Skip to comments.How to Tell When You Need a Search Warrant (Disturbing)
Posted on 04/27/2014 10:07:57 AM PDT by 2ndDivisionVet
While it's always best to have a piece of paper to back you up in court, sometimes shortcuts are OK.
You have to reign in your natural hunter's instinct and take the time to get a search warrant. There's the affidavit of probable cause to compose, the warrant form to fill out, maybe a review by the local prosecutor, and then finding a magistrate to submit the package to for approval. It's a hassle.
But it's a hassle the Constitution imposes, if your investigation has led you to a residence, garage, barn, outbuilding, warehouse, office, storage locker, package, vehicle, boat, or other place protected by the Fourth Amendment. The constitutional protection "against unreasonable searches and seizures" has been interpreted by the U.S. Supreme Court to mean that a search warrant is necessary to make searches and seizures "reasonable" unless the circumstances justify application of one or more of the recognized exceptions. (Katz v. U.S.)
Because warrantless searches and seizures are presumed to be unreasonable, the general rule-of-thumb is to try to get a warrant whenever possible. On the other hand, if you can seize evidence without engaging in a search, you don't need either a warrant or any exception. Therefore, the initial inquiry in determining whether you need a search warrant is whether you can seize the evidence without making a "search."
Is There a Search?
Not every acquisition of evidence involves a "search" as the Supreme Court has defined the term. The court has said that a Fourth Amendment "search" is a governmental infringement of a legitimate expectation of privacy. (U.S. v. Jacobsen) In situations where it would be unreasonable for a person to expect privacy, there is no "search" to justify, so no warrant is needed. The primary examples of search-less seizures are these: Plain View. If you're in a place where you have a right to be, you can seize recognizable contraband or evidence in plain sight, without a warrant. (Horton v. California) However, even if displayed in plain view, materials protected by the First Amendment (books, magazines, tapes, movies, etc.) should not be seized until a judicial officer has made a determination that they are seizable. (Fort Wayne Books v. Indiana)
Plain Smell. Where either a trained officer or a trained K-9 detects the telltale odor of narcotics or other contraband by simply smelling a container or compartment exposed to lawful police access, the item can be seized and searched without a warrant. (Illinois v. Caballes)
Plain Feel. Assuming you have a right to touch an area (such as during a justified weapons frisk of a detainee's outer clothing), contraband that is immediately recognizable upon first touch can be seized. (Minnesota v. Dickerson)
Plain Shape. Some distinctive packages (gun case, meth bindle, etc.) betray their contents by their outward appearance and can support no legitimate expectation of privacy, so there is no "search" when they are opened. (Texas v. Brown)
Plain Hearing. No search warrant is needed to overhear incriminating conversations carried on where they might be overheard by members of the public or law enforcement officers. (Hoffa v. U.S.)
Open Fields. Evidence that is growing or stored in open fields is subject to police observation and warrantless seizure. (Oliver v. U.S.)
Abandoned Property. What a person has knowingly discarded can no longer enjoy a reasonable expectation of privacy. Accessible trash receptacles and discarded containers or items can be examined without a warrant. (California v. Greenwood)
Private-Party Revelations. If private individuals not acting as government agents discover contraband or evidence and turn it over to police, the owner's expectation of privacy has already been compromised (example: parcel shipper opens suspicious package, finds drugs, and delivers the opened package to police). (U.S. v. Jacobsen)
Controlled Delivery. No warrant is needed to reopen a container that you lawfully know contains contraband or evidence, merely because you arrange for the container to be delivered to the addressee so as to catch him in possession of it (unless the container is unobservable long enough for the suspect to remove its contents). (Illinois v. Andreas) If the container is allowed to be taken inside private premises, a warrant or some exception would be required to make entry to recover it.
Exposed Characteristics. There is no "search" when exemplars are taken from a person in lawful custody, such as fingerprints (Davis v. Mississippi), mug shots (U.S. v. Crews), handwriting samples (U.S. v. Euge), or voice samples. (U.S. v. Dionisio)
Two Search Warrant Prerequisites
Before deciding whether you need to get a warrant to make an entry or search, it's necessary to determine whether you could get one. You can obtain a warrant only if you have both probable cause and an opportunity to obtain a warrant.
Probable cause requires a reliable showing of a "fair probability" the target location contains contraband or the fruits, instrumentalities, or evidence of a crime. (Illinois v. Gates) If you don't have PC, there can be no nonconsensual search in most cases, whether with or without a warrant. So your next inquiry is, "Do I have PC for a search?"
If There is No PC...
