| Introduction | | | | and could escape before a warrant is obtained. |
| In a related article, we discussed the 4th Amendment | | | | - Consent: A warrantless search may be made of a |
| right to be free from unreasonable searches and | | | | person who validly consents to a search or seizure. |
| seizures. According to the 4th Amendment, | | | | The consent must be made knowingly and intelligently, |
| government officials may conduct a search if they | | | | and not under circumstances of duress or coercion. |
| have probable cause to believe that the person has | | | | - Stop and frisk: Police may stop a person and frisk |
| incriminating evidence in their possession. They must | | | | them if they have reasonable suspicion that the person |
| also secure a valid search warrant from a neutral and | | | | might be armed and dangerous, or implicated in a |
| detached judge. | | | | crime. Note that a stop and frisk is different from a |
| Under some circumstances, the police may conduct a | | | | traditional search in that police only need reasonable |
| search without a warrant. Usually these circumstances | | | | suspicion to conduct a stop and frisk rather than |
| have to do with emergencies and police safety. Such | | | | probable cause.Reasonable suspicion is a lower level |
| a search is known as a warrantless search. This | | | | of suspicion than probable cause. Probable cause |
| article explains when the police may conduct a | | | | requires actual facts, while reasonable suspicion does |
| warrantless search. | | | | not. Also, the stop and frisk is limited to a frisk for |
| Warrants in General | | | | weapons on the person, and police may not open any |
| When securing a warrant, police must describe in detail | | | | containers they discover on the person. |
| the place to be searched or the item to be seized. The | | | | - Plain view: Police may confiscate (seize) any |
| warrant must be issued by a judge who is neutral and | | | | evidence that they see in plain view. They must have |
| detached from the investigation. If one cannot identify | | | | probable cause to seize the evidence, and also they |
| the particular place or item, then the warrant is invalid. | | | | must be on the premises legitimately. If they are on the |
| Mistakes in the warrant do not carry a penalty for the | | | | premises illegally, the item discovered in plain view is |
| officer so long as they are relied upon in good faith. | | | | subject to the exclusionary rule and will not be allowed |
| Police searches are limited to the areas and items | | | | as evidence in court.For example, let's say officers |
| described in the warrant except in the circumstances | | | | respond to a domestic disturbance and validly enter a |
| described below. | | | | home to address the situation. If while inside, they see |
| Warrantless Searches- When They May be | | | | illegal drugs in the living room on a table, they may |
| Conducted | | | | confiscate them. Plain view also means "plain senses" |
| Over the years courts have issued rulings regarding | | | | in that police may not use viewing or listening devices |
| when police may conduct a warrantless search. | | | | to discover evidence under this exception. |
| Warrantless searches that occur most frequently are | | | | - Hot pursuit/ evanescent evidence: Police may |
| listed below. These are referred to as "exceptions to | | | | apprehend (stop) a suspect who is fleeing. This is |
| the warrant requirement": | | | | called the "hot pursuit" exception to the warrant |
| - "Warrantless search incident to a lawful arrest": If | | | | requirement. In their pursuit, police may enter buildings |
| police are undertaking a valid arrest, they may search | | | | without a warrant if necessary to pursue the suspect. |
| the person for weapons and contraband. Note that the | | | | Police may also seize evidence that is in danger of |
| arrest must be valid, and they must have probable | | | | being destroyed or is subject to disappearing. A |
| cause for the arrest itself.The search is limited to an | | | | common example of this is drugs that are about to be |
| area known as the suspect's "wingspan", i.e., an area | | | | discarded or flushed down a toilet. This is known as |
| within reaching distance of the suspect. The wingspan | | | | the "evanescent evidence" exception to the warrant |
| search is also called a "protective sweep" and serves | | | | requirement. Evanescent means "tending to vanish", |
| as a safety measure for the officer's protection. | | | | and so police would not have time to secure a |
| - "Automobile search exception": Police may search an | | | | warrant before the evidence is gone. |
| automobile that they have validly pulled over. They | | | | Conclusion |
| must have a valid reason for the initial stop, though the | | | | These are the most common exceptions to the |
| initial stop may be for a different reason than for a | | | | warrant requirement in search and seizure law. Such |
| search. This is called the "automobile search exception" | | | | warrantless searches are not considered to be |
| to the warrant requirement.For example, police may | | | | "unreasonable", even though the person may have a |
| pull over a car for a traffic violation, and then search | | | | legitimate expectation of privacy. They are considered |
| the car for evidence if they have probable cause that | | | | to be reasonable searches because the urgency of |
| the car is carrying contraband. Searches of containers | | | | the situation outweighs the person's privacy interest. |
| within the car are limited to those that could contain | | | | They have generally been accepted by both the |
| evidence. The main idea here is that cars are mobile | | | | courts and the public. |