3.5.7 Exceptions to the Search Warrant Mandate
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3.5.7 Exceptions to the Search Warrant Mandate
Close scrutiny of the warrant requirement is certainly important. Still, most searches and seizures conducted in the United States fall within well-recognized exceptions to the warrant requirement.
3.5.7.1 Search Incident to Arrest
An officer is entitled to search an arrestee and the area within that person's immediate control at the time of the arrest without a warrant.121 This search is automatically allowed with a lawful arrest. Thus, there is no requirement that the arresting officer have a subjective or objective belief that the search will produce evidence or weapons.122 Such a search is justifiable under the Fourth Amendment, as explained by the Supreme Court:
[I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape . . . [and also] to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.123
The scope of the search incident to arrest is limited in time and space. The search must be contemporaneous with the arrest.124 More difficult to determine is the searchable area. Police may search the space within the immediate control of the arrestee—that individual's "wingspan" or "reaching" or "grabbing" area. All clothing, pockets, and containers on the person are generally subject to a search incident to arrest.125 An officer may closely follow the arrestee around the premises and search each new area within that individual's immediate control.126 In an automobile, police may lawfully search the entire passenger area (including the glove compartment) when the arrestee is "unsecured and within reaching distance of the passenger compartment at the time of the search" and—if the arrestee is outside the vehicle and secured—when police reasonably believe that "evidence relevant to the crime of arrest might be found in the vehicle."127
A search of a cell phone is one big exception to police authority to conduct a warrantless search of containers on a person incident to a lawful arrest. The Supreme Court considered whether the police may conduct a warrantless search of "digital information on a cell phone seized from an individual who has been arrested."128 The Court issued a single decision covering two cases. One case involved a "smart phone" with "advanced computing capability" as well as "internet connectivity"; the second phone "was a 'flip phone'" with "a smaller range of features."129 The Court unanimously decided that "officers must generally secure a warrant before conducting such a search."130 The Court noted that "[a] search of the information on a cell phone bears little resemblance to the type of brief physical search" that original search incident cases envisioned.131 Officers may still "examine the physical aspects of a phone to ensure that it will not be used as a weapon" against them, but once they determine that the phone is not a physical threat, the data on the phone is off limits.132 "Modern cell phones . . . implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse."133
The police may perform a "protective sweep" of the areas immediately adjoining the place of arrest from which an attack by accomplices could be launched (e.g., adjoining closets).134 The protective sweep can expand to places outside the immediate area of arrest if the police have a reasonable and articulable suspicion that accomplices who might pose a threat may be present there. But the sweep must be limited to places where the persons could be found. Once again, the rationale is the safety of the officers.
[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. . . .
We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.135
3.5.7.2 Automobiles: The Basic Doctrine
The Supreme Court has consistently approved warrantless searches of movable vehicles, provided police have probable cause for the search. The Court views vehicles as special because they are mobile and less private than other forms of property. This movable vehicle exception is applied in many situations, even when the vehicle is unlikely to be moved or is in full custody of the police.136 The doctrine was established early in the twentieth century:
[The Court] recogniz[es] a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.137
If officers have probable cause to believe a vehicle contains evidence or contraband, they may normally search that vehicle without a warrant. The Court has reaffirmed the rule on numerous occasions.138 The Court has also applied the exception to a mobile home.139 Officers may open containers in a vehicle, whether they belong to the owner140 or to a passenger,141 if the containers are ones in which the suspected evidence or contraband could be found.142 Moreover, the warrant exception applies even if the initial suspicion relates to a particular container and not to the vehicle itself.143
3.5.7.3 Traffic Violations: Drivers, Passengers
At a lawful traffic stop, police officers are afforded broad authority to order occupants out of the car. For safety, an officer may order the driver144 and passengers out of the vehicle,145 even when there is no reason to suspect that the individuals are dangerous or that further criminal activity is likely. Police who conduct a lawful traffic stop, for example, based on excessive speed, may also use a canine officer to conduct a sniff of the outer portions of the car for contraband without additional cause,146 provided the police do not extend a completed traffic stop without additional suspicion.147
The officer's actual motivation for making an arrest or an initial traffic stop is irrelevant, provided there is sufficient probable cause or reasonable suspicion for the stop. That is, pretextual stops are not illegal under the Fourth Amendment.148 When an officer has probable cause to arrest for a traffic offense but a citation is given instead, a full search is not constitutional.149 On the other hand, with probable cause, an officer may arrest someone for a misdemeanor that did not involve a breach of the peace.150
3.5.7.4 Automobile Inventory
Generally, a routine, warrantless inventory of a lawfully impounded vehicle is reasonable under the Fourth Amendment, even absent probable cause or reasonable suspicion to believe weapons or evidence will be present.151 Inventories are fundamentally different from other vehicle searches because they require no suspicion or likely danger. Instead, they are viewed as protecting three important interests: (1) the owner's property, (2) lost property claims against the police, and (3) any harm to the public from weapons inside the car.152 The doctrine applies to the vehicle as well as to containers within the vehicle.153 In addition, if an inventory search establishes probable cause, a further search of the vehicle is valid without a warrant.154
The requirements for an inventory search are limited. The car must lawfully be in custody.155 The police department must have reasonable guidelines establishing a nondiscretionary basis for the search.156 The search cannot be made in bad faith.157
3.5.7.5 Roadblocks
The Court has upheld the use of roadblocks to check the sobriety of drivers passing by a checkpoint.158 Such roadblocks—in which police briefly seize and look into vehicles—do not present the same dangers of unlimited police discretion that the Court was concerned with in earlier cases.159 The state has a great interest in preventing drunk driving,160 an interest that can be promoted through routine, nondiscretionary roadblocks conducted in a nonintrusive fashion.161
3.5.7.6 Plain View
The rationale for warrantless, "plain view" searches is that no privacy interest is invaded when an officer comes upon contraband or evidence in open sight or while conducting a lawful search for other evidence. Although the discovery need not be inadvertent,162 to justify a plain-view claim, the officer must be in a place where she has a lawful right to be,163 the evidence needs to be obvious to her,164 and police must have probable cause before seizing evidence.165
Evidence is in "plain view" in a variety of situations.166 Evidence discovered during the lawful execution of a warrant167 or a hot-pursuit entry qualifies.168 In addition, the doctrine has been applied to officers following an arrestee to a room,169 investigating a fire,170 conducting an inventory search of a car,171 and looking for a vehicle identification number.172
3.5.7.7 Stop and Frisk
As noted previously,173 the Supreme Court held in Terry v. Ohio174 that an officer may briefly detain, question, and conduct a limited warrantless search...
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