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WARRANTLESS SEARCHES
§ 3.01 “Reasonableness Balancing” Standard
[A] Terry v.
Terry v. Ohio, 392 U.S. 1 (1968), made constitutionally permissible warrantless searches and seizures in limited circumstances. The Supreme Court ruled that in determining whether the Warrant and Probable Cause clauses of the Fourth Amendment apply to a given search and/or seizure, the “central inquiry” is the reasonableness of the government's activity under the circumstances; “reasonableness” is assessed by balancing the need to search or seize against the invasion the search or seizure entails. This is known as the “reasonableness balancing” test. [See § 3.02 for further discussion of Terry v. Ohio.]
[B] “Reasonable Suspicion”
Suspicion is “reasonable” if the officer can point to specific and articulable facts that, along with reasonable inferences from those facts, justify the intrusion. Reasonable suspicion that a crime has been or is being committed may be based on one or more of the following information:
[1] Hearsay
Hearsay may support an officer's reasonable suspicion of criminal activity where:
(1) the tip carries enough indicia of reliability to justify a Terry stop. Adams v. Williams, 407 U.S. 143 (1972). E.g., the informant identifies himself or has provided reliable information to the police on a prior occasion.
(2) a tip lacking sufficient indicia of reliability is corroborated such that the totality of the circumstances justifies the Terry stop.
An uncorroborated anonymous tip can never serve as the sole basis for a Terry stop. Florida v. J. L., 529 U.S. 266 (2000) (reasonable suspicion not found where the police received an anonymous tip that a young black male wearing a plaid shirt standing at a particular bus stop was carrying a gun and where the police observed a person matching the informant's description, but noted no suspicious conduct suggesting criminal activity was underfoot).
[2] Criminal Profiles
An officer's observations may properly be supplemented by consideration of the typical modes of behaviors of certain kinds of criminals. For example, in drug-trafficking cases, an officer's suspicions can be buttressed by his awareness that the suspect's conduct or appearance conforms to a so-called “drug-courier profile,” which is a set of characteristics purportedly often associated with drug traffickers, compiled by law enforcement agencies.
[3] Flight in “High-Crime Areas”
Unprovoked flight, when coupled with other factors – such as the presence of the police in a high-crime area – can constitute reasonable suspicion to justifying a search and/or seizure, at least in the absence of circumstances that suggest the flight is motivated by a non-criminal purposes.
[4] Suspect's Race or Ethnicity
Terry stops based solely on the race of a suspect are impermissible. However, race or ethnicity, when coupled with other factors, may give rise to reasonable suspicion. For example, courts have sometimes treated “racial incongruity” – the presence of a person of a particular race or ethnic group in a neighborhood where such group is not ordinarily found – as one legitimate factor in evaluating the lawfulness of a stop.
[C] Length of the Detention
The justifiability of a seizure on less than probable cause is predicated in part on the brevity of the detention, although there is no bright-line time limitation to a Terry-type seizure. Compare United States v. Place, 462 U.S. 696 (1983) (90-minute detention of person suspecting of carrying narcotics in his luggage in order to subject the luggage to a dog-sniff test was held excessive in length) with United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (16-hour detention was upheld where a woman, who was suspected of having swallowed narcotics-filled balloons in order to smuggle them, refused to undergo an x-ray, and was thus detained until she had a bowel movement).
In determining whether a detention was excessive in length, the court may consider whether a less intrusive method was available and whether the police acted unreasonably in failing to recognize it or to pursue it.
[A] Holding of Terry v.
At issue in Terry was a pat-down of a suspect that the officer observed apparently “casing” a store in order to rob it. The Court found that the brief restraint and pat-down did constitute a search and seizure. Next applying the reasonableness balancing test, the Court weighed society's interest of effective crime prevention and detection – which would be impaired if the police could not confront suspects for investigative purposes on less than probable cause – and the police's legitimate immediate interest in ensuring that the suspect is not armed, against the invasion of the suspect's personal liberty. The Court held that the police conduct was constitutional, stating that when an officer has reason to believe that the suspect is armed and dangerous, the officer has the constitutional authority to conduct a search for weapons without probable cause or a warrant.
[B] Weapon Searches of Persons
The purpose of the Terry search is limited to the sole purpose of determining whether the suspect is armed. While the appropriate manner of the protective search depends on the specific circumstances, generally, the proper technique, as approved in Terry, is as follows:
(1) If an officer feels no object during a pat-down, or feels an object that does not appear to be a weapon, no further search is justifiable.
(2) If the initial pat-down – with no further touching – provides the officer with probable cause for believing that an object felt is contraband or other criminal evidence subject to seizure, he may pull out the object without a warrant, as part of the plain-touch doctrine.
