Search Warrant Exceptions

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Exceptions to the Warrant Requirement
Emergency
Consent
Incident to a lawful arrest
Motor vehicle
Inventory
Overview of the Exceptions
Each exception has a standard of proof which the government must present to justify the use of the exception;

Failure to act under facts and circumstances reaching the standard will invalidate the entire search;

Any search under an exception is limited in scope
- acting outside of the scope will invalidate THAT PART of the search
Emergency Exception - General Rules
When exigent circumstances exist which require immediate action, it is reasonable for an agent to search without a warrant;

Exigent circumstances make it impractical/unreasonable to get a warrant;

Scope of search is limited to emergency justification, when emergency ends, authority to search ends;

Probable cause or reasonable suspicion for the search remains the requirement;
Emergency Exception - Prerequisite Justification
Safety of the agent or the general public;

Standard is facts and circumstances leading to a reasonable suspicion there is an emergency;

Reasonable suspicion suspect is armed (frisk suspect), individuals are present who pose a risk to the agent (do a protective sweep);

Preserve evidence or prevent escape, probable cause to believe evidence is being destroyed or that a suspect will escape;
Emergency Exception - Limited Scope
Scope of searches conducted is limited to that which is necessary to eliminate the emergency (address emergency/crime, get out, get warrant, then search);

Where emergency involves preservation of evidence from destruction, LEOs may secure a scene while a warrant is being obtained;

Where emergency involves prevention of escape, LEOs with PC may enter a residence to arrest the subject, but the search is limited to finding the subject;
Emergency Exception - Plain View
Any evidence or contraband in plain view of agents conducting an emergency search may be lawfully seized as long as the agent is lawfully in the place when the seizure is made;
Emergency Exception - Final Thoughts
No crime scene exception, emergency exception may justify initial actions;

The emergency (exigent circumstances) cannot be created by the government;
Consent Searches - Prerequisite Justification
An individual may voluntarily consent to the search of an area over which that person has apparent authority, and where that person and/or others may have reasonable privacy interests protected by the 4th amendment;

Probable cause NOT required because consented when asked;
Consent Searches - Voluntary Consent
Courts look at totality of circumstances in determining if an individual has voluntarily consented to a search;

Factors:
- Weapons
- Number of agents
- How the consent question was phrased
- Whether the individual was told that he/she did not have to consent
- Age, intelligence, and physical condition of the individual
- Time of day
Consent Searches - Apparent Authority
The person giving consent must have apparent authority over the area to be searched;

Issue involves apparent access and control, NOT ownership;

A reasonable agent will ask appropriate questions to insure they are dealing with a person who has the authority to consent to the search, the agent must act in good faith relying on apparent authority;
Consent Searches - Apparent Authority - Persons
Only the person being searched may consent to a search of their person;
Consent Searches - Apparent Authority - Home or Apartment
Husband/wife - either may consent to a search of all areas of the house unless one maintains exclusive control over a particular area, or where one consents and one objects;

Roommate - may only consent to search areas that are of common use and areas that the consenting party exclusively controls;

Tenants - the owner has no right to consent to the search of a rented dwelling;

Parents/children - may consent to searches of their children's rooms unless the parent has given up access to that room, children are usually unable to consent to a search of their parent's home where they also reside;
Consent Searches - Apparent Authority - Business
Employees may consent to search of areas of a business over which they have control;
Consent Searches - Limited Scope
Only the area within the apparent control of the individual consenting may be searched;

The consenting party may limit the search in any way they desire;

The consenting party may withdraw consent at any time;

Agent may not use a refusal to consent as PC to obtain a warrant;

You may search any container within the search area as long as what you are searching for may be in that container and you reasonably believe you have consent to search the container;
Consent Searches - Policy
Use "consent to search" form when available and practical;

Inform individual who you are, what you suspect, and what you want to search for;

Determine if individual has apparent authority to consent;

Inform individual that they have the right to refuse consent;

Inform individual that they can stop the search at any time;
Search Incident to Arrest - Prerequisite Justification
Where a lawful custodial arrest has occurred, the subject and the area within the subject's immediate control may be searched for weapons, contraband, and evidence of any crime, solely because the individual has been placed under arrest;

A custodial arrest significantly diminishes an individual's expectation of privacy/4th amendment protection on their person;
Search Incident to Arrest - Lawful Custodial Arrest
Does not apply to non-custodial or de minimus seizures like traffic stops and investigative detentions;

If the arrest was unlawful (not based on PC), the search incident to the arrest is unlawful;

If the arrest was a reasonable mistake (arrest the wrong person), evidence seized in a search incident to the arrest is still admissible;

