4.3: WARRANTLESS SEARCHES

According to US Criminal Law: Search and seizure without a warrant (2018), there are several categories of lawful searches that do not require a search warrant. The following are the most common exceptions to the search warrant requirement.

Consent

The simplest and most common type of warrantless searches are searches based upon consent. No warrant or probable cause is required to perform a search if a person with the proper authority consents to a search. A consent search requires the person being searched to freely and voluntarily waive their Fourth Amendment rights, granting the officer permission to perform the search.

The person has the right to refuse to give consent and except in limited cases may revoke consent at any point during the search. In Schneckloth v. Bustamante the U.S. Supreme Court found that officers were not required to warn people of their right to withhold consent in order for consent to be valid. However, the prosecution is required to prove that the consent was voluntary and not a result of coercion.

Officers are not required to conduct a search in a way that gives the individual an opportunity to revoke consent. In United States v. Dominguez, the court rejected the idea that, “officials must conduct all searches in plain view of the suspect, and in a manner slowly enough that he may withdraw or delimit his consent at any time during the search.”

Vehicle Exception

The motor vehicle exception was first established by the United States Supreme Court in Carroll v. United States. The motor vehicle exception allows an officer to search a vehicle without a warrant as long as he has probable cause to believe that evidence or contraband is located in the vehicle.

The motor vehicle exception is based on the idea of a lower expectation of privacy in motor vehicles due to the regulations they are under. Additionally, the ease of mobility creates an inherent exigency. In Pennsylvania v. Labron the U.S. Supreme Court, stated, “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.”

The scope of the search is limited to only what area the officer has probable cause to search. This area can encompass the entire vehicle including the trunk. The motor vehicle exception in addition to allowing officers to search the vehicle also allows officers to search any containers found inside the vehicle that could contain the evidence or contraband being searched for. The objects searched do not need to belong to the owner of the vehicle. In Wyoming v. Houghton, the U.S. Supreme Court ruled that the ownership of objects searched in the vehicle is irrelevant to the legitimacy of the search.

In United States v. Ludwig, The Tenth Circuit Court of Appeals found that a search warrant is not required even if there is little or no risk of the vehicle being driven off. The court stated, “[i]f police have probable cause to search a car, they need not get a search warrant first even if they have time and opportunity.” In United States v. Johns, the U.S. Supreme Court upheld a search of a vehicle that had been seized and was in police custody for three days prior to the search.

The court stated, “A vehicle lawfully in police custody may be searched on the basis of probable cause to believe it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search.”

The motor vehicle exception does not only apply to automobiles. The U.S. Supreme Court in California v. Carney found the motor vehicle exception to apply to a motor home. The court did however, make a distinction between readily mobile motor homes and parked mobile homes. A number of factors including, the home being elevated on blocks, whether the vehicle is licensed, and if it is connected to utilities determine if the motor vehicle exception applies. In United States v. Johns, the motor vehicle exception was applied to trucks. In United States v. Forrest, it was applied to trailers pulled by trucks. United States v. Forrest applied the exception to boats and in United States v. Hill to house boats. In United States v. Nigro and United States v. Montgomery the motor vehicle exception was found to also include airplanes.

Exigent Circumstances

The emergency exception allows officers to enter and search a residence in certain circumstances when these circumstances prevent them from obtaining a search warrant or consent. In Minnesota v. Olsen, preventing escape was found to be a valid emergency circumstance, In United States v. Santana, the court found that preventing the destruction of evidence and the hot pursuit of a criminal suspect, to also be valid reasons to conduct an emergency search. The right to perform legal warrantless searches to prevent harm to the officers or others was established in Warden v. Hayden. Thompson v. Louisiana and Mincey v. Arizona established the right for an officer to enter and search a residence in order to render immediate aid to a person in need of assistance.

