1. Copyright © Allyn & Bacon 2007 Chapter 5 Arrests and Searches Without Warrants

2. Copyright © Allyn & Bacon 2007 Introduction: Moving beyond the Warrant Requirement The Fourth Amendment would be easy to understand without exceptions to the warrant requirement This chapter focuses on exceptions to the warrant requirement based on probable cause

3. Copyright © Allyn & Bacon 2007 I. EXCEPTIONS TO THE WARRANT REQUIREMENT There are five types of warrantless searches and seizures that require probable cause: Searches incident to arrest Searches and seizures in the presence of exigent circumstances Searches involving automobiles Arrests in public places Searches based on the plain view doctrine

4. Copyright © Allyn & Bacon 2007 A. Searches Incident to Arrest Chimel v. California (1969) created the search incident to arrest exception Chimel permitted a search contemporaneous to arrest

5. Copyright © Allyn & Bacon 2007 1. On the Importance of a Lawful Arrest, the Offense, and Custody The arrest must be lawful The arrest must result in a person being taken into custody (Knowles v. Iowa, 1998)

6. Copyright © Allyn & Bacon 2007 2. Timing of the Search Probable cause to arrest must precede the warrantless search The search incident to arrest should take place soon after the arrest A delayed search is permissible when: An immediate search is impossible Exigency exists at the time of the delayed search

7. Copyright © Allyn & Bacon 2007 3. Scope of the Search Chimel v. California (1969) created the “grabbing area,” “armspan rule” Maryland v. Buie (1990) permits protective sweep attendant to search incident to arrest Protective sweep authorized PRIOR to arrest and search incident to arrest, but reasonable suspicion is required Can secure premises pending warrant Can search passenger compartment of car and containers therein incident to lawful arrest, without a warrant (New York v. Belton, 1981)

8. Copyright © Allyn & Bacon 2007 B. Searches Based on Exigent Circumstances Exigent circumstances are emergencies Certain emergencies permit dispensing with the warrant requirement Three types of exigencies can be identified: Hot pursuit Possibility of danger to others and/or escape “Evanescent” evidence

9. Copyright © Allyn & Bacon 2007 1. Hot pursuit Warden v. Hayden (1967) was the first to recognize hot pursuit Requirements: Probable cause that suspect is on premises Probable cause that suspect will escape and/or cause harm to others or evidence Must originate in lawful vantage point Only applies to serious offenses Search must be contemporaneous with attempted apprehension of suspect

10. Copyright © Allyn & Bacon 2007 2. Escape and Endangerment to Others Absent Hot Pursuit Suspect could potentially escape and/or cause harm to others or evidence absent hot pursuit Not terribly common

11. Copyright © Allyn & Bacon 2007 3. Evanescent Evidence Evanescent evidence is that which is likely to “disappear” if police are forced to wait for a warrant Breithaupt v. Abram (1957) upheld warrantless needle injection for the purpose of obtaining a blood sample A key to this decision was that medical personnel conducted the “search” Also, there was no time to obtain a warrant, there was a clear indication the evidence would be found, and the search was conducted in a reasonable manner

12. Copyright © Allyn & Bacon 2007 4. Offense Seriousness and Exigent Circumstances The Supreme Court has been hesitant to find exigent circumstances with minor offenses Unfortunately, it is not clear what constitutes a minor offense

13. Copyright © Allyn & Bacon 2007 5. The Role of Police-Created Exigencies Some lower courts have held that the government cannot claim exigent circumstances when it is responsible for the emergency

14. Copyright © Allyn & Bacon 2007 C. Automobile Searches Carroll v. United States (1925) created the automobile exception to the warrant requirement In Carroll, the Court declared that the warrantless search of an automobile is permissible when (1) there is probable cause to believe the vehicle contains evidence of a crime and (2) securing a warrant is impractical

15. Copyright © Allyn & Bacon 2007 1. Rationale Three arguments can be offered in support of the automobile exception Impractical to obtain warrants Diminished expectation of privacy Vehicles subject to government regulations

16. Copyright © Allyn & Bacon 2007 2. Requirements There are three general requirements for a valid warrantless vehicle search: Must be limited to automobiles Must be premised on probable cause, unless the search is for inventory purposes Must be impractical to obtain a warrant Term “automobile” includes cars, boats, planes, trucks, etc. In general, if the setting “objectively indicates that the vehicle is being used for transportation,” then the automobile exception applies.

17. Copyright © Allyn & Bacon 2007 (continued) Factors used in determining whether a vehicle serves a transportation function are: (1) whether it is mobile or stationary; (2) whether it is licensed; (3) whether it is connected to utilities; and (4) whether it has convenient access to the road

18. Copyright © Allyn & Bacon 2007 3. Scope of the Search As extensive as that authorized by a warrant USSC recently authorized drug dog sniff of vehicle during routine traffic stop

19. Copyright © Allyn & Bacon 2007 4. When Other Doctrines Govern Searches of Automobiles Warrantless searches of automobiles can be based on the following additional exceptions to the warrant requirement: Search incident to arrest Stop and frisk Plain view Inventory Consent

20. Copyright © Allyn & Bacon 2007 D. Racial Profiling Whren v. United States (1996) permits pretextual stops Remedies for profiling include: Fourteenth Amendment equal protection claims Title VI of the Civil Rights Act of 1964 The New Jersey Supreme Court imposed strict limits on consensual auto searches, interpreting the state’s constitution to mean that before asking for a driver’s permission to search, a police officer must have “reasonable and articulable suspicion” of criminal activity.

21. Copyright © Allyn & Bacon 2007 E. Arrests Based on Exigent Circumstances Exigent circumstances justify warrantless entry into private homes for the purpose of making an arrest One of the following must be present: Hot pursuit Danger to officers Danger to third parties Potential for escape Potential for destruction of evidence

22. Copyright © Allyn & Bacon 2007 F. Arrests in Public Places So long as probable cause is in place, the police can make warrantless arrests in public places Also, warrantless arrests in the curtilage of people’s home are sometimes authorized

23. Copyright © Allyn & Bacon 2007 G. The Doctrine of Plain View The plain view doctrine emerged in Coolidge v. New Hampshire (1971) A plain view seizure is authorized when: The police are lawfully in the area Items are “immediately apparent” as subject to seizure

24. Copyright © Allyn & Bacon 2007 1. The Lawful Access Requirement For the plain view doctrine to apply, the police must have lawful access to the object to be seized There are four specific situations where police officers can have lawful access During a warranted search When the officers are in a lawful vantage point during a valid arrest When a warrantless search is conducted When “nonsearches” are conducted.

25. Copyright © Allyn & Bacon 2007 2. The “Immediately Apparent” Requirement In addition to the requirement that the police have lawful access to an object for the plain view doctrine to apply, it must also be “immediately apparent” that the object is subject to seizure “Immediately apparent” means that the officer has probable cause to seize the object (Arizona v. Hicks, 1987)

26. Copyright © Allyn & Bacon 2007 3. The Role of Inadvertency In Horton v. California (1990), the Court declared that inadvertency, although a “characteristic of most legitimate ‘plain view’ seizures,...is not a necessary condition” of the doctrine.

27. Copyright © Allyn & Bacon 2007 4. Plain Touch, Feel, and Smell In recent years the Court has extended the plain view doctrine to incorporate additional senses, especially smell (United States v. Place, 1983) and feel (Cf. Minnesota v. Dickerson, 1993)

28. Copyright © Allyn & Bacon 2007 5. Plain View as a Fallback Measure There are countless situations where the plain view doctrine would seem to apply, but when the courts base their decisions on other doctrines