Search Warrant Exceptions
Ted Belling
Revised 2-12-12
One of the most significant expressions of police power and authority over a citizen is the
execution of a search of that citizen’s person or property. The unchecked government intrusion
into the personal effects of any citizen was abhorrent to the founding fathers of this country.
Because of this, the Fourth Amendment to the United States Constitution was written:
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
These words are the bedrock on which all statutory and case law involving searches is based.
Statutory law is the codified law passed by the lawmakers at different levels of government.
These laws allow legislative control and oversight of the law enforcement officers in their
jurisdictions in regards to the Fourth Amendment. These laws primarily deal with the practical
application of the Fourth Amendment (Form and wording of search warrants, manner of
obtaining and executing search warrants, procedures for obtaining telephone warrants, etc.). Case
law is law established through judicial decisions. A judge interprets the statutory and
Constitutional laws and applies these laws to infinitely variable real life situations. Because of
the difficulties created by these variables, there is a large volume of case law that has been
established to deal with them. Many of these cases establish exceptions to the Fourth
Amendment requirement of a warrant. It is fairly easy for police officers to understand and
follow the statutory law. Officers, however, have a much harder time understanding and applying
case law to the work they do in the field, especially, when dealing with the exceptions.
Every time a court creates new case law, the court gives a detailed reasoned explanation for the
decision. It is very important that police officers learn the reasoning the court applied when it
rendered its decision. It is within this reasoning that the officers find the tools they need to make
proper decisions in the field. As I mentioned earlier, the courts craft their decisions not just to
address the case at hand, but to try and provide a reasonable solution to all the other variables
that can affect similar situations. The thread of reasoning used in the precedent case will
generally be followed throughout all subsequent cases of similar law.
Now that I have you totally confused, let me explain what I mean by all this. Each time a court
hears a case and renders a decision, the decision only technically applies to that case. Logic,
however, tells us that the court will be consistent and render the same decision in similar cases.
Therefore, if a court rules that a particular action by an officer violated someone’s Constitutional
rights, any officers that repeat this action will also be in violation.
It seems like a simple thing to understand and apply the Fourth Amendment. The officer must
have probable cause that evidence is in a particular place. The officer swears out a warrant
before a judge. The officer then serves the search warrant and finds the evidence. The realistic
application of the Fourth Amendment, however, is far more complicated. The practical
application of the Fourth Amendment, as written, only works in certain situations. The one place,
for example, where the courts have held sacrosanct is the home. Barring exigent circumstances
or consent, a search warrant is required to search a person’s home. In many other situations,
however, it was clearly unreasonable to strictly apply the Amendment. Therefore, exceptions
were made.
There are basically thirteen exceptions to the warrant requirement under the Fourth Amendment.
They are:
1.
Exigent circumstances
2.
Stop and frisk
3.
Search incident to arrest
4.
Custodial
5.
Plain view
6.
Vehicle
7.
Border
8.
Open fields
9.
Abandoned property
10.
Consent
11.
Administrative
12.
Probation search
13.
Protective sweep
1. Exigent circumstances are situations where immediate action is necessary. If the officer takes
the time to get a warrant, evidence will be destroyed, life could be lost, or the suspect could
escape. It is time consuming to get a warrant. First, the officer has to get the physical description
of the place to be searched. A detailed affidavit, describing all the elements required by the court
including the probable cause information, has to be crafted. In many jurisdictions, the District
Attorney’s office has to review the affidavit. A judge then has to be contacted for his approval
and signature. During normal business hours, this can take two to three hours. At night, or on
weekends or holidays, this can take much longer. The Ninth Circuit Court in the case of United
States v. McConney, 728 F.2d 1195, 1199 1984) provides a good definition of exigent
circumstancesEmergency conditions. 'Those circumstances that would cause a reasonable person to believe
that entry (or other relevant prompt action) was necessary to prevent physical harm to the
officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some
other consequence improperly frustrating legitimate law enforcement efforts.'
