Searches and Arrests without Warrants CHAPTER OVERVIEW The situations in which law enforcement officials can search without a warrant almost outnumber the number of situations in which they cannot search without a warrant. The
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.
WARRANTLESS SEARCHES The four types of warrantless searches are (1) searches incident to an arrest; (2) searches conducted under exigent circumstances; (3) searches involving automobiles; and (4) searches based on the “plain view” doctrine.
Searches Incident to Arrest
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.
The leading case in searches incident to arrest is Chimel v. California, 395 U.S. 752 (1969). Officers in that case arrested Chimel in his home and then searched both him and his house.
Restrictions on Searches Incident to Arrest. Basic requirements concerning searches incident to arrest are:
The arrest itself must be lawful
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.
Timing of the Search.
Probable cause to arrest must precede the warrantless search (Sibron v. New York, 392 U.S. 40 ). 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.
In Preston v. United States, 376 U.S. 364 (1964), Justice Black observed that the “justifications [for the search incident to arrest] are absent where a search is remote in time or place from the arrest.” Police officers had arrested the occupants of a car and taken them to jail. After this, the officers searched the car, which had been towed to an impound lot. The Supreme Court noted that the possibilities of destruction of evidence and danger to the officers were no longer in place, as the suspects were no longer even present.
Scope of the Search.
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.”
Armspan rule stated a search incident to arrest would now be limited to the area “within [the] immediate control” of the person arrested—that is, “the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.”
Expansions of the Armspan Rule: The police may, as part of a search incident to arrest, look in areas immediately adjoining the place of arrest for other persons who might attack the officers. In such cases, no justification is required to search these persons. Additionally, the police may engage in a protective sweep, defined as “a cursory visual inspection of those places in which a person might be hiding.”
Summary: Requirements for Searches Incident to Arrest.
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.
SEARCHES BASED ON EXIGENT CIRCUMSTANCES Exigent circumstances exception or emergency circumstances of the situation require the police to act immediately to avoid danger to themselves, danger to others, the destruction of evidence, or the escape of the suspect; it would be unreasonable to require the police to take time to obtain a warrant. Generally, three types of exigencies are recognized by the courts as authorizing the police to act without a warrant: (1) hot pursuit; (2) likelihood of escape or danger to others absent hot pursuit; and (3) evanescent evidence.
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 the case of Warden v. Hayden, 387 U.S. 294 (1967), the police were called by taxicab drivers who reported that their taxi company had been robbed. The police followed the suspect to a house, where they were granted entry by the suspect’s wife. The suspect was upstairs in the house, pretending to be asleep. While searching the house for the suspect, the police found and seized clothing, a shotgun, and a pistol, all of which were used against the suspect at trial. The Court found the warrantless entry reasonable because the “exigencies of the situation made that course imperative.”
In United States v. Santana, 427 U.S. 38 (1976), the Supreme Court upheld the warrantless arrest of a woman in her house when the police merely observed a crime on private property from a public vantage point.
In Welsh v. Wisconsin, 466 U.S. 740 (1984), Justice Brennan argued that the government’s “claim of hot pursuit . . . [was] . . . unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of [the] crime.”
Escape and Endangerment to Others Absent Hot Pursuit Police must enter and arrest a suspect without a warrant to prevent the suspect from escaping or inflicting harm, but their actions cannot be characterized as “hot pursuit.”
In Minnesota v. Olson, 495 U.S. 91 (1990), for example, the prosecution sought to justify a warrantless entry and arrest of a suspect in a duplex that the police had surrounded. There was probable cause to believe that Olson, the man in the duplex, had been the driver of a getaway car involved in a robbery and murder the day before. The Supreme Court ruled that the officers acted unconstitutionally under the circumstances because Olson was only the driver, not the murder suspect, and the weapon had been recovered, which diminished the urgency of the situation. In addition, it was unlikely Olson would escape because the building was surrounded. On its face, then, this case is not useful on this point. However, the Court seemed to suggest that had Olson not been the driver (he had been the suspected murderer), had the weapon not been recovered, and had the building not been fully surrounded, the warrantless action would have been lawful.
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.
In Breithaupt v. Abram, 352 U.S. 432 (1957), the Court upheld the warrantless intrusion (via a needle) into a man’s body for the purpose of drawing blood to see if he had been drinking.
