E. Exceptions To the Warrant Requirement

• Jurisdiction: New York

E. Exceptions to the Warrant Requirement

1. Abandonment

The prosecution has the burden of showing that the accused voluntarily relinquished his or her rights and abandoned the seized property.⁴⁰⁹ Property is abandoned when it is voluntarily and knowingly discarded.⁴¹⁰ If the abandonment is coerced or directly precipitated by unlawful police activity, then the seized property may be suppressed as the fruit of the poisonous tree.⁴¹¹ Was the contraband revealed as a direct consequence of an illegal stop⁴¹² or was it relinquished by a calculated decision such that the discovery of the evidence is attenuated from the illegal police conduct?⁴¹³ Was the abandonment a spontaneous response to illegal police activity or a considered judgment to waive any privacy interest in the item searched and seized?⁴¹⁴ If the police did not force the abandonment then the defendant does not have standing to contest the seizure.⁴¹⁵

2. Automobile Exception

The stopping of an automobile is lawful when conducted pursuant to nonarbitrary, uniform procedures, or where there is probable cause or reasonable suspicion to believe that a motorist has violated the law.⁴¹⁶ A warrantless search of the car is permitted where there is probable cause to believe that the car itself is being used to commit a crime or that it contains evidence of a crime.⁴¹⁷ But a vehicle search must be based upon independent probable cause as opposed to its mere association with a driver or passenger.⁴¹⁸

Once a vehicle is lawfully stopped, the police may:

1. order the driver out of the vehicle to conduct the investigation;⁴¹⁹

2. order any passenger out of the vehicle;⁴²⁰ or

3. conduct a search of the passenger compartment if probable cause exists to believe that the vehicle contains contraband.⁴²¹

A warrantless search of automobiles is permissible based upon the ease with which the automobile can be driven away. Where there is no evidence that the vehicle is in imminent danger of being removed, a warrant must be obtained.⁴²²

An impounded vehicle may be searched to inventory its contents so long as the procedure is routine policy.⁴²³ Any contraband discovered during the inventory may be seized and introduced into evidence.⁴²⁴

Where the search is an inventory search, the police have too much discretion. The fruits must be suppressed.⁴²⁵

It is constitutionally permissible for police to stop cars at a roadblock for the purpose of determining whether individual drivers are intoxicated so long as the stops are made in accordance with a uniform procedure.⁴²⁶

3. Search Incident to Arrest

A search incident to a lawful arrest requires no additional justification.⁴²⁷ The lawfulness of a search incident to arrest depends upon the legality of the arrest.⁴²⁸ The arrest itself may not be predicated upon the seized items.⁴²⁹

Once an individual is in custody, his or her personal effects may be searched,⁴³⁰ but the search must be contemporaneous with the arrest and confined to the immediate vicinity of the arrest.⁴³¹ The search is limited to the "grabbable area" surrounding the accused.⁴³² This area has been expanded to include a closed container in the compartment of an automobile,⁴³³ the locked briefcase of a handcuffed accused⁴³⁴ and a search under a suspect's mattress.⁴³⁵ "Grabbable area" is not defined by the arrestee's ability to grab.

Of course, once the defendant has been arrested, his or her personal property may be searched as part of arrest processing.⁴³⁶

4. Consent Searches

A search made without a warrant and without probable cause may still be held to be lawful if it is based upon consent.⁴³⁷ The prosecution must prove the voluntariness of an accused's consent beyond a reasonable doubt,⁴³⁸ and must demonstrate from the totality of the circumstances that the consent was not the result of duress or coercion, express or implied.⁴³⁹

Among the factors to be considered in determining the voluntariness of an accused's consent set forth in People v. Gonzalez:⁴⁴⁰

1. Whether the accused was in custody at the time consent was given.

2. The background for the accused (i.e., education, criminal record).

3. Whether the individual was advised that he or she could refuse to consent.

4. Whether the individual was evasive or uncooperative with law enforcement authorities.⁴⁴¹

A person in custody may voluntarily consent to a search,⁴⁴² but once the accused requests counsel, he or she cannot consent to a search in the absence of counsel.⁴⁴³ Suppression will result when the search exceeds the scope of the consent.⁴⁴⁴

A third party may issue a valid consent to search an accused's premises if the third party has sufficient control over the premises to consent to the intrusion,⁴⁴⁵ or if the police in "good faith" reasonably believe that the third party had authority to consent—apparent authority.⁴⁴⁶

5. Exigent Circumstances

A warrantless search of premises will be upheld if the police did not have time to obtain a warrant due to the reasonable possibility of danger to people's lives, imminent escape of a suspect or imminent destruction of contraband.⁴⁴⁷ Where the police have sufficient time to obtain a warrant, the search will be found unlawful.⁴⁴⁸

Where there is a reasonable threat that dangerous weapons are about to be used, exigent circumstances will be found.⁴⁴⁹ Where there is the threat of immediate destruction or removal of contraband, the court will consider five factors to justify a warrantless entry and search of premises:

1. The degree of urgency involved and the amount of time necessary to obtain a warrant.

2. The reasonableness of the belief that the contraband is about to be removed or destroyed.

3. The possibility of danger to the police officers guarding the site while a warrant is obtained.

4. Information indicating that the possessors of the contraband are aware that the police are on their trail.

5. The ready destructibility of the contraband.⁴⁵⁰

6. Plain View

Police can make a warrantless seizure of any evidence or contraband they observe lying in open view if they are lawfully in the area from which the observation is made, and their observation was inadvertent (i.e., they had no prior expectation that they would see the object).⁴⁵¹ Where police could anticipate that they would find the object where it was discovered, the open view doctrine is inapplicable.⁴⁵² In contrast, the Supreme Court has eliminated the inadvertence requirement for plain view seizures.⁴⁵³ Where the initial intrusion of the police is unlawful, any objects discovered in open view must be suppressed.⁴⁵⁴ The plain-view exception does not extend to the discovery by touch of concealed items.⁴⁵⁵

7. Securing Premises

Although the police cannot search premises without a warrant, where they have lawfully entered premises without a warrant, they may conduct a security check to ensure their safety and "freeze" the premises while awaiting the warrant.⁴⁵⁶

8. Administrative Searches

Administrative searches are conducted on standards that are lesser than probable cause.⁴⁵⁷ These searches have been approved by the Court of Appeals, which has noted that the evidence in support of the search does not have to rise to the level of probable cause. Instead, the searches must be reasonable.⁴⁵⁸

--------

Notes:

^[409] Abel v. United States, 362 U.S. 217 (1960); People v. Howard, 50 N.Y.2d 583, 430 N.Y.S.2d 578, cert. denied, 449 U.S. 1023 (1980).

^[410] People v. Ramirez-Portoreal, 88 N.Y.2d 99, 643 N.Y.S.2d 502 (1996).

^[411] Wong Sun v. United States, 371 U.S. 471 (1963).

^[412] People v. Cantor, 36 N.Y.2d 106, 365...