When you have reasons to suspect that a search would disclose some evidence but those reasons don't amount to PC, there may be other ways to conduct a constitutional entry and search: Consent . "In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence." (Schneckloth v. Bustamonte)
Probation or Parole Term. In many jurisdictions, probationers and parolees are subject to a term of warrantless, suspicionless searches and seizures. This may provide a lawful basis for entry and search. (Samson v. California)
Incident to Arrest. At or near the time and place of arrest, you may search the arrested person. (U.S. v. Robinson) If the arrestee was the recent occupant of a vehicle, the passenger compartment of the vehicle may be searched. (Thornton v. U.S.) Where the arrest takes place within premises lawfully entered, you may search the area within the arrestee's immediate control (Chimel v. California), and look into immediately adjoining spaces where potential assailants might be. (Maryland v. Buie)
Officer Safety. You may make a weapons frisk of a detainee when there is articulable suspicion he is armed and dangerous (Terry v. Ohio), a safety sweep of lawfully entered premises with articulable suspicion an assailant may be present (Maryland v. Buie), and a routine shakedown of jail or prison cells. (Block v. Rutherford)
Booking Search. Once a prisoner is lawfully in custody at a police station or jail, he and his property can be thoroughly searched for administrative and security purposes. (Illinois v. Lafayette)
Inventory. A lawfully impounded vehicle and its contents can be inventoried according to standard procedure. (Colorado v. Bertine)
If There is No Time...
Assuming there is PC for a search, the next inquiry is, "Do I have time to get a warrant?" The Supreme Court has recognized that in exigent situations, the fact that you don't have time to get a warrant will excuse the warrant requirement to the extent of allowing immediate entry or search to neutralize the exigency. (Mincey v. Arizona) The following exigencies have been recognized: Rescue. If someone inside premises is in need of immediate help, or if a suspect or his property must be searched to reveal the location of a kidnap victim in distress, you may take necessary steps to neutralize the exigency without waiting for a warrant. (Brigham City v. Stuart)
Imminent Substantial Property Damage. No warrant is needed before activities aimed at countering an immediate threat to property, such as a fire or a burglary in progress. (Michigan v. Tyler)
Imminent Destruction of Evidence. Warrantless entry and search for destructible evidence are constitutional if occupants are aware of law enforcement knowledge of it and are likely to dispose of it quickly. (Ker v. California) This same rationale allows warrantless seizure of "evanescent evidence" (such as blood-alcohol samples) based on probable cause. (Schmerber v. California)
Fresh Pursuit. When the suspect in a recent crime of violence flees from police apprehension and seeks refuge inside private premises, there is no need to interrupt continuous pursuit to seek a warrant. (Warden v. Hayden)
Preventing Escape. If you lawfully attempt a detention or arrest in public and the person retreats into private premises, you may enter and search for him to complete the arrest. (U.S. v. Santana)
Public Safety Threat. No warrant is needed when immediate action is required to protect public safety (bomb threats, hazmat, mass shootings, etc.) (Cady v. Dombrowski)
Whichever exigency permits initial warrantless entry and search, your activity is limited to steps to neutralize the exigency. Once the exigency ends, any further search must be by warrant, consent, or some other exception. (Michigan v. Clifford)
With PC and time...
One recognized exception to the warrant requirement relates to "fleeting targets," such as cars, vans, trucks, buses, RVs, boats, planes, and trains. (California v. Carney) Because of their inherent mobility and diminished expectation of privacy, the court has dispensed with the warrant requirement for fleeting targets. Assuming lawful access, you may search any part of a fleeting target that you have PC to believe conceals something seizable. (U.S. v. Ross) A "fleeting targets" search requires no warrant, even though the vehicle is in exclusive police custody and there is ample opportunity to obtain a warrant. (Michigan v. Thomas)
For any search, whether of a house, a car, or a container, if you have probable cause and time to get a warrant, it's a good idea to seek one. Even though one of the exceptions might apply, you will generally reduce the risks of both suppression of evidence and civil liability if your entry and search are judicially authorized. And if there is no identifiable exception, there is no lawful way to conduct a search except with a warrantwhich brings us back to the rule-of-thumb: try to get a warrant whenever possible.
Devallis reviews and offers analysis of US Supreme Court cases and other significant judicial decisions to the District Attorneys office, and has authored amicus briefs in 10 US Supreme Court cases. He is also the author of 11 criminal justice books, more than 100 published articles, and more than 1000 training bulletins.
Why is a lawyer explaining to police readers when they need tonget sear h warrant “disturbing”
Don’t you think it is a good thing when the police know when the constitution demands a warrant?
“You have to reign in your natural hunter’s instinct”
The very first phrase jumped out of the monitor and slapped me in the face! That is an automatic admission of guilt, isn’t it!?
Because of all the exceptions.
Recruits come out of high school and the military, generally. They have no idea of the Constitution or what it means. They know what they have seen on TV and what the Capt. or Col. told them what to do. I have taught recruits and CJ students for a number of years and they have been ASTOUNDED that I preach PEACE OFFICER to them. Many have said “ MY Chief ain’t gonna like this” I said he will when he doesn’t get charged.
That is an automatic admission of guilt, isnt it!?..Not necessarily. A good cop is never where he is supposed to be (by rules, regs. whatever), such as ‘ Don’t go into dark alleys by yourself’ but guess what? That IS where you find crap happening instead of cleaning up post-crime.
