Chapter 5
Arrests and Searches
Without Warrants
Copyright © Allyn & Bacon
2007
Introduction: Moving beyond the
Warrant Requirement
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The Fourth Amendment would be easy to
understand without exceptions to the warrant
requirement
This chapter focuses on exceptions to the
warrant requirement based on probable cause
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I. EXCEPTIONS TO THE WARRANT
REQUIREMENT
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There are five types of warrantless searches
and seizures that require probable cause:
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Searches incident to arrest
Searches and seizures in the presence of exigent
circumstances
Searches involving automobiles
Arrests in public places
Searches based on the plain view doctrine
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A. Searches Incident to Arrest
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Chimel v. California (1969) created the search
incident to arrest exception
Chimel permitted a search contemporaneous
to arrest
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1. On the Importance of a Lawful
Arrest, the Offense, and Custody
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The arrest must be lawful
The arrest must result in a person being taken
into custody (Knowles v. Iowa, 1998)
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2. Timing of the Search
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Probable cause to arrest must precede the
warrantless search
The search incident to arrest should take place
soon after the arrest
A delayed search is permissible when:
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An immediate search is impossible
Exigency exists at the time of the delayed search
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3. Scope of the Search
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Chimel v. California (1969) created the
“grabbing area,” “armspan rule”
Maryland v. Buie (1990) permits protective
sweep attendant to search incident to arrest
Protective sweep authorized PRIOR to arrest
and search incident to arrest, but reasonable
suspicion is required
Can secure premises pending warrant
Can search passenger compartment of car and
containers therein incident to lawful arrest,
without a warrant (New York v. Belton, 1981)
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B. Searches Based on Exigent
Circumstances
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Exigent circumstances are emergencies
Certain emergencies permit dispensing with
the warrant requirement
Three types of exigencies can be identified:
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Hot pursuit
Possibility of danger to others and/or escape
“Evanescent” evidence
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1. Hot pursuit
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Warden v. Hayden (1967) was the first to
recognize hot pursuit
Requirements:
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Probable cause that suspect is on premises
Probable cause that suspect will escape and/or cause
harm to others or evidence
Must originate in lawful vantage point
Only applies to serious offenses
Search must be contemporaneous with attempted
apprehension of suspect
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2. Escape and Endangerment to
Others Absent Hot Pursuit
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Suspect could potentially escape and/or cause
harm to others or evidence absent hot pursuit
Not terribly common
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3. Evanescent Evidence
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Evanescent evidence is that which is likely to
“disappear” if police are forced to wait for a
warrant
Breithaupt v. Abram (1957) upheld
warrantless needle injection for the purpose of
obtaining a blood sample
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A key to this decision was that medical personnel
conducted the “search”
Also, there was no time to obtain a warrant, there
was a clear indication the evidence would be found,
and the search was conducted in a reasonable
manner
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4. Offense Seriousness and Exigent
Circumstances
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The Supreme Court has been hesitant to find
exigent circumstances with minor offenses
Unfortunately, it is not clear what constitutes a
minor offense
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5. The Role of Police-Created
Exigencies
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Some lower courts have held that the
government cannot claim exigent
circumstances when it is responsible for the
emergency
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C. Automobile Searches
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Carroll v. United States (1925) created the
automobile exception to the warrant
requirement
In Carroll, the Court declared that the
warrantless search of an automobile is
permissible when (1) there is probable cause
to believe the vehicle contains evidence of a
crime and (2) securing a warrant is impractical
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1. Rationale
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Three arguments can be offered in support of
the automobile exception
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Impractical to obtain warrants
Diminished expectation of privacy
Vehicles subject to government regulations
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2. Requirements
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There are three general requirements for a
valid warrantless vehicle search:
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Must be limited to automobiles
Must be premised on probable cause, unless the
search is for inventory purposes
Must be impractical to obtain a warrant
Term “automobile” includes cars, boats,
planes, trucks, etc.
In general, if the setting “objectively indicates
that the vehicle is being used for
transportation,” then the automobile exception
applies.
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(continued)
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Factors used in determining whether a vehicle
serves a transportation function are: (1)
whether it is mobile or stationary; (2) whether
it is licensed; (3) whether it is connected to
utilities; and (4) whether it has convenient
access to the road
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3. Scope of the Search
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As extensive as that authorized by a warrant
USSC recently authorized drug dog sniff of
vehicle during routine traffic stop
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4. When Other Doctrines Govern
Searches of Automobiles
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Warrantless searches of automobiles can be
based on the following additional exceptions to
the warrant requirement:
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Search incident to arrest
Stop and frisk
Plain view
Inventory
Consent
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D. Racial Profiling
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Whren v. United States (1996) permits
pretextual stops
Remedies for profiling include:
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Fourteenth Amendment equal protection claims
Title VI of the Civil Rights Act of 1964
The New Jersey Supreme Court imposed strict
limits on consensual auto searches,
interpreting the state’s constitution to mean
that before asking for a driver’s permission to
search, a police officer must have “reasonable
and articulable suspicion” of criminal activity.
Copyright © Allyn & Bacon 2007
E. Arrests Based on Exigent
Circumstances
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Exigent circumstances justify warrantless
entry into private homes for the purpose of
making an arrest
One of the following must be present:
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Hot pursuit
Danger to officers
Danger to third parties
Potential for escape
Potential for destruction of evidence
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F. Arrests in Public Places
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So long as probable cause is in place, the
police can make warrantless arrests in public
places
Also, warrantless arrests in the curtilage of
people’s home are sometimes authorized
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G. The Doctrine of Plain View
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The plain view doctrine emerged in Coolidge v.
New Hampshire (1971)
A plain view seizure is authorized when:
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The police are lawfully in the area
Items are “immediately apparent” as subject to
seizure
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1. The Lawful Access Requirement
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For the plain view doctrine to apply, the police
must have lawful access to the object to be
seized
There are four specific situations where police
officers can have lawful access
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During a warranted search
When the officers are in a lawful vantage point
during a valid arrest
When a warrantless search is conducted
When “nonsearches” are conducted.
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2. The “Immediately Apparent”
Requirement
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In addition to the requirement that the police
have lawful access to an object for the plain
view doctrine to apply, it must also be
“immediately apparent” that the object is
subject to seizure
“Immediately apparent” means that the officer
has probable cause to seize the object
(Arizona v. Hicks, 1987)
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3. The Role of Inadvertency
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In Horton v. California (1990), the Court
declared that inadvertency, although a
“characteristic of most legitimate ‘plain view’
seizures, ...is not a necessary condition” of the
doctrine.
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4. Plain Touch, Feel, and Smell
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In recent years the Court has extended the
plain view doctrine to incorporate additional
senses, especially smell (United States v.
Place, 1983) and feel (Cf. Minnesota v.
Dickerson, 1993)
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5. Plain View as a Fallback Measure
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There are countless situations where the plain
view doctrine would seem to apply, but when
the courts base their decisions on other
doctrines
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