify the warrantless seizure of the television and, as such, the court would likely conclude that the seizure violated the Fourth Amendment. On the other hand, if there was a distinct marking on the TV that matched that of a TV that was reported stolen (say, engraved initials or a scratch in a specific spot on the set), that could justify the conclusion that it was readily apparent that the TV was stolen, justifying the seizure.

Consent

People can consent to waive their Fourth Amendment rights. Consent allows officers to search without a warrant, probable cause or even reasonable suspicion. Warrantless searches based on consent are the most prevalent types of searches undertaken by police. In fact, estimates show that over 90% of warrantless searches are done because the person consented to the search.[13] 

Note that, unlike in the case of a confession, police do not need to tell people of their right to refuse searches. Police may strongly request permission to search cars or homes and it is not a valid defense to say that the defendant didn’t know he had the right to refuse the search. Still, the consent must not be coerced or forced.

            For example, suppose a man is stopped for running a red light. The officer pulls the driver out of the car, starts questioning the driver about where he was, what he was doing and where he is going. Unsatisfied with the answers he’s getting, the officer screams at the defendant and tells the defendant to “tell him the truth.” The officer, while yelling at the defendant, places his hand near his taser gun. The driver, who clearly is nervous and shaking, asks the officer what he wants. The officer then tells the driver that he wants to search the car - a request to which the driver agrees. The court would consider the circumstances to determine whether the consent was voluntary. In this case, the most likely conclusion is that giving the consent was not free and voluntary, as the circumstances took away meaningful choice from the driver. As such, this was an probably an unlawful search.

Valid Consent Must be a Product of Free Will

The Supreme Court has held that for consent to be valid, due process requires that the consent be freely and voluntarily given. It wasn’t until Schneckloth v. Bustamonte,[14] in 1973, however, that the Court defined “freely and voluntarily.”[15] The Court, citing case law pertaining to the determination of the voluntariness of confessions, held that the Court must consider the totality of the circumstances to determine whether the consent was a “product of an essentially free and unconstrained choice by the person consenting."[16] The Court examined this based on both subjective and objective factors. Factors to be considered include the defendant’s age and level of awareness and even intelligence, the nature of the consent, the location where the defendant consented and the surrounding circumstances. Over time, even though Bustamonte remains good law, the test to determine whether consent was freely and voluntarily given transformed into more of an objective analysis of the circumstances.[17] In United States v. Drayton, the Court concluded that the issue of the voluntariness of consent is based on a determination of whether a “reasonable person would understand that he or she is free to refuse.”[18] Put simply, the determination of valid consent is based on all the surrounding factors to determine whether the consent was the product of coercion or freely given.

Third-Party Consent

            The next issue is what happens when the consent to search possessions comes from a third person – someone other than the owner of the possessions.  In Illinois v. Rodriguez, the Court held that the products are admissible if the police have a reasonable belief that the owner or someone authorized consented. Even if officers are mistaken, so long as the “facts available to the officer at the moment . . . ‘warrant a man of reasonable caution in the belief' that the consenting party had authority over the premises” then the consent to search would be valid under the Fourth Amendment.[19] 

However, the Court has later declared that if the defendant is present at the location and objects to the search—notwithstanding the other party’s consent to the search—then the warrantless search is unreasonable.[20] The determination of valid consent, whether directly from the defendant or from a third party, is always going to be determined on a case-by-case basis by considering the circumstances.

Search Incident to a Lawful Arrest

            Another exception to the warrant requirement was carved out by the Supreme Court for a search incident to a lawful arrest. In Chimel v. California,[21] the Court was dealing with a case in which officers searched the defendant’s house for evidence following the defendant’s arrest for burglary. The Court established the principle that officers can conduct a “search of the arrestee's person and the area ‘within his immediate control’ . . . from within which he might gain possession of a weapon or destructible evidence.”[22] Subsequent cases have clarified that a lawful arrest allows searches of an arrestee’s person and “wingspan,” which has been extended to allow police to search the interior of a person’s car, including the passenger seats (but not the trunk) when the driver is being lawfully arrested.[23]

Still, there are limitations to how far a search incident to a lawful arrest can be taken. Arizona v. Gant[24] dealt with a defendant who was arrested for driving with a suspended license. The officer confronted the defendant after his car was parked and he was about ten feet away from his car. After handcuffing the defendant and placing him in the police cruiser, the officer searched the defendant’s car and found a gun and a bag of cocaine.[25] The Court, though reaffirming Chimel and the warrant exception for the search incident to a lawful arrest, held that a search incident to arrest could take place only for officer safety or for preservation of evidence. As such, the officers can only search within the area of the person’s reach or if it is reasonable to believe that the area contains further evidence of the crime for which the defendant was arrested.[26] As Gant was already secured and in the back of the police car and as he was not even in the car when arrested, searching the car was unreasonable. The Court held that the search of a car incident to a lawful arrest is allowable only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest.

            Understanding the rationales of Chimel and Gant (protect the police and safeguard evidence) is important to determining the constitutionality of a search incident to a lawful arrest. Suppose a person is driving his car and is weaving between lanes. An officer, concluding that the driver must be intoxicated, pulls the driver over. The officer smells a strong odor of alcohol coming from the driver. The officer asks the driver to step out of the car and brings the driver to a flat area, 20 feet away, to perform a field sobriety test. After the driver fails the field sobriety test, the officer arrests the driver and puts him into the back of the police cruiser. The officer then proceeds to search the driver’s car and finds empty bottles of beer. 

Under the search incident to a lawful arrest exception to the warrant requirement, the court could determine that this was a lawful search, even under Gant. Although the court would not be able to justify the search based on officer safety since the driver was already handcuffed and in the back of the police cruiser, the court could hold that this was a search for evidence of the crime for which the driver was arrested—i.e., driving while intoxicated. The discovery and preservation of evidence may be used to justify the search.

In our next module, we will continue our discussion on the exceptions to the warrant requirement and what courts consider to be reasonable searches notwithstanding the lack of judicial determination of probable cause.