Common sense clearly dictates that if someone’s life was in danger, any delay increases the
likelihood life will be lost. It is unreasonable to put an officer in the position of choosing
between saving a life, and bringing the perpetrator to justice. The officer will always choose
saving the life. If the courts mandated that even under these circumstances a warrant must be
obtained to properly retrieve and use evidence against the defendant prior to entering his
residence, the “exclusionary rule”, Mapp v. Ohio could literally cause the defendant to get away
with murder.
The practical application of exigent circumstances is that the officer can enter a home or business
without a warrant. The officer is limited to taking steps in ending the emergency. The officer can
retrieve and secure any evidence found in plain view, but cannot conduct a full search. Once the
situation is stabilized, the officer is required to obtain a search warrant to continue searching for
evidence.
The following cases illustrate exigency. Under most circumstances, officers are able to conduct
drug investigations with enough secrecy that the suspect is not aware of a pending police search.
Search warrants are obtained in compliance with the Fourth Amendment. When a police officer,
however, inadvertently discovers probable cause that drugs are in a house, and the suspect is
aware of this, the officer may have exigency to enter the residence without a warrant. In the case
of US v. Cephas, a police officer knocked on Cephas’s door. When Cephas opened, the officer
smelled the odor of burning marijuana coming from the residence. Marijuana is an easily
destroyed drug. It can be ingested, burned, flushed, or washed down the sink. If the officer had
left to obtain a search warrant, it would be very likely the officer would find no evidence upon
returning with the warrant. The officer, therefore, had an exigency to enter the residence and
secure it. The officer found some marijuana in plain view. A search warrant was obtained.
Further drugs and guns were found. The Sixth Circuit Court applied the same reasoning in the
case of US v. Carter. The situation was similar, except that Carter was in a motel. The officer
smelled burning marijuana coming from the room. He entered and found evidence in plain view.
Further, the Tenth Circuit Court ruled that an odor of a methamphetamine lab justified the
warrantless entry of a residence because of an explosion risk, US v. Rhiger.
2. Stop & Frisk, also known as a “Terry Stop”, is a search warrant exception allowed solely for
officer and bystander safety. The case of Terry v. Ohio deals with two separate issues. The first
involves the legality of the officer’s seizure of the suspect. The second deals with the officer’s
authority to submit the suspect to a pat search without a warrant. In the “Terry” case, a Cleveland
detective observed suspects casing a business. Based on his observations, he had reason to
believe that the suspects were about to commit a robbery. He was concerned for his safety and
for the safety of others nearby when he stopped them. He pat searched the outer garments of one
of the suspects and found a gun. The detective did not have a search warrant. He did not have
probable cause that the suspect was armed, and he did not have probable cause that he had
committed a crime. So, why was the officer able to legally search the suspect? The court ruled
that the officer was able to articulate enough reasonable suspicion that the suspect was about to
commit a robbery. Since weapons are usually used in robberies, the officer was justifiably
concerned the suspect was armed. The court stated, “Though the police must whenever
practicable secure a warrant to make a search and seizure, that procedure cannot be followed
where swift action based upon on-the-spot observations of the officer on the beat is required.”
The officer for safety reasons was justified in conducting a limited pat search of the suspect’s
outer garments for a weapon.
3. Search incident to arrest goes beyond a “frisk” or “pat” search. A search incident to arrest is
the thorough search of the suspect and his immediate area conducted contemporaneous to the
arrest. The purpose of this search is to look for means to escape, prevent the destruction of
evidence, and to secure any weapons. There has been some controversy over the search of a
suspect’s vehicle incident to arrest. Many courts have ruled that a search incident to arrest of a
suspect’s vehicle is allowed if conducted contemporaneous to the arrest. Other courts, however,
have ruled that a search incident to arrest of the suspect’s vehicle is not justified if the suspect is
secured in the patrol vehicle. These courts have reasoned that a suspect could not possibly escape
from the patrol vehicle, get to his vehicle, and obtain a weapon or destroy evidence. The United
States Supreme Court settled this in the recent case of Arizona v. Gant . The Court addressed the
searching of the vehicle for officer safety and the search for evidence or contraband. The Court
established that a search of a vehicle incident to arrest could occur under the following
conditions:
•
•
•
•
•
There was a lawful custodial arrest.
The search was contemporaneous to the arrest.
