1. 1 Book Cover Here Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 6 Exceptions to the Warrant Requirement: Plain View, Open Fields, Abandoned Property and Consent Searches Criminal Justice Procedure 8 th Edition

2. 2 Introduction The Fourth Amendment’s protection against unreasonable searches and seizures only extends to items in which a person has a reasonable expectation of privacy. – various situations give rise to circumstances where that expectation of privacy has been eliminated either by the actions of the citizen, or by the circumstances surrounding the location of the item. Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 6, Exceptions to the Warrant Requirement

3. 3 Plain View An item which is exposed to others cannot support a legitimate expectation of privacy. The plain view doctrine allows officers to make a warrantless seizure of items exposed to their view. The plain view doctrine states that items within the sight of an officer who is legally in a place may be seized without a warrant as long as such items are readily identifiable as contraband. – Officers must be lawfully on the premises where the view is made – Officers must be able to see the item in question – Items must be readily identifiable as contraband without being moved or manipulated Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 6, Exceptions to the Warrant Requirement

4. 4 California v. Ciraolo In this case, the Court stated that there was no need for a warrant because the naked-eye aerial observation of a suspect’s backyard is not a “search” within the meaning of the Fourth Amendment. – Officers flew a helicopter over the property, but used their own sense of sight to discern the marijuana growing in the back yard. The Court held that even an area within the curtilage does not in itself prohibit all police observation. – The term “curtilage” refers to the grounds and buildings immediately surrounding a dwelling. – Ordinarily, the curtilage is not considered an open field and hence is protected against unreasonable searches and seizures. – This means that searching a curtilage requires a warrant. This case expands police power to observe the curtilage without a warrant through aerial observation. Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 6, Exceptions to the Warrant Requirement

5. 5 Arizona v. Hicks This case holds that, even after the officer has seen an object in plain view, any movement or manipulation of the item constitutes an independent search of the item that is outside of plain view and requires either probable cause, or a warrant. Therefore, if, at the moment the object is picked up, the officer did not have probable cause to believe it was contraband, but only “reasonable suspicion” (as was the case here), the seizure is illegal. Copyright © 2013, Elsevier Inc. All Rights Reserved

6. 6 Open Fields An open field is any privately owned property that is located too far from the home to be considered within the curtilage. Furthermore, posting signs and putting fences around an open field cannot necessarily change it to property that has a protected privacy interest. The police may enter and investigate unoccupied or undeveloped areas outside the curtilage without either a warrant or probable cause. Copyright © 2013, Elsevier Inc. All Rights Reserved

7. 7 Oliver v. United States Because open fields are accessible to the public and the police in ways that a home, office, or commercial structure would not be, and because fences or “No Trespassing” signs do not effectively bar the public from viewing open fields, the expectation of privacy by an owner of an open field does not exist. This case allows law enforcement officers to make warrantless entries and observations without probable cause in open fields, thus affording them greater access to remote places where prohibited plants or drugs might be concealed. Copyright © 2013, Elsevier Inc. All Rights Reserved

8. 8 Abandoned Property Abandoned property has no reasonable expectation of privacy. The Supreme Court has adopted a totality of the circumstances test to determine whether or not property has been abandoned. – The Court looks at all of the facts in each case to determine the intent to abandon, the actions indicating abandonment, and the termination of a reasonable expectation of privacy. Copyright © 2013, Elsevier Inc. All Rights Reserved

9. 9 California v. Greenwood In this case, respondents exposed their garbage to the public, sufficiently defeating their claim to Fourth Amendment protection. – plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. Copyright © 2013, Elsevier Inc. All Rights Reserved

10. 10 Consent Searches Consent searches are another area where officers do not need probable cause or a warrant to conduct a valid search. Two basic requirements must be met for consent to be valid. – consent must be voluntarily and intelligently given. consent must be given without force, duress, or anything that would make the person feel obligated to give it, and the person giving it must know what he or she is doing. – consent must be given by someone who has authority to give it. The general rule is that one who has common authority over an area may consent to the search of that area. Copyright © 2013, Elsevier Inc. All Rights Reserved

11. 11 Illinois v. Rodriguez This case reiterates the “apparent authority” rule in searches with consent. – The rule says that consent given by a third party whom the police reasonably believe to possess common authority over the premises is valid even if it is later established that the person did not in fact have that authority. In this case, the girlfriend, who gave consent and provided the key, had moved out of the apartment. She led the police to the house and allowed them entry by using her key. She did not tell them that she no longer lived there. The officers reasonably believed that she had authority to give consent; hence, the entry was valid, and the evidence subsequently obtained was admissible. It is important to note that for the “apparent authority” rule to apply, the belief by the police must be reasonable, considering the circumstances. Copyright © 2013, Elsevier Inc. All Rights Reserved

12. 12 Georgia v. Randolph This case resolves an issue that was not previously addressed by the Court: whether consent by an occupant of a dwelling over the expressed objection of another occupant authorizes the police to conduct a warrantless search. Based on this case, two people who have equal authority over a place must both give consent or the police must obtain a warrant before they can conduct a valid search. – Consent may be limited by the person who gives it. – The limits to what is searchable based on consent comes from the wording of the consent. – Any individual who gives consent to an officer may also take it away at any time during the search. Copyright © 2013, Elsevier Inc. All Rights Reserved

13. 13 Conclusion This chapter examined four circumstances in which police officers can search without a warrant and without violating the 4 th Amendment. – Plain View For plain view to be valid, the officers must be lawfully on the premises, they must be able to see the items with their own sense of sight, and the items must be readily identifiable as contraband without any movement or manipulation. – Open Fields Items in open fields are not protected by the Fourth Amendment and may be properly seized by an officer without a warrant or probable cause. – Abandoned Property If property has been left outside the curtilage of the home for a period of time, the property is considered abandoned. – Consent For consent to be valid, it must be voluntarily and intelligently given by someone who has authority to give it. Copyright © 2013, Elsevier Inc. All Rights Reserved