Warrantless Search

• Author: Lloyd L. Weinreb
• Pages: 2845-2847

Page 2845

The FOURTH AMENDMENT makes no explicit provision for warrantless searches. The first clause of the amendment provides simply that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable SEARCHES AND SEIZURES, shall not be violated." This general prohibition is followed by another clause that provides more particularly for the issuance of SEARCH WARRANTS. The amendment itself does not indicate what connection there is between the two clauses (which are separated only by a comma and the word "and"). Accordingly, its application to various kinds of warrantless searches has depended heavily on which clause the Supreme Court favors. On the one hand, the first clause might be regarded as the main provision, searches pursuant to a warrant being only one type of reasonable search that is authorized. Or, if the second clause be emphasized, the absence of a search warrant might be regarded ordinarily as itself making a search unreasonable, the requirement of a warrant being disregarded only in exceptional circumstances including particularly lack of an opportunity to obtain one.

Some kinds of warrantless search are obviously necessary to the performance of other official duties. A police officer who unexpectedly makes an ARREST of someone committing a violent crime may necessarily search him for weapons. If the Fourth Amendment were deemed to prohibit every search without a warrant, one would be driven to the conclusion that the arresting officer's conduct was not a search at all within its contemplation. Current interpretation of the Fourth Amendment has avoided such an all-or-nothing approach. The amendment is applicable to a very wide range of official conduct interfering with expectations of privacy; within that context, the prevailing rules have established a number of situations in which a warrant to search is unnecessary.

The first such situation is the SEARCH INCIDENT TO AN ARREST. The need for an arresting officer to ensure that the person whom he arrests does not have in his possession a weapon or means of escape is the basis for the most frequently applied exception to the requirement of a warrant. Because police actively engaged in crime prevention often come on circumstances calling for an arrest without advance notice, a search incident to the arrest must be made without a warrant. Although not strictly necessary to effectuate the arrest, another reason for allowing a search is to prevent the arrestee from destroying EVIDENCE in his possession. The Supreme Court said in CHIMEL V. CALIFORNIA (1969) that all three justifications are sufficient to authorize a search of the arrestee's person and the area "within his immediate control" from which he might grab something. That general rule defines an area that may be searched without a warrant following an arrest, whether or not there is particular reason to believe that anything subject to seizure is there to be grabbed and, indeed, whether or not there is reason to believe that the arrestee is likely to grab anything. In effect, the rule authorizes a not-too-intensive search of the arrestee, including small containers on his person like a wallet or purse, and a small area around the place of the arrest. If a person were arrested in his home, the rule would authorize a limited search of the table or desk at which he sat, but not all the contents of the room or the contents of other rooms.

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