In Cupp v. Murphy, 412 U.S. 291 (1973), a man who had been informed of his wife’s strangulation volunteered to come to the police station for questioning. While he was at the station, officers observed what appeared to be dried blood on the man’s fingernails. The officers asked if they could take a scraping from his fingernails, and the man refused. He then started rubbing his hands behind his back and placing them in his pockets. At that point, the officers forcibly removed some of the material from under the man’s fingernails. The Court upheld this action on the grounds that the police had probable cause to believe that “highly evanescent evidence” was in the process of being destroyed.
Exigent Circumstances and the Seriousness of the Offense The Supreme Court has also noted that the seriousness of the offense may be relevant in determining whether exigent circumstances are present.
The D.C. Circuit’s opinion in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970), highlighted seven factors that may permit warrantless entry:
• The offense is serious.
• 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.
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).
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.
Probable Cause Requirement
Although police may search a vehicle without a warrant, the search must still be based on probable cause.
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 ).
Impracticality of Obtaining a Warrant
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.
Coolidge v. New Hampshire, 403 U.S. 443 (1971) involved the warrantless search of two cars located on defendant’s property. The Court ruled that the automobile exception did not apply because the police had probable cause to act more than two weeks before the search. Husty and Coolidge suggest that the warrantless search of an automobile will only be upheld if it was impractical to obtain a warrant. This third requirement is unresolved.
Scope of the Search
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.”
Other Actions in a Traffic Stop
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 ). 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 ). The police may also engage in searches with consent (Ohio v. Robinette, 519 U.S. 33 ), seize items that are in plain view (Horton v. California, 496 U.S. 128 ), frisk the driver and/or search the passenger compartment of the vehicle out of concerns for safety (Michigan v. Long, 463 U.S. 1032 ), 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 ).
When Other Doctrines Govern Searches of Automobiles
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.
Racial profiling occurs when the police use race or ethnicity as a factor in determining whether to stop someone. A driver’s race or ethnicity obviously does not provide the justification to stop him or her. But many argue that the police often use existing traffic laws, which are numerous and frequently violated, to single out certain drivers based on their race or ethnicity. The Supreme Court has yet to decide on the constitutionality of this type of conduct directly, but at least one of its decisions has come close.
In Whren v. United States, 517 U.S. 806 (1996), Washington, D.C., police made a traffic stop and observed two bags of crack cocaine in the hands of a passenger who was seated in the front of the car. The police testified that they stopped the driver because he had violated traffic laws. In contrast, the defendants claimed that the stop was made based on their race and that the police used alleged traffic violations as a reason to stop them.
Equal Protection Claims
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.
Civil Rights Act of 1964
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.
PLAIN VIEW SEARCHES The “plain view” doctrine first emerged in the Supreme Court’s decision in Coolidge 403 U.S. 443. The Court decided that a plain view seizure is authorized when (1) the police are lawfully in the area where the evidence is located; (2) the items are immediately apparent as subject to seizure; and (3) the discovery of the evidence is inadvertent.
The Lawful Access Requirement
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:
[P]lain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle . . . that no amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.
The “Immediately Apparent” Requirement
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
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.
In Horton v. California, 496 U.S. 128 (1990), the Court abandoned the inadvertency requirement, declaring that inadvertency, although a “characteristic of most legitimate ‘plain view’ seizures, . . . is not a necessary condition” of the doctrine.
Plain Touch, Feel, and Smell
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 ) and feel (Cf., Minnesota v. Dickerson, 508 U.S. 366 ).
Plain View as a Fallback Measure It should be noted that the plain view doctrine is often thought of as something of a fallback measure. There are countless situations in which the plain view doctrine would seem to apply but in which the courts have based their decisions on other doctrines.
WARRANTLESS ARRESTS Arrests Based on Exigent Circumstances
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.
Arrests in Public Places
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.
Arrests for Minor Offenses
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 ).
In Virginia v. Moore, 553 U.S. 164 (2008), police stopped a motorist for driving with a suspended license. Virginia state law required that the officers issue a citation and summons to appear in court. Instead, the officers arrested the driver. In a search incident to arrest, officers found cocaine. Moore’s attorney sought suppression of the cocaine at trial. The trial court judge allowed the evidence, but the Virginia Supreme Court reversed. In a unanimous decision, the Supreme Court held that the officers did not violate Moore’s constitutional rights.