The Fourth Amendment
The Fourth Amendment requires the government to obtain a search warrant based on probable cause prior to conducting a search of people or their things. There are numerous exceptions to the warrant requirement, however, and criminal jurisprudence continues to evolve in this area. (Previous blog posts discussing changes in Fourth Amendment law can be found here and here.) Each exception has its own complicated history and usually a long line of federal and state cases interpreting the scope of the exception—the finer points of these exceptions are not covered here.
Instead, this post briefly introduces some of the basic exceptions to the Fourth Amendment’s warrant requirement. Generally, the warrant requirement and these exceptions will apply to both individuals and businesses, but there are numerous caveats and each circumstance is unique—immediately consult with your legal counsel if law enforcement approaches you or your business to conduct a search, regardless of whether it is based on a warrant or one of the exceptions that follows.
1. Search Incident to Lawful Arrest
When a law enforcement officer makes a lawful arrest, the officer may search both the person arrested and the area within the person’s immediate control. The two rationales underlying this exception are officer safety and the preservation of evidence. The scope of the area “within the person’s immediate control” that an officer may search is a constant source of litigation.
2. Items in Plain View
An officer may seize items that are in plain view as long as the officer has a right to be there. For example, if an officer stops a person for speeding and when issuing a ticket to the driver the officer sees, in plain view, what appear to be drugs in the backseat of the car the officer can seize the suspected drugs without a warrant. Officers may even enhance their vision with the use of flashlights or binoculars. An officer may not, however, illegally enter premises and then claim the plain view exception or items viewed inside the premises.
If a person consents to a search and the officer reasonably believes that person has the authority to consent to the search, no warrant is needed. The person consenting must have or reasonably appear to have authority to consent. For example, a parent can consent to a search of her minor child’s room. However, a minor child cannot validly consent to the search of her parent’s house. In addition, the consent must be voluntary and not the product of threats or undue promises. Consent searches can apply to both individuals and property.
If police have reasonable suspicion of a crime, they may both stop a person to ask questions and conduct a brief pat-down search of the person to ensure officer safety. These Terry stops (named after the seminal Supreme Court case) are sometimes a source of friction between the police and communities where stop-and-frisk is employed more aggressively.
5. Automobile Exception
In establishing the vehicle warrant exception the Supreme Court reasoned that the inherent mobility of automobiles would make it impractical for officers to always obtain a warrant prior to a search. In addition, the Court explained that people have a lesser expectation of privacy in their vehicles. Based on this reasoning, a warrantless search of a vehicle may be justified if an officer has probable cause to believe the vehicle contains contraband, controlled substances, or criminal evidence.
6. Hot Pursuit and Exigent Circumstances
If the police are pursuing a suspect and the suspect enters private property, then the police can continue the pursuit and enter the private property without stopping to obtain a warrant. Exigent circumstances are circumstances that require immediate action. For example, the police can forgo obtaining a warrant in an emergency in order to render aid to a person who needs it, to ensure public safety, or to preserve evidence that is in immediate danger of being removed or destroyed.
7. Other Exceptions
There are a number of other exceptions that are less often discussed but equally important. The exceptions below are largely based on a lesser expectation of privacy and administrative ease.
- Caretaker Function: It is common practice for people to turn over to police property they find and for police to come across abandoned property. In either case, such property can be searched without a warrant.
- Impounded Vehicles: Impounded vehicles can be searched as part of standard police procedures to inventory and secure the vehicles and their contents.
- Probation and Parole Searches: People who are probation, parole, or other form of supervised release can be subjected to warrantless administrative searches because they do not have the “absolute liberty” that other citizens enjoy.
- School Searches: Students who are on school grounds or within school district care also have lower expectation of privacy permitting school officials to conduct warrantless searches. The idea behind the looser standard in schools is that the students are younger and more vulnerable than the general population, they are already subject to numerous regulations on their behavior when they are in school and school officials have to maintain order in school.
- Open Fields: There is a lesser expectation of privacy in premises that constitute open fields. Whether an area or structure constitutes an “open field” depends upon its proximity to the related home, the presence of an enclosure also surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to shield the area from view of passersby.
- Border Searches: Border searches do not require a warrant, probable cause or suspicion of any kind.
The Exclusionary Rule
When the government violates the Fourth Amendment by conducting a warrantless search without a valid exception the exclusionary rule may apply. Under the exclusionary rule any evidence obtained as a result of an unlawful search will not be permitted to be used at trial. As with all general rules, however, there are exceptions to the exclusionary rule.
Consult with your legal counsel immediately if law enforcement approaches you or your business to conduct a search or if you are asked for consent. Do no provide consent prior to speaking with counsel. Contact the office today to set up a consultation.