(3) If the officer feels an object that he reasonably believes is a weapon, the officer may conduct a search by removing the object from the suspect.
(4) If the object he pulls out is a container, he may feel the container to see if it might contain a weapon inside.
(5) If his suspicions regarding the container are not reasonably dispelled by its size, weight, and feel, the officer may, at a minimum, retain possession of the container.
(6) If the container could not reasonably contain a weapon, it may not be searched or seized.
[C] Weapons Searches of Automobiles
The police may search the passenger compartment of an automobile, limited to those areas in which a weapon may be found, if the officer reasonably believes that the suspect is dangerous and may gain immediate control of a weapon.
§ 3.03 Temporary Seizures of Property
Terry principles apply to seizures of property as well as to seizures of persons. Thus, for example, police officers may, without a warrant, temporarily seize luggage on the basis of reasonable suspicion that it contains narcotics, in order to investigate further, such as to conduct a dog-sniff test of the luggage.
§ 3.04 Searches and Seizures of the Body
The taking of a blood, urine or breath sample, or subjecting the suspect to other intrusions of the body, e.g., an x-ray, may be permissible without a warrant if:
(1) the police are justified in requiring the individual to submit to the test; and
(2) the means and procedures employed are reasonable.
Schmerber v. California, 384 U.S. 757 (1966) (withdrawing a blood sample from the defendant without a warrant was found justifiable on the ground that the evidence—the alcohol in the bloodstream—would have been lost if the police had been required to obtain a warrant).
Exigent circumstances can justify a warrantless entry of a home to make a felony arrest or to conduct a search related to a serious offense under the following circumstances:
(1) hot pursuit of a fleeing felon;
(2) imminent destruction of evidence;
(3) the need to prevent a felon's escape; or
(4) risk of harm to the police or others.
The exigent-circumstances exception does not generally apply to cases involving minor offenses. Welsh v. Wisconsin, 466 U.S. 740 (1984) (warrantless entry of the defendant's home in order to arrest him for drunk driving was unconstitutional; the Court rejected the state's argument that the entry was necessary in order to collect a blood sample for testing before evidence of alcohol consumption was “destroyed”).
Warrantless entry of a home may also be permitted in order to respond to emergency situations, such as when the police reasonably believe that a person within is in need of immediate aid. However, in such circumstances, the police are acting in a care-taker capacity, not an investigative capacity.
§ 3.06 Searches Incident to Arrest
[A] Areas That May be Searched Without a Warrant
Regardless of whether or not an arresting officer suspects weapons, evidence, or dangerous persons will be discovered, contemporaneous with a custodial arrest, an officer may conduct a warrantless search of:
[1] Arrestee's Person
The search of an arrestee may include pockets of his clothing, and any containers found therein, as well as containers immediately associated with him, such as a briefcase or shoulder bag, that are large enough to conceal a weapon or evidence of a crime.
[2] Area Within the Arrestee's Immediate Control
[a] Generally
Factors to consider in determining the arrestee's “grabbing area” are:
[b] Arrests Within a Home or Other Structure
Some courts apply a “one-room” rule allowing a search of the entire room in which the arrest occurred, regardless of the other circumstances.
Aside from those areas within a residence to which the “search-incident-to-arrest” exception applies, the police may not search the entire house without a warrant. Chimel v.
[c] Arrests on the Road
When an occupant (driver or passenger) of an automobile is arrested, the police may conduct a warrantless search of the passenger compartment and all containers found therein, whether the containers are open or closed.
[3] Immediately Adjoining Spaces
If the arrest occurs in a home, “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” may be searched without a warrant.
[B] Probable Cause to Seize
A police officer may seize without a warrant any article found during the search upon probable cause to believe that it is criminal evidence related to the immediate or another crime, even though probable cause is not necessary to conduct the search.
[C] Full Custodial Arrest
The search-incident-to-lawful-arrest rule applies to arrests in which the officer takes the suspect into full custody, which includes transporting him to the police station for booking. It does not apply, however, when an officer temporarily detains a suspect. Knowles v.
[A] Searches at the Scene
A police officer may conduct an immediate warrantless search of an automobile that the officer has probable cause to believe contains contraband, fruits, instrumentalities, or evidence of a crime if:
(1) the officer stops the vehicle traveling on a public road; or
(2) the officer discovers the vehicle parked, but apparently capable of operation, in a non-residential location, such as a public parking lot or gas station.
[B] Searches Away From the Scene
A warrantless search of an automobile that would be valid if it were conducted at the scene, is also permissible if it takes place shortly thereafter away from the scene, such as if the police impound the vehicle and subsequently conduct the search. The Supreme Court has authorized delays of a few days, United States v. Johns, 469 U.S. 478 (1985), but found a year-long delay unreasonable, Coolidge v.
