Warrantless Searches

For the most part, the Fourth Amendment to the United States Constitution indicates that searches by the government conducted without a warrant are not legal. Specifically, the Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment IV, United States Constitution

Basically, the Supreme Court has indicated that ‘searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U.S. 347, 357 (19 67).

Simply put, most of the time, law enforcement needs a warrant to search a person or a place, however there are times when a warrant is not necessary.

Here are six of the main exceptions:

• Search of a Person Incident to Arrest: A warrantless, contemporaneous search of a person being arrested, and the area from which he might obtain a weapon or destroy evidence, does not violate the Fourth Amendment. See, Chimel v. California, 395 U.S. 752 (1969).
• Search of a Vehicle Incident to Arrest: When police lawfully arrest the occupant of a car, they are permitted to search the passenger compartment of the car. New York v. Belton, 453 U.S. 460 (1981). The rule has recently been interpreted by Arizona v. Gant, 129 S. Ct. 1710 (2009). In Gant, the Court indicated police, “may search incident to arrest only the space within an arrestee’s immediate control, meaning, the area from within which he might gain possession of a weapon or destructible evidence.”
• Automobile Exception: A warrantless search of an automobile is not unconstitutional if law enforcement has “probable cause to believe that the vehicle contains contraband.” United States v. Ross, 456 U.S. 798, 808 (1982).
• Inventory Searches of Vehicles: A vehicle inventory search occurs if when a vehicle is taken into possession lawfully and then subsequently searched in order to take an inventory of the contents. An example might be when a vehicle is involved in a crime and then subsequently towed into a police impound lot. Law enforcement can lawfully enter the vehicle and take note of the contents in order to protect the owner’s property and avoid later disputes and false claims against the police department for missing or damaged items.
• Plain View: The law is clear that a police officer may seize contraband items and evidence that are in “plain view” if they are lawfully in a location. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443 (1971). To justify a warrantless seizure based upon plain view, three conditions must be met:
  • The seizing officer must not have violated the Fourth Amendment “in arriving at the place from which the evidence could be plainly viewed.” Horton v. California, 496 U.S. 128, 136 (1990).
  • The item must not only be in plain sight, but “its incriminating character must also be immediately apparent.” Horton v. California, 496 U.S. 128, 136 (1990).
  • Not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself. Horton v. California, 496 U.S. 128, 136 (1990).
• Consent: A search without a warrant can be conducted if, under the totality of the circumstances, the officers have obtained voluntary consent. Bumper v. North Carolina, 391 U.S. 542, 548 (1968).

The reality is that in most criminal cases, a search occurs which results in the finding of contraband or evidence used by the prosecution. Every defense attorney should be able to immediately recognize when to challenge a search. Even if the evidence seems more than clear that a warrant was valid or there was a valid exception to a warrant requirement, a challenge should always be filed in the form of a Motion to Suppress. The burden is on the State to prove that a warrant was used or one of the exceptions to the warrant requirement applied, and as such, there is no harm in forcing the government to prove up their burden.

Common arrests and factual situations where motions to suppress are proper include the following:

1. Traffic stops and subsequent arrests for driving under the influence
2. Traffic stops and subsequent arrests for possession of drugs
3. Traffic stops and subsequent arrests for possession money
4. Searches of a homes that result in drugs being found
5. Search of homes that result in weapons being found
6. Searches of clothing that result in drugs being found
7. Searches of clothing that result in weapons being found
8. Statements given by people who talk to law enforcement
9. Statements given by people who have been arrested
10. Searches of computers
11. Searches of cellular phones

These are just a few situations where an experienced defense attorney can focus his or her attention to try and get criminal charges dismissed or reduced substantially.