How to Analyze Exceptions to the Search Warrant Requirement on a Criminal Procedure Essay

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How to Analyze Exceptions to the Search Warrant Requirement on a Criminal Procedure Essay

THE SEARCH WARRANT REQUIREMENT

Absent an exception, a government search that physically intrudes into an area where a person has a reasonable expectation of privacy is unlawful UNLESS the government agent performing the search properly executes a valid search warrant.

You can think of the exceptions to the search warrant requirement as seven E.S.C.A.P.E.S. from the warrant requirement:

(E) Exigent circumstances
(S) Search incident to lawful arrest (SILA)
(C) Consent
(A) Automobiles
(P) Plain View
(E) Evidence obtained from administrative searches
(S) Stop and frisk

EXIGENT CIRCUMSTANCES

Law enforcement officers may conduct a search without a warrant if: (1) the officers are in “hot pursuit” of a suspect; (2) the officers or public are in immediate danger; OR (3) the evidence would spoil or disappear in the time it would take to obtain a warrant.

However, a warrant is necessary for a search if the officers create the exigent circumstances.

SEARCH INCIDENT TO A LAWFUL ARREST (SILA)

Law enforcement officers may conduct a search for weapons or evidence without a warrant if the search occurs at the time that a lawful arrest is made. The scope of the search is generally limited to objects within the reach of the arrestee. If the arrest is made in a home, adjoining rooms may also be searched to ensure officer safety (i.e., other assailants that may be lying in wait).

CONSENT

Law enforcement officers may conduct a search without a warrant if a person voluntarily consents to a search. Officers do NOT have to inform the subject that she has the right to refuse consent to the search.

A third party with apparent authority can consent to search. However, officers cannot search over a present occupant’s objection (e.g., if one occupant consents and the other occupant refuses, officers cannot search the property).

AUTOMOBILES

Law enforcement officers may conduct a search without a warrant if they have probable cause to believe that an automobile contains contraband or evidence of a crime. They can search the parts of the vehicle, and containers inside, which could reasonably contain the items for which there is probable cause (e.g., cannot search for a shotgun in the glove box where it cannot reasonably fit).

PLAIN VIEW

Law enforcement officers may seize evidence without a warrant if: (1) the officers are legally on the premises; (2) the evidence is observed (with any of the five senses) in plain view; AND
(3) there is probable cause to believe the items are evidence of a crime or contraband.

ADMINISTRATIVE SEARCHES

Law enforcement officers do NOT need search warrants to conduct administrative searches if the search is both: (1) reasonable; AND (2) conducted pursuant to established police agency procedures that are designed to meet legitimate objectives while limiting the discretion of the officer. (e.g., airplane boarding areas, international borders, roadblocks for drunk drivers, etc.)

STOP AND FRISK (TERRY STOPS)

Law enforcement officers can stop an individual when the officer has a reasonable suspicion, based on articulable facts (i.e., more than a “hunch” – less than probable cause), to believe that the subject is or is about to be engaged in criminal activity.

During a Terry stop, an officer can frisk a suspect for WEAPONS without a warrant; however, the officer cannot initiate a search for EVIDENCE. If the frisk for weapons reveals objects whose shape makes their identity obvious (e.g., object is obviously contraband), the officer may seize those objects.
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