The Fourth Amendment of the United States Constitution requires that no search or seizure shall be carried out unless a warrant has been issued. While that is a wonderful right to give to citizens, in reality, it is not always possible. Over the years the Supreme Court of the United States has come to that same realization and has provided several exceptions to the warrant requirement.
Those exceptions are: searches with consent, frisks, plain feel/plain view, incident to arrest, automobile exceptions, exigent circumstances and open fields, abandoned property and public place exceptions (Harr, Hess, 2006, p. 219). For the purpose of this paper, we will focus on searches with consent, searches incident to arrest, the automobile exception and the exigent circumstance exception.
Under the searches with consent exception, individuals, “with the authority to do so,” can consent to be searched without a warrant and, likewise, can revoke that right at any time (Harr, Hess, 2006. p. 219). In order for an individual to be searched, he or she must give consent (Harr, Hess, 2006). Consent to search any property must be given by the actual owner or, as set forth in United States v. Matlock (1974), by a person in charge of that property” (Harr, Hess, 2006. p. 219). If, for instance, more than one person owns a property, only one of those individuals must give consent.
Of course, there are exceptions to that rule as well. Only commonly shared areas of that property may be searched (Harr, Hess, 2006). Take for instance my apartment. My husband, my sister and I all reside in the same apartment. While my sister could give consent for common areas, such as the living room, den, kitchen, and bathroom, to be searched, she could not consent to allowing my bedroom to be searched. My husband, on the other hand, could consent to having the bedroom searched because it is our joint bedroom and is not off-limits to him.
Some instances in which a third party can give “valid consent” include spouses that occupy and have equal rights to the premises, and parents in whose home children are living and do not pay rent or live separately (Harr, Hess, 2006). Instances in which consent of a third party is considered invalid include landlords giving permission to search the property of tenants, parents giving permission to search the property of children who pay rent and have exclusive rights to any given area of the property (Harr, Hess, 2006. pp. 220-221).
After a person has been placed under arrest, he or she is subject to a full search (Harr, Hess, 2006). In Chimel v. California the Court held that “it is reasonable for the arresting officer to search the person to remove any weapons that” might be used to “resist an arrest or affect an escape” (Chimel as cited by Harr, Hess, 2006, p. 226). The Court also held in Chimel v. California that “it is entirely reasonable for the arresting officer to search for and seize any evidence” on a person “to prevent its concealment or destruction and the area from within which the arrestee might gain possession of a weapon or destructible evidence” (Chimel as cited by Harr, Hess, 2006. p. 226). At the same time, however, the Chimel ruling stated that the search must be immediate and is limited to the area in reach of the individual, generally known as the wingspan of said individual (Harr, Hess, 2006).
If a search is extreme or intrusive, the search will generally only be upheld if “the process was a reasonable one performed in a reasonable manner; there was a clear indication in advance the evidence sought would be found and there were exigent circumstances” (Harr, Hess, 2006. p. 227). Seizing items taken from the body, such as DNA, is generally permissible “without a warrant incident to arrest if reasonable and painless procedures are used” (Harr, Hess, 2006. p. 227). Likewise, anything that the arrestee has under his or her immediate control, such as a purse, is fair game for search and seizure without a warrant incident to arrest (Harr, Hess, 2006).
The Courts also generally allow a protective sweep in conjunction with an arrest in order to ensure their safety. A protective sweep is “a limited search made in conjunction with an in-home arrest” (Harr, Hess, 2006. p. 228). Other conditions on the searches incident to arrest exception include the use of force, the search of other individuals with the arrested individual, searching the vehicle of an arrest person, contemporaneousness and inventory searches (Harr, Hess, 2006). Under the contemporaneousness condition a search “can be incident to arrest only if it occurs at the same time as the arrest” (Harr, Hess, 2006, p. 230). One could not arrest a subject, transport him several miles from home and then search him, as was seen in the 1965 case of James v. Louisiana (Harr, Hess, 2006). The use of force is allowed so long as the force is within reasonable limits. Likewise, an officer may frisk individuals who are with the arrested individual at the time of arrest, an officer may search any areas of an automobile within reach of an individual and an officer may inventory the effects in the possession of an arrested individual, including his or her automobile (Harr, Hess, 2006).
Because automobiles are mobile, it is reasonable to assume that they would qualify as an exception to the warrant clause of the Fourth Amendment. Under this particular exception, an automobile may be search “if a government agent has probable cause to believe the vehicle contains contraband or evidence of a crime without a warrant” because “in the time it would take to get a warrant, the car, driver and contraband or evidence could be long gone” (Harr, Hess, 2006. p. 231). The 1981 case of Robbins v. California saw the justifications for searching without a warrant “further specified” (Harr, Hess, 2006. p. 232. Those specifications include that the mobility of vehicles produce exigent circumstances, “a diminished expectation of privacy surrounds” an automobile, “a vehicle is used for transportation” and not as a residence, occupants and contents are “in plain view”, and vehicles are “necessarily highly regulated by the government” (Harr, Hess, 2006. p.232). In addition to this, and as mentioned previously, the impounded automobiles of persons under arrest may be searched for inventory purposes.
Under the exigent circumstances exception, officers “who have established probable cause that evidence is likely to be at a certain place an who do not have time to get a search warrant” may conduct a search without having previously obtained a warrant (Harr, Hess, 2006. p. 234). Because nearly every situation could be considered an “exigent circumstance” the Supreme Courts have placed limitations on this exception. In order for a situation to qualify as an exigent circumstance the situation or circumstance must “include danger of physical harm to an officer or others, danger of destruction of evidence, driving while intoxicated, hot-pursuit situations and individuals requiring rescuing” (Harr, Hess, 2006, p. 234).
In addition to the exceptions present are the frisk exception, the plain feel/plain touch exception, the plain view exception, and the open field, abandoned property and public place exception. If none of these already established exceptions apply to a search or seizure, it is more than likely that a warrant will be required or the evidence found and seized will be inadmissible in a court of law.
Reference:
Harr, J. S., & Hess, K. M. (2005). Constitutional law and the criminal justice system (Third ed., pp. 219-221, 226-228, 230-232, 234). United States: Thomson Wadsworth.
