5.5: Searches Without Warrants

There are also times in which law enforcement may conduct searches for evidence/property without a warrant. Certain circumstances arise in police work that allows officers to conduct searches. In this section, we are going to examine the conditions that allow police to search without a warrant.

Consent Searches

Government officials may conduct a search without a warrant or probable cause based upon an individual's consent, so long as that consent (1) was voluntary and (2) came from someone authorized to give it. Any evidence discovered during a lawful consent search may be seized and admitted at trial. Consent may be express or implied and need not be knowing and intelligent, even though it constitutes a waiver of Fourth Amendment rights.

To determine whether consent was given voluntarily, courts examine the totality of the circumstances. Factors that weigh on the court's determination of voluntariness include: (1) the consenting individual's knowledge of the constitutional right to refuse consent; (2) the consenting individual's age, intelligence, education, and language ability; (3) the degree to which the consenting individual cooperates with the police; (4) the consenting individual's attitude about the likelihood of the discovery of contraband; and (5) the length of detention and the nature of questioning, including police threat of physical punishment or other coercive behavior.

No single factor is dispositive. Moreover, the influence of drugs, intoxication, and mental agitation does not automatically render consent involuntary. Additionally, persons in lawfully detained vehicles do not have to be advised that they are free to leave before giving voluntary consent. The prosecution bears the burden of proving voluntary consent. Whether consent was voluntary is a question of fact reviewed under a clearly erroneous standard.

Consent is not voluntary if given only in acquiescence to a claim of lawful authority. Therefore, a search may not be justified based on consent given only after the official conducting the search asserts possession of a warrant or the possibility of obtaining a warrant if necessary. In addition, consent cannot justify a search conducted in reliance upon a warrant if a court subsequently determines that the warrant was invalid.

Consent to search is generally invalid if an illegal search or seizure occurred before consent was given. If, however, consent to search is given under conditions sufficiently attenuated from an illegal arrest or search, evidence discovered during the subsequent search will not be suppressed.

In addition, to express consent, consent may be implied by the circumstances surrounding the search, the person's prior actions or agreements, or the person's failure to object to the search.

Generally, anyone who has a reasonable expectation of privacy in the place or effects being searched can consent to a warrantless search, and any person with common authority over or other sufficient relationship to the place or effects being searched can give valid consent. However, if two residents are present during the search of their dwelling and one expressly denies consent, the other's consent is not valid. Courts recognize common authority to consent in each person whose mutual use of the property demonstrates “joint access or control for most purposes.” The law presumes that other users of the property assume the risk that areas under common control may be searched. The prosecution bears the burden of establishing that common authority exists.

Moreover, a warrantless search is valid when law enforcement personnel rely on a person's “apparent authority” to consent to the search if the reliance is in good faith and is reasonable based on all facts known by police at the time of the search. Some courts have held that even if a third party is acting as an informant or other agent of the government, that person may still consent to a warrantless search if otherwise empowered to consent.

The scope of a consent search may not exceed the scope of the consent given. The scope of consent is determined by asking how a reasonable person would have understood the conversation between the officer and the suspect or third party when consent was given. Generally, the express object of a search defines the scope of consent, unless the suspect or third party giving consent expressly limits its scope.

Consent to search may be revoked if a person effectively withdraws consent before the search is completed, and police may not continue searching based on prior consent.

Searches Incident to Arrest

When conducted incident to a lawful custodial arrest, a full search of the arrestee's person for both weapons and evidence is permitted. In addition, police may search containers and other items found on the arrestee's person and any items or areas within the person's immediate control at the time of the arrest. However, the search of the arrestee's person may not be unreasonably intrusive.

When police make a valid arrest of a recent occupant of a vehicle, police may search the passenger compartment of the vehicle only (1) “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle” or (2) “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Authorization to search a vehicle's passenger compartment also extends to any containers found therein.

Although police must conduct searches incident to arrest reasonably promptly, a substantial delay may be appropriate based on the circumstances surrounding a particular arrest. Searches incident to arrest conducted immediately before formal arrest are valid only if probable cause to arrest existed prior to the search. If the probable cause to arrest derives from a warrantless search, then the search is not justifiable as a search incident to arrest.

In general, an arrest does not justify a search of the arrestee's entire home. In Maryland v. Buie, however, the Supreme Court held that officers may conduct a limited protective sweep of “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” This sweep may extend to a non-adjoining area only if officers have a “reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” The protective sweep may only entail a cursory inspection of those spaces in which a person may be found and cannot last longer than is reasonably necessary to dispel suspicion of danger.

