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Warrantless Searches

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

Requirements:

  1. Warrant for arrest of suspect or circumstances that establish statutory authority for on view arrest without a warrant; and
  2. Full custodial arrest of individual to be searched.

Once an officer has place an individual under full custodial arrest, the officer may search

  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?

    NO - A search incident to arrest only all a search of the passenger compartment if it is reasonable to assume that the vehicle contains evidence of the offense of arrest.

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?

    Yes. They are in plain view.

Can they search the rest of the house for more drugs or evidence of drug dealing?

    No. Not without a search warrant.

Vehicle Exception - Also known as the "Carrol 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 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?

    YES

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

    NO - PC was only for the package

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

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 suspectstumbles 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 [1st 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).

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?

    NO - There is no crime scene exception to the 4th 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

Can he stay after the fire is out and search the rest of the house?

    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 okay?

    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

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.

    NO

What about a motel manager?

    NO

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:

  • a show of force by the officer (a drawn weapon);
  • police threats to obtain a search warrant if the suspect does not give consent;
  • making or threatening an arrest in order to obtain consent;
  • whether police first gave the accused Miranda warnings;
  • whether the accused knew that he could refuse to allow a search.

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?

By Brian Corrigan
Board Certified Dallas Criminal Defense Attorney
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