Exceptions to the fourth amendment warrant requirement

What are the exceptions to the Fourth Amendment warrant requirement?

You may already know that, if the police search your person, house, or vehicle without a warrant, any evidence they find will be excluded in court – they won’t be able to use it against you.

But did you know that, in many cases, police aren’t required to get a warrant before searching? When law enforcement can identify one of the many exceptions to the search warrant requirement, 1) they are not required to get a warrant, and 2) any evidence they find can be used against you in court…

In this article, we will provide an overview of the exceptions to the Fourth Amendment warrant requirement and the effect that this might have on your case, including:

• A brief description of the most common exceptions to the Fourth Amendment warrant requirement,
• Why it matters – how the exclusionary rule could affect your case, and
• How law enforcement officers are trained to use the Fourth Amendment exceptions to search your home or vehicle without a warrant.

Table of Contents

WHAT ARE THE EXCEPTIONS TO THE FOURTH AMENDMENT WARRANT REQUIREMENT?

Despite what you may have heard, the Fourth Amendment to the US Constitution does not say that police must get a warrant before searching you or your home.

It does say that any searches or seizures by the government must be reasonable, and, if a warrant is issued, it must be based on probable cause, and it must be specific about where the police will search and what they are authorized to seize:

Amendment IV

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.

Article I, Section 10 of the SC Constitution contains a similar clause, with the added provision that the government will not unreasonably invade a person’s privacy:

SECTION 10.

Searches and seizures; invasions of privacy.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy 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, the person or thing to be seized, and the information to be obtained.

The courts have interpreted this as a requirement that 1) law enforcement have probable cause (or, in some cases, a reasonable suspicion) before searching or seizing a person, vehicle, or other property, and 2) law enforcement must get a warrant based on probable cause before searching or seizing a person, vehicle, or other property unless one of the many exceptions apply.

Even when an exception applies, the defendant can usually later challenge the search or seizure based on a lack of probable cause (or reasonable suspicion, depending on the circumstances) in court.

What are the Exceptions?

The exceptions to the Fourth Amendment warrant requirement include:

• Consent: Police will almost always begin a search by asking for consent because there is usually no need for a warrant if you or the owner of the property permit them to search.
• The automobile exception: Despite what you may have seen in YouTube videos, police do not need a warrant to search your vehicle during a traffic stop (if it is parked in the driveway that may be different), although they are required to have probable cause (or reasonable suspicion, depending on the circumstances).
• Search incident to arrest: When police are arresting someone, they do not need a warrant or additional probable cause to search the person or the immediate area around the person, because the person must be searched anyway.
• Inventory exception: When a vehicle is going to be towed following an arrest, police do not need a warrant to search the vehicle, because it is going to be searched and inventoried anyway.
• Inevitable discovery: As with search incident to arrest and the inventory exception, police do not need a warrant when the discovery of the evidence would have been inevitable whether the police got a search warrant or not.
• Plain view: If the police see contraband or other evidence of a crime in “plain view,” they do not need a search warrant to seize the evidence.
• Plain feel: If a police officer feels something that is obviously contraband during a pat-down or “Terry frisk,” they do not need a warrant to seize the contraband.
• Terry frisk/ Terry search: When law enforcement has a “reasonable suspicion” that a person is armed and dangerous or that “crime is afoot,” they do not need a warrant or probable cause to “frisk” the person, do a “pat down” searching for weapons, or search the interior of a vehicle where weapons could be found.
• Hot pursuit: Depending on the circumstances, police may not need a warrant to enter a home if they are actively pursuing a suspect.
• Exigent circumstances: Police are not required to get a warrant when there are “exigent circumstances” that would make it impracticable to get a warrant – for example when a suspect is likely to destroy evidence, escape, hurt someone, or present a danger to law enforcement officers.
• Protective sweep: When police make an arrest, they are allowed to make a protective sweep of the location to ensure there are no other individuals present who may present a threat to the officers.
• Open fields: Police can fly over a person’s property and look for evidence of contraband in “open fields” even when it is located on private property.
• Abandonment: If a person has abandoned their property, law enforcement can seize that property and search it (for example, a cell phone inadvertently left at a crime scene).
• Special needs exceptions: When the government’s interest in searching is more important than the individual’s interest in privacy (according to the court), the government does not need probable cause, although they may still be required to identify a reasonable suspicion.

• Searches of probationers or parolees,
• School searches,
• Administrative searches (including arson investigations after a structure fire or DHEC inspections of restaurants),
• Sobriety checkpoints (although there may be other requirements for a DUI checkpoint),
• Border patrol checkpoints,
• Border searches including at airports, and
• Foreign intelligence surveillance of foreign agents (and the Americans talking to foreign agents).

WHY DOES IT MATTER? HOW POLICE GET AROUND THE EXCLUSIONARY RULE…

The exceptions “swallowed the rule” long ago. This matters because, if the police violate your Fourth Amendment rights during a search or seizure, the remedy is the exclusion of any evidence found under the exclusionary rule and the exclusion of any later evidence that would not have been discovered but for the Fourth Amendment, as “fruit of the poisonous tree.”

Law enforcement – and narcotics officers in particular – receive training on the Fourth Amendment exceptions and when they apply. Not so they can protect your rights during searches, but so they can get around the search warrant requirements and make arrests without the inconvenience of seeking a warrant.

How does that work?

Depending on the circumstances, a police officer who understands the many search warrant exceptions and how they can be used in conjunction with other exceptions can easily get around the search warrant requirements.

For example, let’s consider how police could get into a person’s home, search it, and make an arrest without a warrant or even probable cause:

• Police suspect a person is selling drugs or has drugs in their apartment, but they do not have an informant or other evidence that rises to probable cause.
• The officers conduct a “knock and talk,” knocking on the front door and asking the resident if they wouldn’t mind chatting for a minute.
• They ask the resident for consent to step inside and have a look around – if the resident agrees, there is no further need for a warrant.
• If the resident says “no,” and the officer sees contraband through the door or an open window, they can now enter the apartment and seize the contraband under the plain view exception and possibly the exigent circumstances exception if it is drugs or other contraband that could be destroyed.
• Once inside the apartment, the officers conduct a pat down of the resident to look for weapons and seize additional drugs that were in the resident’s pocket under the “plain feel” exception.
• They are making an arrest now, and they are permitted to make a “protective sweep” of the apartment for their safety.
• While conducting the protective sweep, they see more drugs and paraphernalia in a bedroom, which they seize under the plain view exception.
• At this point, the police will most likely 1) seize the contraband without a warrant, 2) arrest the resident without a warrant, and 3) go to a magistrate and seek a warrant based on the evidence they have already seized without a warrant, and then conduct a more thorough search of the apartment for additional contraband or evidence.

GOT AXELROD?

If you have been charged with a crime based on an illegal search and seizure, get an experienced criminal defense attorney on your case immediately. We will investigate your case, get your case dismissed, negotiate an outcome that is acceptable to you, or try your case to a jury.

Call Axelrod & Associates now at 843-916-9300 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.