Chapter overview

Supreme Court has carved out several exceptions to the Fourth Amendment’s warrant requirement.

A search incident to arrest is limited to (1) the person arrested and any containers discovered from that search and (2) the arrestee’s immediate grabbing area. Prior to an arrest, the police may engage in a protective sweep of the premises, if they have a reasonable belief that evidence may be destroyed by someone sympathetic to the arrestee.

The chapter also discusses the aspect of a hot pursuit. Warrantless searches and arrests based on hot pursuit are constitutional only if the police have probable cause to believe (1) that the person they are pursuing has committed a serious offense; (2) that the person will be found on the premises the police seek to enter; and (3) that the suspect will escape or harm someone, or that evidence will be lost or destroyed.

Additional numerous special issues involved automobile stops are discussed. Warrantless automobile searches are constitutionally permissible because (1) automobiles are mobile, making it difficult to obtain warrants; (2) people enjoy a lesser expectation of privacy when in their cars; and (3) automobiles are subject to a host of government regulations. Even so, for an automobile search to be constitutional, it must be (1) directed at a vehicle that serves a transportation function; (2) premised on probable cause to believe the vehicle contains evidence of a crime; and (3) completed without unnecessary delay. Racial profiling is of particular concern in the context of vehicle stops. It occurs when the police use race or ethnicity as a factor in determining whether they will stop someone.

The chapter ends with a discussion of the plain view doctrine and the situations in which a warrantless arrest can be made. Items in plain view can be seized if the police have lawful access to the items and if it is immediately apparent that the items are contraband. The discovery of such items does not have to be inadvertent. The “plain view” doctrine has been extended to include plain smell and plain feel. Two types of warrantless arrests have been authorized by the Supreme Court. First, if exigent circumstances are present, the police may make a warrantless arrest. Probable cause is required, however. Second, an arrest in public can be made without a warrant. Even certain minor offenses can support arrest in public places.

When arresting a suspect, police officers must be permitted to search the person and the immediate area in order to protect the officers from harm and to prevent the destruction of evidence. It would be dangerous to prohibit police from searching arrestees for weapons, and impractical to wait for a warrant before conducting such a search.

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  The arrest itself must be lawful
  
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  The nature or seriousness of the offense
  

In Knowles v. Iowa, 525 U.S. 113 (1998), a police officer stopped a person for speeding, and rather than arresting him (which the officer had justification to do), the officer issued him a citation. Then, the officer conducted a search of the car and found a marijuana pipe. The Court noted that traffic stops rarely pose the same threat to officer safety as arrests.

Probable cause to arrest must precede the warrantless search (Sibron v. New York, 392 U.S. 40 [1968]). The reason for this is to restrict officers from engaging in “fishing expeditions,” or searches based on less than probable cause that would presumably result in probable cause to make an arrest.

A search incident to arrest is also of limited scope, or the area that may be searched. A warrantless search ‘incident to a lawful arrest’ may generally extent to the area that is considered to be in the ‘possession’ or under the ‘control’ of the person arrested.”

A search incident to arrest may be conducted without a warrant, but it is subject to four restrictions. First, the arrest must be based on probable cause and result in custodial detention. Second, the search must be close in time to the arrest (it must be contemporaneous with the arrest). Third, the scope of the search must be limited. The police must limit their search to (1) the person arrested and any containers discovered from that search; (2) the arrestee’s immediate grabbing area; (3) a protective sweep of the premises without justification following an arrest but with reasonable suspicion leading up to the arrest; or (4) securing the premises, if they have a reasonable belief that evidence may be destroyed by someone sympathetic to the arrestee.

Police officers must often enter a home or building without a warrant while in “hot pursuit” of a suspect who the police believed had just committed a serious crime. Under some circumstances, they are permitted to arrest the suspect, and evidence they encounter within the building may be admissible, under the hot pursuit exception.

In some situations, warrantless searches may be permitted securing evanescent evidence, or evidence that may rapidly vanish or disappear. This may include certain types of evidence inside a person, as well as a house, a paper, or an effect.

• The suspect is believed to be armed.

• The police have a high degree of probable cause for arrest.

• There is an especially strong reason to believe the suspect is on the premises.

• Escape is likely.

• The entry can be made peaceably.

• The entry can be made during the day.
Summary: Searches Based on Exigent Circumstances

Warrantless action based on a hot pursuit exigency is constitutional only if the police have probable cause to believe any of the following:

• The person they are pursuing has committed a serious offense.

• The person will be found on the premises the police seek to enter.

• The suspect will escape or harm someone or evidence will be lost or destroyed.

• The pursuit originates from a lawful vantage point.

• The scope and timing of the search are reasonable.
In situations where the hot pursuit exception does not apply (and, presumably, the automobile and search incident to arrest exceptions do not apply), a warrantless search for evanescent evidence is permissible when (1) there is probable cause to believe that evidence will be destroyed, lost, or devalued; (2) the procedures employed are reasonable; and (3) the exigency was not police-created.
AUTOMOBILE SEARCHES
In the landmark case of Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court carved out an automobile exception to the Fourth Amendment’s warrant requirement. 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.
Rationale for the Automobile Exception
Three arguments can be offered in support of the automobile exception. First, because of the inherent mobility of vehicles, it is impractical to obtain warrants. Second, because vehicles are typically operated in public spaces, the Court has held that people have a lesser expectation of privacy. As the Court observed in Cardwell v. Lewis, 417 U.S. 583 (1974), an automobile serves a transportation function, not a privacy function—a car “seldom serves as one’s residence or the repository of personal effects.” Also, people have a lesser expectation of privacy in their automobiles because by their very nature, automobiles travel “public thoroughfares where [their] occupants and [their] contents are in plain view.” The third reason for the automobile exception hinges on the government regulations to which vehicles are subjected.
Requirements for Warrantless Vehicle Searches

Three general requirements must be met for a valid warrantless vehicle search: (1) the exception must only apply to automobiles; (2) with one exception, such a search must be premised on probable cause; and (3) it must be impractical to obtain a warrant (i.e., the vehicle stop must be such that it is impractical, burdensome, or risky to take time to obtain a warrant).