The arrestee was an occupant of the vehicle at the time or just before the arrest.
The search is limited to the passenger area of the vehicle.
There has to be a real possibility that the arrestee or other occupants who are in or
near the vehicle can obtain a weapon from the vehicle before it can be searched
for officer safety.
•
A search for evidence or contraband is limited to circumstances where there
reasonably may be evidence in the vehicle that is related to the crime that lead to
the arrest.
4. Custodial search is the search of a person’s property after he has been arrested and submitted
for detention. This type of search is an administrative search done for the purpose of
inventorying and securing the personal effects for safekeeping. Although evidence is often found
during a custodial search, this is not the primary reason for it. The goal is to protect the officer
and the employer, as well as the owner of the property in case theft or damage occurs or false
allegations are made. Therefore, there is no Fourth Amendment violation. The same reasoning
applies to the custodial inventory of a vehicle when impounded by an officer, U.S. v. Edwards.
5. Plain view is fairly self-explanatory. Any item that an officer has probable cause to believe is
associated with criminal activity that he sees in plain view can be seized without a warrant.
Although this is simple to understand, several circumstances over the years needed judicial
clarification. One of the earlier cases was United States v. Lee. The court in this case said that
police can use spotlights and binoculars to enhance their ability to observe evidence. There is
also no Fourth Amendment violation to observe something that is visible to the naked eye while
traveling in an airplane or helicopter in public airways, California v. Ciraolo. The police are
further allowed to use vision enhancement equipment as long as it is accessible to the public,
Dow Chemical Co. v. United States. The undercurrent to these cases that is important to
understand is that the officer must be in a place that he has a lawful right to be when the evidence
is observed. All the cases so far have dealt just with the observation of evidence. What happens
if the officer manipulates the item observed to determine if it is evidence by picking it up or
moving it? As I mentioned earlier, the officer must have probable cause to believe the item is
associated with criminal activity. If he has probable cause, he is permitted to manipulate the
item, i.e. look at the serial number. Curiosity or reasonable suspicion is not enough to move the
item, Arizona v. Hicks. The main points to remember when a plain view situation occurs are:
•
•
The officer must have a lawful right to be where the item is viewed.
The officer must have probable cause to believe the item is associated with
criminal activity.
6. Vehicle searches-The advent of vehicles such as automobiles and airplanes did not create a
unique situation for the United States Supreme Court. The court recognized historical facts that
extended to the beginnings of this country to rely on in addressing Fourth Amendment search
warrant concerns over these types of vehicles. The very Congress that proposed and adopted the
amendments to the U.S. Constitution recognized a difference between the search and seizure of
stolen or forfeited goods, or goods subject to a duty, and the personal effects searched or seized
for evidence. There have been numerous statutes enacted by Congress through the history of this
country that allow for the warrantless search of ships, boats, wagons, vessels, and other means of
transportation for contraband goods. All of these statutes withstood judicial scrutiny. The
Congress and courts recognize that the inherent mobility of these vehicles allows them to quickly
move beyond jurisdictional boundaries, and escape the enforcement of a search warrant. The
citizens of this country, however, would find it reprehensible for an officer to stop and search
their vehicles without justification. The United States Supreme Court addressed this issue in the
case of Carroll v. U.S. The court ruled that a warrantless search of a vehicle stopped in transit
could be searched without a warrant if the officer had probable cause to believe the vehicle was
transporting contraband or evidence. In the Carroll case, the search was conducted at the scene
contemporaneous to the stop and the subsequent development of probable cause. Does the
warrant exception continue if the vehicle has to be moved to a different location for the search to
occur? In the case of Chambers v. Maroney, police officers stopped a vehicle and arrested the
occupants for armed robbery. The vehicle was moved to the station for the search because it was
safer and better illuminated there. The court decided that, if the officers had probable cause to
search at the scene, it was reasonable for them to move the vehicle to the station for processing.
The officers did not need a warrant to search the vehicle after it was moved. This action was
reaffirmed in the case of Texas v. White. The court further added in the case of United States v.
Ross that the search conducted could be as thorough as a search authorized by a search warrant.
