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The Fourth Amendment of the Constitution
The right of the people to be secure in their persons, houses, papers, and effects, against Unreasonable Searches and Seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
COURTS PREFER A WARRANT BUT CONSTITUTION ONLY MANDATES THAT SEARCHES BE ACCOMPLISHED "REASONABLY"
SOMETIMES GETTING A WARRANT IS NOT REASONABLE OR NECESSARY
EXCEPTIONS HAVE DEVELOPED IN AREAS WHERE THE PUBLIC INTEREST TO BE SAFE AND LAW ENFORCEMENT'S DUTY TO INSURE SAFETY OUTWEIGH AN INDIVIDUAL'S RIGHTS
SEARCH INCIDENT TO LAWFUL ARREST
Once an officer has place an individual under full custodial arrest, the officer may search
"Arrest" means full custody, not just detention or citation for a traffic offense.
Justified by courts
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?
Can they search the rest of the house for more drugs or evidence of drug dealing?
Vehicle Exception - Also known as the "Carrol Doctrine."
Back to traffic stop, officer smells marijuana. Can they search the trunk, under the hood, wherever they want?
What if an officer knew that a package contained drugs and they watch the suspect place the package in the front seat of his car, could they Stop the car and seize the package without a warrant?
Could they search the rest of the car based on the vehicle exception?
Could still do an inventory search of the vehicle incident to arresting suspect and impound the vehicle.
Exigent Circumstances and 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."
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?
Officer responds to a hit and run intoxication wreck. Nobody is hurt. The intoxicated suspectstumbles home and goes to bed. Can the officer enter the house and arrest the suspect without a warrant?
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:
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).
Buy-bust with an undercover on the front porch of the women suspect's home. Officers yelled, "Police!" and she retreated in the door. The undercover ran in after her and took her down just inside the door. The Supreme Court said ok because the legal arrest started outside in a public place and the suspect chose to retreat.
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 thesuspect 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?
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.
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?
Can he stay after the fire is out and search the rest of the house?
Community Caretaking Function
New and Undeveloped area.
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?
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 okay?
Factors to consider when considering whether community caretaking can be a reason for contact:
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 is an exception to the constitutional requirement of a warrant and probable cause.
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.
What about a motel manager?
The person giving consent must have joint access or control of the property. They must have a right to use the property. A landlord or motel manager cannot just come into an apartment and look around, or come in and sit down.
Voluntary, Informed Waiver
Must occur voluntarily, without coercion
Voluntariness will be measured by the individual's understanding of whether he had an option to refuse the search The government has the burden to prove by clear and convincing evidence that the consent to search was freely given Factors that show a lack of voluntariness:
Failure to properly document the consent like reports with exact wording, audio-video recording, or in writing if possible
Scope Limited by Consenting Individual
If no limitation put on search by the consenting individual - what would a reasonable citizen understand under the circumstances?