Fourth Amendment: Exceptions to the Warrant Requirement (Part I)
The Founding Fathers wrote the Fourth Amendment after their experiences with British officials who would use general warrants and writs of assistance to enter private homes and conduct searches to find evidence of any crime. The Fourth Amendment outlaws this practice and requires that search or arrest warrants particularly describe the places to be searched or things being seized, and requires that they be issued by neutral and detached magistrates.
The United States Supreme Court has asserted that “the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable’ under the Fourth Amendment.” Still, there are exceptions to the idea that warrantless searches are always unreasonable. These exceptions are “jealously and carefully drawn” so that police must always seek a warrant, unless an exception applies.
In these presentations, we’ll look at the six major exceptions to the warrant requirement to better understand their scopes. The first three exceptions, covered in this presentation, are search incident to a lawful arrest, consent and plain view.
Search Incident to Lawful Arrest
Police do not have to have a warrant to conduct a search incident to lawful arrest. When conducting a lawful arrest, police may search the person, any area surrounding her, and any area within her wingspan. Courts permit such a warrantless search as a protective measure for police safety and to secure evidence that might be destroyed. Although it’s primarily meant to secure police from the threat of weapons being accessible to the person being arrested, the police may search and seize any contraband they find during such a search.
This exception was developed by the United States Supreme Court’s 1969 decision, California v. Chimel. In that case, police conducted a one-hour search of the defendant’s home after he was arrested for alleged involvement in a coin store burglary. The search revealed coins, medals and other items that led to his conviction for burglary. While the Court invalidated the search as excessive and unreasonable, it established that police may search the area within immediate reach of a person being arrested. Justice Potter Stewart wrote “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction…”
Since Chimel, several cases have analyzed the scope of this exception. In the 2009 cases, Arizona v. Gant, the Court concluded that police may search the vehicle from which a person is being arrested if police reasonably believe that the occupant could access the vehicle at the time of the search, or that the vehicle contains evidence of the offense that led to the arrest. On the other hand, the exception doesn’t apply to searches of a defendant’s cellphone after his arrest. In Riley v. United States, San Diego police found David Riley in possession of firearms during a search after arresting him for driving on a suspended license. Police accessed Riley’s cellphone, which was in his pocket, to examine photographs and videos, and saw photographic evidence of gang affiliations. Riley’s attorneys sought suppression of the evidence, arguing that the search violated his Fourth Amendment rights and the Court agreed, prohibiting warrantless cell phone searches in all but exigent circumstances. None of the two justifications for the exception articulated in Chimel, officer safety and destruction of evidence, would justify police searching a cellphone without a warrant.
The second exception to the warrant requirement is consent. Consent, by definition, waives the Fourth Amendment right against warrantless searches. The consent exception is important and practical in application. One study completed in the last ten years found that 90% of warrantless searches are based on consent. To be valid, consent must be “freely and voluntarily.” However, it’s important to note that police need not inform people of their right to refuse searches. So, for example, at a traffic stop, a police officer may ask for consent to search the vehicle. If the driver agrees, the consent is valid even if the driver had no idea that he had the right to refuse.
The government carries the burden of proving that a defendant freely and voluntarily provided consent. In the 1973 case Schneckloth v. Bustamonte, the Court explained voluntary consent. There, police stopped an automobile and asked the vehicle occupants if they could search the automobile. The defendant replied, “Sure, go ahead,” and during the subsequent police search, police found three checks that had previously been stolen from a car wash. The Court found that there was no Fourth Amendment violation. Both defendants and the police testified that the interactions between the two parties were congenial and there were no discussions of crime. One of the defendants even attempted to aid in the search. For consent to be nullified, the facts must demonstrate that police used duress or coercion to obtain consent.
A wrinkle to the consent exception is that police can obtain consent from a person other than the person who owns the property that is being searched. A third party who law enforcement reasonably believes has authority to give such consent can allow police to search another’s property, as in the case of a babysitter who allows police to search the house. If police reasonably believed that the babysitter was the homeowner, her consent is valid. Determining whether an officer’s belief that a third party may consent on behalf of another is reasonable is a fact-specific evaluation.
Law enforcement officers do not need warrants to seize evidence of criminal activity in plain view if they are legitimately in the locations from which the evidence can be viewed. The Supreme Court explained that a person “generally goes not have a legitimate expectation of privacy in contraband left in the open which is viewed by an officer from a lawful vantage point.”
In the seminal case, Horton v. California, the defendant and an accomplice were suspected of having used a machine gun and a “stun gun” to steal cash and jewelry. The search warrant only allowed police to search for the stolen property and did not include authorization to search for the weapons. When police executed the warrant, they didn’t find any stolen property, but did find guns in plain view. The search was permissible.
Three requirements must exist for the exception to apply. First, police must be in the area legally. Second, police must observe the item of criminality in plain view. Finally, the incriminating nature of the evidence must be immediately apparent, meaning that there needs to be a connection between the viewed object and illegal conduct.
The plain view exception also applies to allow police to seize contraband that is visible from public places, such as drug paraphernalia visible from the street through an open window.
In the following presentation, we will discuss the three more exceptions to the warrant requirement: stop and frisk, the automobile exception and exigent circumstances.
 Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79-105 (1937).
 U.S. Const. amend. IV.
 Jones v. United States, 357 U.S. 493, (1958).
 United States v. Robinson, 414 U.S. 218, (1973).
 Barbara Salken, “The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses,” 18 Pace L. Rev. 97, (1997).
 Wayne Logan, “An Exception Swallows a Rule: Police Authority To Search Incident to Arrest,” 19 Yale L. & Pol'y Rev. 381, (2001).
 Chimel v. California, 395 U.S. 752, (1969).
 Arizona v. Gant, 556 U.S. 332, (2009).
 Riley v. California, 134 S. Ct. 2473, (2009).
 Leslie Shobotham, “The Strife of Riley: The Search-Incident Consequences of Making an Easy Case Simple,” 75 La. L. Rev. 29, (2014).
 Ric Simmons, “Not ‘Voluntary’ but Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine,” 80 Ind. L.J. 773, (2005).
 Bumper v. North Carolina, 391 U.S. 543, (1968).
 Schneckloth v. Bustamonte, 412 U.S. 218, (1973).
 Ill. v. Rodriguez, 497 U.S. 177, (1990).
 Minnesota v. Dickerson, 508 U.S. 366, (1993).
 Loren Newman, “Horton v. California: Searching for a Good Cause,” 46 U. Miami L. Rev. 455, (1991).
 Horton v. California, 496 U.S. 128, (1990).