The arrest should occur BEFORE the search, however, if you intend to arrest an individual you may conduct the search incident to that arrest prior to the arrest, but if you do not intent to arrest, even if you have PC to arrest, do not conduct a search incident to the arrest UNTIL you do arrest or decide to arrest;
Search Incident to Arrest - Entry to Make Lawful Arrest
Arrest in a public place requires no warrant to search for the individual you want to arrest;

Arrest in the subject's home requires an arrest warrant and probable cause to believe the subject is at the home (without a warrant, you need an emergency or consent to enter the subject's home);
Search Incident to Arrest - Entry to Make Lawful Arrest (cont)
Arrest in a third-party home requires an arrest warrant (or PC) for the subject and a search warrant (or an exception) to locate the subject in the home to be searched;

Failure to obtain a search warrant leaves the agent open to civil liability to the third-party homeowner for a constitutional violation;

Failure to obtain a search warrant will cause any evidence seized in plain view during the arrest to be suppressed against anyone who has a privacy interest in the third-party home;
Search Incident to Arrest - Limited Scope - Person
The sooner you search, the better;

The subject's person;

Items in subject's possession:
- all open or closed containers may be searched
- FBI policy is to get a warrant for locked containers
Search Incident to Arrest - Limited Scope - Area Within the Subject's Immediate Control
Depends upon the facts of the case;

Limited to an area the subject can lunge to, usually the room the subject is arrested in, or if in a car and search allowed, the inside of the car;

Subject does not have to still be in the area searched but should be;

May search containers within this area (get warrant for locked containers);
Search Incident to Arrest - Limited Scope - Area Adjacent to the Subject's Immediate Control
Agents may search areas immediately adjacent (one threshold rule) from the area where the subject was arrested to find people who pose a danger to the agent;

Agents may search all areas in the building where the subject is arrested for persons who pose a danger when they have reasonable suspicion that others are present;
Search Incident to Arrest - Limited Scope - Passenger Compartment of Automobiles
Pursuant to the arrest of the driver, passenger, or recent occupant of an automobile, the entire passenger compartment may be searched incident to the arrest if:
1) arrestee is unsecured and within reaching distance, or
2) reasonable to believe vehicle contains evidence of offense of arrest

Search may include any unlocked containers inside the car including the property of individuals who are not being arrested;

Prior to the search the individual being arrested and others inside the automobile may be removed from the automobile;

You may not search the trunk based on the arrest;
Search Incident to Arrest - Limited Scope - Items & Timing
Items:
- Evidence of any crime
- Weapons
- Any item which could be used for escape

Timing:
- Person of individual arrested - anytime (may move subject to expand search)
- Area in immediate control - contemporaneous with arrest
- Passenger compartment of vehicle - contemporaneous with arrest but vehicle may be moved for safety reasons
Search Incident to Arrest - Cell Phone Data
SC ruled that LEOs must obtain a search warrant before searching digital data on a cell phone seized incident to arrest;
Search Incident to Arrest - Policy
GET A WARRANT when practical;
Vehicle Exception - Prerequisite Justification
Where an agent has probable cause to believe a vehicle contains evidence of a crime, that agent may search the vehicle for evidence (for which the PC exists);

Oldest warrant exception;

Rationale is the mobility (historically) and the reduced/lower reasonable expectation of privacy/4th amendment protection in vehicles;
Vehicle Exception - Limited Scope - Particular Items
Same as if agent possessed a warrant to search a vehicle for particular items:
- Limited to places where items, for which PC exists, may be located (logical places where items may be)
- May search any part of the vehicle, including the trunk, and locked or unlocked containers located in the vehicle and trunk;
Vehicle Exception - Limited Scope - Package in a Vehicle
Where PC only relates to a package in a vehicle:
- Search the vehicle for the package - limited to those areas where the package may be; you may search the package after you find it but you may not continue to search the vehicle for additional evidence or contraband (no PC)
Vehicle Exception - Limited Scope - Timing & Vehicles
Timeliness:
- May conduct the search anytime that the PC still exists, may move the vehicle before searching it

What is a Vehicle?
- Automobile
- Boat
- Aircraft
- Recreational vehicle
- Not a mobile home used as a residence
Vehicle Exception - Policy
Requires agents with PC to search a vehicle, to obtain a warrant to search the vehicle if practical;

If there is enough time, get a warrant despite the exception;
Inventory Searches - Prerequisite Justification
Where an agent has lawfully taken control of property the agent has the authority to examine the property for the purpose of conducting an inventory as part of a regularly established procedure;

Rationale is to locate and secure:
1) valuable, or
2) dangerous items

Lawful control;

Inventory purpose - acting in good faith;

Established procedure;
Inventory Searches - Limited Scope
Open locked and unlocked containers;

Examine to determine value or danger only;
Inventory Searches - Policy
Inventory all seized items;
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