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  Teaching Note: Clarify to students that the term automobile has a very specific meaning in criminal procedure, which is very different from its meaning in everyday language.
  

In California v. Carney, 471 U.S. 386 (1985), the Court applied the standard of objective reasonableness and refused to define explicitly the types of automobiles covered by the automobile exception. Instead, the Court held that whether a vehicle serves as transportation or as a residence requires looking at the setting in which the vehicle is located. If the setting “objectively indicates that the vehicle is being used for transportation,” then the automobile exception applies. Four additional factors are used in determining whether a vehicle serves a transportation function: (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.

Although police may search a vehicle without a warrant, the search must still be based on probable cause.

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  Teaching Note: Emphasize that probable cause to search and probable cause to arrest are not one and the same. While probable cause to search may exist, it does not automatically give probable cause to arrest. Probable cause to arrest does not authorize a full search of a vehicle, including the trunk, but it does authorize a search of the passenger compartment (New York v. Belton, 453 U.S. 454 [1981]).
  

A warrant is required where it is reasonably practicable to obtain one. In most situations involving the stop of an automobile, securing a warrant is not reasonably practicable.

In United States v. Ross, 456 U.S. 798 (1982), the Supreme Court declared that as long as the police have justification to conduct a warrantless automobile search, it may be “as thorough as a magistrate could authorize in a warrant.”

Under current case law, the police are permitted wide latitude in conducting traffic stops. The police may stop a car based on the belief that a crime has been committed, which includes any traffic violation (Whren v. United States, 517 U.S. 806 [1996]). In addition, once a person has been stopped, the officer may order him or her to stand outside the vehicle without any justification (Maryland v. Wilson, 519 U.S. 408 [1997]). The police may also engage in searches with consent (Ohio v. Robinette, 519 U.S. 33 [1996]), seize items that are in plain view (Horton v. California, 496 U.S. 128 [1990]), frisk the driver and/or search the passenger compartment of the vehicle out of concerns for safety (Michigan v. Long, 463 U.S. 1032 [1983]), and search the entire car if probable cause to arrest and/or search is developed (Belton, 453 U.S. 454). Finally, police are not required to provide the Miranda warnings when asking questions pursuant to a routine vehicle stop (Miranda v. Arizona, 384 U.S. 436 [1966]).

Still other warrantless searches of automobiles are permissible based on other decisions unrelated to the automobile exception initially set forth in Carroll. These include searches (1) incident to arrest; (2) during the course of a stop and- frisk; (3) under the plain view doctrine (see later discussion); (4) based on the inventory search exception; and (5) with consent by the automobile’s occupant.

One option is that motorists can sue, based on 42 U.S.C. 1983, for racial discrimination under the equal protection clause of the Fourteenth Amendment. At least two types of Fourteenth Amendment claims can be identified. The first is a challenge to a law or policy that intentionally classifies people based on race or some other classification. Second, plaintiffs can argue that a racially neutral policy or statute is being enforced in a discriminatory fashion.

Title VII of the Civil Rights Act of 1964 requires a showing of disparate impact. A policy or action has a disparate impact if it treats one group in a markedly different fashion than another.

For the plain view doctrine to apply, the police must have lawful access to the object to be seized. As the Supreme Court stated in Coolidge:

In addition to the requirement that the police have lawful access to an object, it must also be immediately apparent that the object is subject to seizure. This was the decision reached in Arizona v. Hicks, 480 U.S. 321 (1987).

The role of inadvertency in the plain view determination has received considerable attention. The original position of the Supreme Court in Coolidge was that an object seized under the plain view doctrine must not have been anticipated by the police.

The term plain view seems to imply that the plain view doctrine is limited to items that the police can see with their eyes. However, in recent years, the Court has extended the plain view doctrine to incorporate items discovered using additional senses, especially smell (United States v. Place, 462 U.S. 696 [1983]) and feel (Cf., Minnesota v. Dickerson, 508 U.S. 366 [1993]).

Exigent (emergency) circumstances may justify warrantless entry into a private home for the purpose of making an arrest. The five exigencies identified earlier in this chapter for justifying a search also justify warrantless entry for making an arrest. In other words, a warrantless arrest with probable cause is permissible if any of the following is present: (1) hot pursuit, (2) danger to officers, (3) danger to third parties, (4) escape, and (5) destruction of evidence.

Unlike arrests made in a home (or in a third-party residence), arrests made in public do not require warrants. In United States v. Watson, 423 U.S. 411 (1976), the Supreme Court upheld the common-law rule that arrests made in public do not need to be predicated on a warrant.

The Supreme Court has declared that “the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine” (Atwater v. City of Lago Vista, 532 U.S. 318 [2001]).