These cases turn on the facts that the vehicle was stopped on traffic upon which probable cause
was established, and the vehicle was kept in police possession until the search. What if probable
cause was developed during the inventory of a vehicle impounded for safekeeping? In the cases
discussed up to this point, the United States Supreme Court has allowed the warrantless search of
vehicles stopped on traffic based on probable cause because of their mobility. The probable
cause was developed prior to the police taking the vehicle into custody. An impounded vehicle
has been taken into police custody. If probable cause is developed after this point, is a search
warrant required to search the vehicle? A police officer, for example, finds illegal drugs in the
vehicle during the inventory. He can conduct a search of the vehicle without a warrant. There is
no Fourth Amendment violation, Michigan v. Thomas. Further, if the officer has probable cause,
the vehicle can also be searched after it has been secured in the impound yard, Florida v. Meyers.
7. Border searches consist of the inspection of persons, conveyances, and goods passing through
the borders of the United States. The inspection is done to protect the security of the United
States, locate contraband or stolen property, and locate and seize items on which duty has not
been paid. The Congress of the United States has, since the founding of this country, recognized
the need to search persons and property entering the country. The Congress has enacted laws
allowing these warrantless searches. These laws do not conflict with the Fourth Amendment,
Boyd v. U S. The searches can occur at the border or at its functional equivalent (i.e. an inland
airport receiving international flights).
8. Open fields are not protected under the Fourth Amendment. The Fourth Amendment only
protects "persons, houses, papers and effects,” Hester v. US. Open fields do not fall within any of
these categories. What does “open fields” exactly mean? Open fields encompass any open,
undeveloped property that is not intimately used for dwelling (including curtilage) or business.
The status of an open field does not change even if a fence secures the property and “no
trespassing” signs are erected, Oliver v. United States. If a police officer suspects that there is
marijuana being grown, a whiskey still in operation, stolen vehicles being stored, etc. in the
wooded area of a farmer’s back forty acres, he can walk out there and look without a warrant.
9. Abandoned property is any property in which the owner relinquishes possession. When the
property is abandoned, the owner no longer has any expectation of privacy over that property as
protected by the Fourth Amendment. This is constructively done when the owner leaves the
property unsecured in a public place, or takes any other measures to surrender ownership.
Abandoned property that is rendered accessible to other members of the public is equally
accessible to the police. When a suspect flees from the police and throws down a bag of illegal
drugs, the drugs were abandoned. When a person leaves a satchel on a park bench, it is
abandoned. A resident that removes trash from the curtilage of the residence and places it by the
curb no longer has a privacy interest in it, California v. Greenwood.
10. Consent searches are conducted with the express permission of the owner or person with
custody and control of the item(s) searched. When a person gives consent to search, he forgoes
his right to require the police to obtain a search warrant. Although a police officer may seek
consent to search, it must meet certain requirements. The main requirement is that the consent
must be voluntarily given. The officer does not have to advise a person not in custody of the
Miranda warnings, or tell the person that he could refuse the consent. The court, however, will
take into consideration these and all other facts in determining if the consent was voluntary,
Schneckloth v. Bustamonte. The court will side with the defendant if the officer coerces consent,
such as falsely asserting his authority by claiming he possessed a search warrant, Bumper v.
North Carolina. An officer can obtain a verbal consent without any documentation or recording.
This, however, is unnecessarily risky. A police officer’s word carries weight with the court, but
unforeseen events can occur that may lessen this weight, clouding the officer’s veracity. Many
times this happens, not because of officer mistakes, but because of good lawyering, leading to
the exclusion of evidence. The officer should use as much ammo as possible to strengthen the
case against the defendant. When obtaining consent to search, use a well-crafted consent to
search form when possible. A properly crafted form greatly bolsters the establishment of
voluntariness. When asking a person to give consent to search, it is the responsibility of the
officer to determine certain things. The officer first must establish that the person giving consent
has the authority to do so. The person must be the owner of the item, vehicle, or location being
searched, or have legitimate custody and control. The person must also possess a level of
maturity and mental ability to understand the nature and consequences of giving consent. If the
person due to immaturity or mental illness cannot be held criminally responsible, then consent
from this person probably would not be considered voluntary.