[C] Searches of Containers
Containers, even one belonging to a passenger who is not suspected of criminal activity, may be searched without a warrant during an otherwise lawful automobile search provided the container is large enough to hold the criminal evidence for which the police are searching. Any container that constitutionally can be searched at the scene may also be seized and searched without a warrant shortly thereafter, at the police station.
§ 3.08 Plain View and Related Doctrines
[A] “Plain View”
A police officer lawfully present at the scene may seize without a warrant an object of an incriminating nature if it is in “plain view” of the officer. An article is in plain view if:
(1) the police officer observes the object from a lawful vantage point – i.e., the officer's presence is not in violation of the Fourth Amendment. Generally speaking, an officer will be in a lawful vantage point during: the execution of a valid search warrant; an in-home arrest pursuant to an arrest warrant; a search justified under an exception to the warrant requirement; or an activity that does not constitute a search and, therefore, falls outside the scope of the Fourth Amendment.
(2) the police officer has a lawful right of physical access to the object – i.e., an officer's ability to view an object is not necessarily accompanied by authority to seize it, e.g., an officer may view marijuana growing in a suspect's backyard from the street but nevertheless needs a warrant to search the suspect's property.
(3) its nature as contraband, fruit, instrumentality, or evidence of a crime is immediately apparent upon observation.
[B] Inadvertent Discovery
If an officer anticipates discovery of a particular item, the plain view doctrine does not cure his failure to obtain a warrant or to include it in a warrant to search for other items. In such cases, the warrantless search and seizure of such object violates the Fourth Amendment. Coolidge v.
[C] “Plain Touch”
The Supreme Court has recognized a “plain touch” or “plain feel” corollary to the plain view doctrine.
[D] “Plain Hearing” and “Plain Smell” Doctrines
Lower courts have similarly expanded on the “plain view” doctrine to recognize “plain hearing” and “plain smell” principles.
§ 3.09 Automobile Inventory Searches
Generally speaking, a routine inventory search of a lawfully impounded car is reasonable under the Fourth Amendment even though it is conducted without a warrant and in the absence of probable cause to believe that evidence of a crime will be discovered. Consequently, if police discover criminal evidence during an inventory, they may seize it pursuant to the plain view doctrine, and introduce it in a criminal prosecution.
[A] “Routine” Nature of the Inventory
A warrantless, suspicionless search of a car lawfully in police custody is not justifiable merely because it was conducted for administrative purposes. The inventory must be a “routine” or “standard” procedure of the department conducting it.
Ideally, the regulations authorizing an inventory should give no significant discretion to the individual officer. Nevertheless, the Supreme Court has upheld inventories that permit some police discretion if “exercised according to standard criteria” and grounded on reasons other than suspicion of evidence of a crime.
[B] Scope of Inventory Search
[1] Containers
As part of a valid automobile inventory, the police may open containers found in the car, without a warrant or probable cause. Whether an officer police may do so in his discretion, see
[2] Locked Portions of the Automobile
An inventory search of an unlocked glove compartment is permissible under the Fourth Amendment.
[3] Inspection of Papers
The Supreme Court has not determined whether or to what extent the police may examine papers and documents found during an otherwise valid inventory, but lower courts have frequently barred the introduction of evidence secured as the result of the inspection of private papers found during an inventory search.
The police may search an arrestee, as well as his personal effects – including containers, as part of a routine inventory at a police station, incident to his booking and incarceration. Neither a search warrant nor probable cause is required for an arrest inventory.
[A] Validly Obtained Consent
A validly obtained consent justifies an officer in conducting a warrantless search, with or without probable cause. If the officer discovers evidence during a valid consent search, he may seize it without a warrant pursuant to the plain view doctrine. Consent is valid if it is:
(1) given voluntarily – The “voluntariness” of consent is determined from the totality of the circumstances. Consent that is the result of express or implied duress or coercion is involuntary. The prosecutor bears the burden of demonstrating by a preponderance of the evidence that consent was freely given.
(2) not based on an officer's assertion of authority to conduct a search on the basis of a warrant, whether or not the warrant is valid. Bumper v.
[B] Scope of Search
A warrantless consent search is invalid if the officer exceeds the scope of the consent granted.
[C] Third-Party Consent
Consent to a search by one who possesses common authority over property is valid against another with whom the authority is shared. “Common authority” exists when there is “mutual use of the property by persons generally having joint access or control for most purposes.”
[D] Apparent Authority
A warrantless search of a residence is also constitutional when it is based on the consent of a person whom the police, at the time of entry, reasonably believe has common authority over the premises, whether or not that authority is valid.
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