Warrantless Searches

(1)   The suspect

(2)   The area with the suspect’s immediate control or reach,

(3)   Containers within the control or reach of the suspect,

(4)   The passenger compartment of a vehicle when an occupant has been lawfully arrested, and

(5)   When an individual is arrested in a residence, a protective sweep of the residence is allowed to determine the presence of other individuals who may be a threat to the officers.

“Arrest” means full custody, not just detention or citation for a traffic offense.

Justified by courts (1) to protect the arresting officer to allow discovery of weapons and (2) to preserve evidence by allowing its seizure before it is destroyed or concealed.

During a traffic stop, the driver has a warrant and the passenger is a licensed driver who can take control of the vehicle, can the officer search the trunk?

An officer is executing an arrest warrant on a suspect at his residence. They stumble onto drugs during a protective sweep. Can they seize the drugs?

è Yes. They are in plain view.

è No. Not without a search warrant.

VEHICLE EXCEPTION – ALSO KNOW AS THE “CARROLL DOCTRINE”

1.      Probable cause that contraband or evidence of a crime is somewhere in the vehicle.

2.      Readily mobile vehicle.

Back to traffic stop, officer smells marijuana. Can they search the trunk, under the hood, wherever they want?

YES - anywhere that marijuana could be concealed

What if an officer knew that a package contained drugs and they watched a suspect place the package in the front seat of his car, could they

è Stop the car and seize the package without a warrant?

è YES

è Could they search the rest of the car based on the vehicle exception?

è NO – PC was only for the package

ð  Could still do an inventory search of the vehicle incident to arresting suspect and impound the vehicle.

ð  Could not search trunk without further PC that there were drugs in the car besides those in the package – California v. Acevedo, 500 U.S. 656 (1991).

EXIGENT CIRCUMSTANCES/HOT PURSUIT

Police Officers do not have to delay in the course of an investigation, to get an arrest warrant or search warrant, if to do so would gravely endanger their lives or the lives of others.

They do not have to get a warrant if they are in immediate or continuous pursuit after a “serious offense.”

Examples:

Officer responds to an armed robbery and shooting at  Quickie Mart. Officers arrive quickly. Witnesses at the scene tell them that only moments before, the suspect just ran into a nearby house. Can they enter the house to get the suspect?

YES – This was immediate or continuous pursuit from a serious offense. Warden v. Hayden. 387 U.S. 294 (1967).

Officer responds to a hit and run intoxication wreck. Nobody is hurt. The intoxicated suspect stumbles home and goes to bed. Can the officer enter the house and arrest the suspect without a warrant?

NO – Not sufficiently serious.  Welsh v. Wisconsin, 902 S.W.2d 571 (Tex. App.-Houston [1^st Dist.] 1995, no pet.).

Extra protection if the place to be entered is the suspects home

4 criteria to enter a home to search for an individual or weapons:

1.      The offender might escape if police do not make immediate entry;

2.      The offender has demonstrated that he poses a danger to the community;

3.      The offender has been pursued into the home continuously from the crime scene; and

4.      The warrantless arrest would be lawful if accomplished in a public place but cannot because of the suspect’s election to retreat into a private place.

Only one case has upheld a warrantless entry into a home to make an arrest for a non-violent offense.

United States v. Santana, 427 U.S. 38 (1976).

It may be tough to get other situations to fit with this rule.

Bottom line:  It needs to be a violent offense + hot pursuit for the police to get into a home without a warrant.

How long can a warrantless entry continue?

Back to the Quickie Mart case…

After the robbery/shooting, the first officer follows the suspect to the house that the witnesses say he entered (which turns out to be the suspect’s house). The officer shouts, “Police!” He then enters the home and is shot and killed by the suspect.  Backup officers enter the house and the suspect surrenders. This is now the crime scene of a murder.

Once the killed officer is taken out by the paramedics, can the police stay inside, process the crime scene, and search the house without a warrant?

NO – There is no crime scene exception to the 4^th amendment requirement for a warrant and the “hot pursuit” is over. The officers and emergency personnel may remain for a “reasonable” time to attempt live saving measures and secure the premises, but the officers should then back out, preserve the scene, and get a warrant before a more extensive search begins.

NON-CRIMINAL EMERGENCIES

More often, entries are made to address non-criminal emergencies like a fire, a cry for help, a security alarm, etc.

Evidence of criminal activity that is in plain view may be lawfully seized. However, remaining in a protected premises like a home after the emergency situation has passed is not lawful.

Example:

Fire at a house. Fire fighters and police respond. Children inside. When rescuing kids, officer sees a large amount of narcotics on the bed in the master bedroom. Can he seize it?

 YES

NO – they must get a warrant.

COMMUNITY CARETAKING FUNCTION

NEW AND UNDEVELOPED AREA.

EXAMPLE –

SUSPECT PASSED OUT BEHIND THE WHEEL. CAR IN DRIVE.      

CAN AN OFFICER SEE IF THE SUSPECT IS OK AND ARREST HIM WHEN DRUGS ARE SEEN IN PLAIN VIEW?

YES.

WHAT IF AN OFFICER SEES SOMEONE PUKING OUT THE REAR PASSENGER WINDOW OF A MOVING CAR WITH ADDITIONAL PASSENGERS TO AID THE PUKING PASSENGER. OFFICER SEES NO TRAFFIC VIOLATION. TAGS ARE ALL CURRENT. CAN THE OFFICER  STOP THE CAR TO SEE IF THE PASSENGER IS OK?

NO – State v. Wright. 18 S.W.3d 245

FACTORS TO CONSIDER WHEN CONSIDERING WHETHER COMMUNITY  CARETAKING CAN BE A REASON FOR CONTACT:

1.      The nature and level of distress exhibited by the individual,

2.      The location of the individual,

3.      Whether the individual is alone and/or has access to assistance independent of the the officer, and

4.      What extent the individual, if not assisted, presents a danger to himself or others.

Basically, officers must be confronted with a situation where they feel a duty to act immediately to address what they perceive to be a potential harm for an individual or the community. It is not a free license to arrest people.

This is still a developing area. An officer's success or failure in using this concept will depend on their ability to articulate why they felt they had to act. The Court of Criminal Appeals has said that the applicability of this exception is “narrow” and will only apply in “unusual circumstances.”

CONSENT

AUTHORITY OF CONSENTING INDIVIDUAL

Anyone of sufficient mental maturity who enjoys a reasonable expectation of privacy in the place to be searched may waive his right and permit a search.

è Can a landlord give consent to allow the search of one of his tenant’s apartments?         

NO

è  What about a motel manager?

NO

Failure to properly document the consent like reports with exact wording, audio-video recording, or in writing if possible