11. Administrative searches are warrantless inspections generally of businesses that need to be
closely regulated. Examples of these types of businesses are nursing homes, restaurants, junk
yards, nuclear power plants, etc. The state and/or federal government has substantial interest in
how these businesses are operated. For administrative searches to be valid, the following criteria
must be met:
•
•
•
•
There must be a “substantial” government interest supported by a regulatory
scheme.
Inspections must be necessary to carry out the regulatory scheme.
The government statutes must notify the business that warrantless inspections will
occur, Donovan v. Dewey.
The statutes establish the scope of the inspections and limit the inspectors’
discretion, Marshall v. Barlow’s, Inc.
Searches at airline security checkpoints are a form of administrative search. They are not stop
and frisk type pat-down searches that require reasonable suspicion.
12. Probation search is a search of a person on probation and his property and residence. A
person convicted of a crime and released on probation often has a search requirement as a
condition of release. If the person agrees to the conditions of release, he obviously agrees to
being searched without a warrant. The United States Supreme Court said that the search is
reasonable under the Fourth Amendment. The court weighed the interests of the probationer’s
right to privacy against the government’s right to “further the two primary goals of probation-rehabilitation and protecting society from future criminal violations.” The court ruled that a
warrantless search requirement as a condition to being released from custody is legitimate, US v.
Knights.
13. Protective Sweep is a limited search of the premises that is quickly done. The purpose of this
type of search is to protect the officers on the scene from being attacked by persons undetected in
other parts of the premises. A protective sweep can be conducted without reasonable suspicion
for the areas immediately adjoining the location of arrest. To expand the search to all rooms of
the premises requires at least reasonable suspicion that the officers’ safety are in danger,
Maryland v. Buie.
These thirteen exceptions to the Fourth Amendment search warrant requirement were crafted by
the courts to deal with circumstances that make it impractical or unsafe to obtain a warrant. I
briefly touched on the reasons given for the exceptions in each section. The best way to
understand the full reasoning for these decisions is to read each case. Each cited case is a link to
the full case. I strongly encourage you to read them.
****************************************************
Mapp v. Ohio, 367 U.S. 643 (1961)-The US Supreme Court applied the "exclusionary rule" to the states.
Any evidence illegally obtained by the government cannot be used in court against the accused.
US v. Cephas, No. 004780P(4th Cir.)(2001)
US v. Carter, 03a0017p.06 (2003)
United States v. Rhiger, 315 F.3d 1283 (2003)
Terry v. Ohio, 392 US 1(1968)
Arizona v. Gant, ___US No. 07-542No. 07-542 (2009)
U.S. v. Edwards, 415 U.S. 800 (1974)
United States v. Lee, 274 U.S. 559 (1927)
California v. Ciraolo, 476 U.S. 207(1986)
Dow Chemical Co. v. United States, 476 U.S. 227(1986)
Arizona v. Hicks, 480 U.S. 321(1987)
Carroll v. U.S., 267 U.S. 132 (1925)
Chambers v. Maroney, 399 U.S. 42 (1970)
Texas v. White, 423 U.S. 67 (1975)
United States v. Ross, 456 US 798 (1982)
Michigan v. Thomas, 458 U.S. 259 (1982)
Florida v. Meyers, 466 U.S. 380 (1984)
Boyd v. U S, 116 U.S. 616 (1886)
Hester v. US, 265 U.S. 57 (1924)
Curtilage-The area immediately surrounding a residence that "harbors the 'intimate activity associated
with the sanctity of a man's home and the privacies of life.'"
Oliver v. United States, 466 U.S. 170 (1984)
California v. Greenwood, 486 U.S. 35 (1988)
Miranda v. Arizona 384 U.S. 436 (1966)
Schneckloth v. Bustamonte, 412 US 218 (1973)
Bumper v. North Carolina, 391 US 543 (1968)
Donovan v. Dewey, 452 U.S. 594 (1981)
Marshall v. Barlow’s, Inc.,436 U.S. 307 (1978)
US v. Knights, 000 US 00-1260 (2001)
Maryland v. Buie, 494 U.S. 325 (1990)