CRIMINAL PROCEDURE
CLASS FOUR
Today’s Topics

Search Incident to Arrest
 Pretext Arrest
 Plain View and Plain Touch
 Automobile Searches
 Exigent Circumstances
 Special Needs Searches
 Administrative Searches
SEARCH INCIDENT TO
ARREST
Search Incident to Arrest

Major exception to warrant requirement
 Accepted practice when Bill of Rights
adopted
Scope of Search

Suspect’s “grab” area

Reasonable to search for both
– Weapons
– Evidence [contrast Terry]
Post-Arrest Movement

What impact on search incident to arrest
when arrestee is allowed to move around to
different areas?
Contrast with Protective
Sweep

Conduct: quick and limited search of
premises
 Purpose: looking for individual posing
danger to officer or others
 Not automatic right
 Requires reasonable suspicion (Terry)
 Spatial limitations
Search of Person

Rule: With lawful custodial arrest, full search of
person justified under 4th Amd

Rationales:
– Need to disarm person to take into custody
– Need to preserve evidence

Is search limited by type of crime for which person
arrested?
Search of Person

Assume custodial arrest based on probable
cause, what other justification is needed?

What if officer has discretion to make full
custody arrest to just issue a summons or
citation?
Impact on Automobiles

Bright Line Rule: Contemporaneous to
arrest of occupant, police may search
passenger compartment

Includes all containers found -- open or
closed

What is a container?
Search Incident to Citation?

Search incident to citation is NOT the same
as search incident to arrest
PRETEXT STOPS &
ARRESTS
Concerns

Fear: Police might take advantage of
relatively minor offense to forage for
evidence of greater crimes

Fear exacerbated if initial stop or arrest was
motivated by impermissible reason, such as
race
Exercise

Identify 3 key arguments on each side of
debate
Supreme Court’s Response

Fact that officers had probable cause to believe D
had violated traffic code renders stop reasonable
under 4th Amd
 Only in very few areas has Court allowed officer
motive to invalidate objectively justifiable
behavior under 4th Amd
 If race-based selection, proper remedy is equal
protection challenge
Executive Branch Responses

National

State

Local
Plain View/Plain Touch
General Rule

Object of incriminating nature can be seized
without warrant if in “plain view” of officer
lawfully present at the scene
Relationship to Warrant
Clause

Not an exception to warrant requirement

Independent justification for seizure of
goods taken
Caution

Plain view applies to warrantless seizure

It does not authorize warrantless search for
an item
Requirements

Officer within scope of lawful authority
 Probable cause that object is evidence of
crime [or contraband]
 Probable cause immediately apparent
[further search not necessary]
Expansion to Other Senses

Plain hearing

Plain smell

Plain touch [plain feel]
Car Searches
Areas of Concern

Should there be an “automobile” exception
to the warrant requirement?

If so, what is its basis --- car’s inherent
mobility, or reduced expectation of privacy?

What about property that can be moved in
and out of cars?
Historical Conflict

Object placed in car
[probable cause precedes]
– Chadwick [officers wait
until footlocker is taken
from train and put in car]
– Saunders [officers wait
until suitcase placed in taxi]

Object found during
search of car
– Ross [informant tells
officers D dealing
drugs from trunk;
police stop car]
Contemporary Test

Acevedo

Police may search an automobile and
containers within it where they have
probable cause to believe contraband or
evidence is contained in car

One rule governs all automobile searches
Distinguish Search Incident to
Arrest

Search incident to arrest needs no other
justification

Search incident to arrest is limited to
passenger compartment
Distinguish Search Incident to
Arrest

“Automobile exception” is exception to
general warrant requirement

Probable cause required to justify search
under automobile exception
Application to Passengers

Acevedo and precursor cases involved
warrantless searches of containers clearly
owner by car’s driver

Issue: Does automobile exception apply to
search of passenger possessions in the car?
Balancing Interests

Government
– Effective law
enforcement
– Ready mobility
– Passenger often
engaged in common
enterprise with driver

Individual
– Reduced expectation of
privacy
– Traveling thorough
public thoroughfares
– Seldom serve as
repository for personal
effects
– Subject to stops
(pervasive gov’t
control)
Holding

Officers with probable cause to search a car
may inspect passenger belongings found in
the car that are capable to concealing the
object of the search
Exercise

Is the Supreme Court correct in its
conclusions about expectations of privacy in
cars? Are cars frequently a repository for
personal effects?
EXGIENT CIRCUMSTANCES
Concept

Exception to warrant requirement

Theory: Impractical for officer to get
warrant

Implication: Immediate action required
Examples

Hot Pursuit
 Safety
 Evidence Destruction
Application Questions

Is type of crime a significant factor?

Can doctrine be applied to permit seizing
premises while warrant being obtained?

Can doctrine be applied to permit restricted
access to premise while warrant being
obtained?
SPECIAL NEEDS
SEARCHES
Concepts

Analyzed under “reasonableness clause” of
4th Amd

Searches made for purposes distinct from
traditional law enforcement
Purposes Distinct from
Traditional Law Enforcement

Might include:
– Enforcing school policy
– Upholding public safety
– Promoting administrative efficiency

Contrast traditional law enforcement needs:
– Detect crime
– Prosecute offenders
Balancing Test


If challenged conduct is supported by
special needs beyond criminal law
enforcement, then Court uses balancing test
Need for search vs.
 Degree of invasion on personal rights
Potential Hallmarks

Search or seizure conducted for reasons
either unrelated or only indirectly related to
investigation of prosecution of crime
 Those conducting often are not police
officers [although they can be]
 Those subject to conduct often are not
criminal suspects
ADMINISTRATIVE
SEARCHES

Safety Inspection of Homes
 Safety Inspection of Business
 Warrantless entry into probationer’s home
Types of Justification

Administrative probable cause
 Area-wide warrant
 Statute/regulation offering warrant
equivalent
Heavily Regulated Business

Examples: liquor, pawnshops, weapons dealers,
mines

3 criteria to support warrantless inspection
– Substantial gov’t interest that informs regulatory
scheme
– Warrantless inspection necessary to further
– Inspection program must provide constitutionally
adequate substitute for warrant [certainty and
regularity of application]