Permitting officers to enter a residence to render immediate aid was upheld by the U.S. Supreme Court with the comment, “numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.” A “warrantless entry by criminal enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant.” The reason given for allowing these entries is that the police are acting to assist the person in need rather than make an arrest or collect evidence.

In order for the warrantless, consent less, entry and search to be legal, the officer must “reasonably believe” an emergency situation requiring immediate police intervention exists. The courts have often interpreted this to mean the officer must have probable cause. In Kerman v. City of New York, the court found “probable cause for a forced entry in response to exigent circumstances requires finding a probability that a person is in ‘danger.’” The courts commonly apply a test known as the Mitchell Test in determining if an emergency search was valid. This test requires the officer to have had “reasonable grounds to believe” that there was an emergency and an immediate need for police assistance, the search was not motivated primarily by an intent to arrest or seize evidence and there must have been a “reasonable basis approximating probable cause” to believe the area searched was associated with the emergency.

Emergency searches must be limited to searches for and to aid the injured. Officers may however, seize items in plain view during a lawful emergency search.

The most common emergency searches are as a result of a 911 call. Many of these calls are anonymous. In most cases the courts have found police response to anonymous calls to be unlawful unless additionally corroborating information is available. This information can include officer observations, such as sounds of violence, fighting, gun shots or cries for help.

An example of this can be found in Ohio v. Applegate. Officers were sent to the Applegate's home after receiving an anonymous call reporting domestic violence. The officers heard yelling, arguing and sounds of furniture being turned over. The officers entered the house and arrested the defendant. The court found “the movements of the officers were conservative, prudent, and reasonable.”

Courts generally only except “immediate” emergency searches to be valid. However, a few exceptions do exist. In State v. Kraimer, it was established that a reasonable delay to investigate, and corroborate an anonymous call does not invalidate the application of the emergency exception. Kraimer made three calls to a confidential police helpline stating that “he had shot and believed he had killed his wife 4 days earlier; that his wife’s body was in an upstairs bedroom near a bathroom; and that he had his four children, at home with him, who ranged in age from a 12-year-old male to a 2-year-old female.” Police attempted to locate the caller by checking school absences for children of matching ages. Police identified three families with matching absences. After checking the other two families, police arrived at Kraimer's house approximately four hours after the first call had been received. Neighbors told the police that they had seen the children playing in the yard, conflicting with the explanation of a vacation Kraimer had given the school. The officers called for backup and after a brief delay entered the house and found body of the Kraimer’s wife and other evidence. The court ruled the entry and search to be lawful and all evidence found to be admissible. The delay of the several hours while searching for the caller, did not eliminate the belief an emergency existed, nor did the wait for backup officers as it was a “reasonable precautionary measure.” Additionally, the court found the police are not required to accept a layperson's belief that a person is already dead.

Search Incident to Arrest

An exception to the warrant requirement is searches incident to a lawful arrest. This is also known as the Chimel Rule after the case that established it, Chimel v. California. This rule permits an officer to perform a warrantless search during or immediately after a lawful arrest. This search is limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon or destroy or hide evidence

Plain View

The plain view doctrine allows an officer to seize without a warrant, evidence and contraband found in plain view during a lawful observation. In order for the officer to seize the item, the officer must have probable cause to believe the item is evidence of a crime or is contraband. The police may not move objects to get a better view. In Arizona v. Hicks, the officer was found to have acted unlawfully. While investigating a shooting, the officer moved, without probable cause, stereo equipment to record the serial numbers. The plain view doctrine has also been expanded to include the sub doctrines of plain feel, plain smell, and plain hearing. In Horton v. California, the court eliminated the requirement that the discovery of evidence in plain view be inadvertent. Previously, "inadvertent discovery" was required leading to difficulties in defining "inadvertent discovery". A three-prong test is now used. The test requires the officer to be “engaged in lawful activity at the time”; “the object’s incriminating character was immediately apparent and not concealed”, and “the officer had lawful access to the object and it was discovered accidentally.”