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