Exigent Circumstances

Government agents may conduct a warrantless search or seizure if (1) probable cause supports the search or seizure and (2) “exigent circumstances” exist. Exigent circumstances include imminent destruction of evidence, a threat to the safety of law enforcement officers or the general public, “hot pursuit” of a suspect by police, or the likelihood that a suspect will flee before the officer can obtain a warrant.

Conducting a warrantless search or seizure to preserve evidence is justified if the police reasonably believe that unless they immediately conduct a warrantless search, the evidence is in imminent danger of being removed or destroyed. Because narcotics can be destroyed easily, criminal investigations involving narcotics often result in warrantless searches or seizures based on exigent circumstances. If exigent circumstances do not compel an immediate warrantless search, police may secure a residence to prevent the destruction or removal of evidence before obtaining a search warrant.

If police reasonably believe that their safety or the safety of others--including that of a suspect--is threatened, they may enter a dwelling and conduct a full warrantless search. In the course of such a search, police are restricted to places where they reasonably believe inherently dangerous items are present. The police may also search a residence in which a violent crime has occurred if they reasonably believe victims or dangerous persons are present. Other dangers to the public may also constitute exigent circumstances. For example, a burning building or an imminent fire hazard may justify a warrantless entry into that building to extinguish the fire or eliminate the hazard. Officials at the scene of a fire or explosion do not need a warrant to remain in the building for a reasonable time after the fire has been extinguished to investigate the cause, to search for victims, or to prevent further damage. However, once the cause has been established, officials must secure a warrant to conduct a further search for evidence.

Warrantless searches may also be justified by the exigency of hot pursuit if the pursuing officers have probable cause to arrest the fleeing suspect. The Supreme Court has stated that “hot pursuit” means some sort of a chase, but it need not be an extended hue and cry “in and about [the] public streets.” The hot pursuit justification for a search is not valid unless officers make an immediate and continuous pursuit of the suspect from the crime scene. The scope of a search justified by hot pursuit is only as broad as necessary to prevent the suspect from resisting arrest or escaping.

A warrantless entry or arrest may be justified if the police have reason to believe that a suspect will flee before they can obtain a warrant. The permissible scope of such a search is only as broad as necessary to prevent the suspect from resisting arrest or escaping. Beyond the specific examples of exigent circumstances listed above, courts will consider several factors in deciding whether an exigent-circumstances search or seizure was proper. First, courts may consider the gravity of the offense that prompts a search or seizure. Second, police must demonstrate that the search was conducted in a reasonable manner, which requires a showing that a telephone warrant was unavailable or impractical for the searching officers. Third, the police may not engage or threaten to engage in conduct that violates the Fourth Amendment to create an exigency and subsequently use that exigency to justify a warrantless search or seizure. However, police generally do not have a duty to alleviate potential exigencies.

In determining whether exigent circumstances justify a warrantless entry, courts examine the totality of circumstances during the period immediately preceding the search.

Plain-View and Open Field

In certain situations, police may seize evidence that is in plain view without a warrant. First, the police must not “violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Thus, police may lawfully seize evidence in plain view when executing a search warrant or arrest warrant and when conducting a lawful warrantless search. Second, the incriminating character of the evidence seized must be immediately apparent, and police may not disturb or further investigate an item to discern its evidentiary value without probable cause. To establish probable cause, however, police may lawfully engage in investigatory action not considered a search under the Fourth Amendment.

Warrantless seizures of evidence based on the plain view doctrine may be valid even if the officers expected to find the seized evidence. The plain view doctrine also permits police to seize a container if its incriminating character is immediately apparent, and police may search inside the container if its contents are in plain view. In Minnesota v. Dickerson, the Court expanded the plain view doctrine to include a “plain touch” corollary. Several courts have also adopted “plain smell” and “plain hearing” corollaries.

Vehicle Searches

Most of the exceptions to the warrant requirement above do not, for one reason or another, require probable cause. An automobile search is an interesting hybrid because it does require probable cause to obtain a warrant, even though the officer is not obligated to actually obtain the warrant. The court allows this compromise because of the inherent mobility of vehicles. The criminal suspect could simply drive away from the officer and was required to leave the scene and go obtain a warrant. Merely citing the driver for a traffic violation, however, is not sufficient to establish probable cause for a lawful search.

To preserve evidence and to protect officers from hidden weapons, officers are allowed to search a person after they have been arrested. Such a search is known as a search incident to arrest. As an extension of this idea, the officer may search the area immediately surrounding the arrested person. That is the area immediately under the arrestee’s control. The Court has ruled the fact that the suspect is in handcuffs and could not reach for a weapon is immaterial.