Actually, this seems like a well-thought-out set of legal guidelines to police officers, all based on cited case law. I see nothing to object to here. It would be great if all officers knew these guidelines.
Law & Order was always great at exposing questionable searches. In every episode some evidence was excluded by the judge making the DA’s job a lot harder.
You only need a search warrant if you don’t play golf with a compliant judge, or your Chief is one of the few who doesn’t envision a political career after retirement from the force.
Otherwise, it’s strictly optional.
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Of possible interest.
Thats not the police’s fault...judges make the exceptions.
This is a very timely posting for me.
Background: this is in Central California. I have my contractor stepson and his sons renovating one of my rental properties, the back house of two I own on a single lot. The stepson and his seventeen year old younger son have been staying there overnight to maximize work and minimize gas and travel. His older son would join them on work from time to time when he was not needed at his regular work.
This Saturday afternoon, the three had been taking a short break from work, playing “stickball” in front of the house, and had just separated to go back to work when police burst through the gate from the backyard of the front house, guns drawn! His older son was around the corner of the house, and came rapidly back around to find a gun pointed at him. . . and ordered down, and then handcuffed.
“What’s going on?” My stepson demanded. “Why are you here?”
“Were you shooting a gun? A ‘BB’ gun? The big black cop demanded from my stepson, still holding a gun on them. “What are you doing here?”
“No!” My stepson, protested! “We weren’t shooting a gun! Take those handcuffs off my kid! We don’t have a gun! “
Meanwhile, the handcuffed son is yelling about his Rights are being abused, why he was being arrested, demanding they read him his rights. . .
“We have a report you were shooting cats with a ‘BB’ gun,” the bigger officer claimed. “What are you doing here?”
“We’re renovating the house. We don’t have a gun!”
“Where is the gun? Are you the owner? The cop asked.
“We don’t have a gun!” My stepson countered. “And, no, I don’t own it, my step-dad does. This is private property! We’re staying here and working getting it ready for a new. . . “
The second cop opened the security door on the front of my house, where my stepson and his son were staying with my permission, and walked in, without permission, and proceeded to SEARCH the house for the non-existent gun!
“What’s he doing??? My stepson yelled. “He can’t go in there!”
“He’s looking for the gun. Do you have nail guns?” The cop asked looking at the compressor and other tools in the garage. “How about the kind that shoot nails into concrete with .22 blanks. . . real bullets like. . . from close up?”
“He doesn’t have my permission to go in there!”
“You aren’t the owner, and we don’t need it, there’s a gun involved.”
“What?! You said a ‘BB’ gun which doesn’t exist! And I’m staying here!” Stepson says. “I told you ‘there’s no gun!’ Yeah! I’ve got concrete nail guns, but we’re not using them today. . . and regular nail guns We’ve done nothing wrong! Get the handcuffs off my son! “
“We could haul all of you to jail right now for obstructing our investigation! Especially your noisy son.” Apparently, according to my stepson, his older son was getting insulting to the cops, which was winning none of them any friends. My stepson told his son to cool it and apologize. He did. The cuffs came off. The cops eventually left.
My stepson was convinced the tenant in the front house, with whom he doesn’t get along, had called the police. However, she had called me to tell me that she had just come home to find a police car in her driveway and police in her backyard, who told her someone had called in HER address as the location where someone was shooting cats with a “BB” gun!
I think, with the predilections of the police these days, my crew were lucky the police didn’t respond to the ‘BB’ gun report with a full SWAT team, helicopters, and snipers!
I am really angry about the illegal search of my property with such a feeble justification. A ‘BB GUN?’ Shooting cats? You arrive and find an active construction zone with dust covered workers, but still assume a gun? This is the paranoid police state culture our Liberals in charge have created. I have a non-urgent call in to my staff attorney to discuss what are the actions I can take. I believe my stepson’s family’s civil rights were trampled and abused in their police encounter. Thank God their German Shepherd was at home. . . and no one was carrying an ominous looking tool in his hand.
I see nothing in the article citing or even Implying the police have authority to search domiciles in the vicinity of a detention. . . regardless of what kind of call it is.
What is really disturbing is how little need there is for warrants at all these days given how incredibly easy it is for police to simply lie to convert the situation to an “exigent circumstance”.
I’d be willing to bet that the vast majority of searches made these days are warrantless. This nation ceased to be a Constitutional Republic ages ago.
First, I am not a lawyer but from my laymen’s understanding...
If your stepson or his sons did not give consent to search, you should file a civil rights complaint against the officers involved and the department.
They must then explain their reason for probable cause. A report of suspicious activity is not enough for probable cause.
So that explains the Boston police going door to door, in some cases breaking them down, forcing the residents out at gunpoint, hands in the air...
As a summary, when martial law is declared, there will be no need for that pesky "Constitution" stuff anymore.
All you are belong to US!