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Warrantless Search & Seizure

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Warrantless Search & Seizure

Criminal Procedure/CJA364
July 11, 2013
Russell Galbreath, MPA
Warrantless Search & Seizure
Navigating the Fourth Amendment and the law of warrantless searches and seizures largely involves case law rather than statutes, and today’s principles are the results of more than 200 years of judicial evolution. The constitution has been the back bone of the United States legal system since it was first written and signed by our founding fathers. This document has been the topic of many debates and has gone through many changes and clarifications throughout the years. The Fourth Amendment of the constitution is one of the most debated amendments. Search Warrants are Generally Required

Search warrants require probable cause, oath or affirmation, and a particular description of the place and object of the search to meet constitutional requirements. A judge may issue a search warrant only after reviewing a sworn statement of facts showing probable cause to search a particular place for particular items. The standard for probable cause is objective, meaning that there is sufficient information to persuade a reasonable person that a certain place contains evidence of a crime. A search warrant consists of the warrant itself and a sworn affidavit of facts supporting the request. Exceptions to the Search Warrant Rule

With the understanding that police officers need a warrant to search for information that can be related to criminal activity by an individual, most people feel as this is the only way an police officer can search you or your property. They know that according to the exclusionary rule, evidence gained in an illegal search cannot be used to convict them of a crime. However, there are several circumstances the police do not need a warrant for a search, or for the evidence found from that search, to be able to use in court. Those exceptions to that rule are Search Incident to a Lawful Arrest, Hot Pursuit of a Fleeing Felon, Imminent Destruction of Evidence, The Plain View Doctrine, The Automobile Exception, Inventory Searches, Stop and Frisk, and Consent Searches. Each one has their own special exception.

Searches Pursuit to a Lawful Arrest
A police officer can search the area within immediate reach of the person inside their home but could not search the entire home without a search warrant. This is called searches pursuit to a lawful arrest. This was made famous by the Chimel v. California case in which it is known as the arm’s reach or wingspread case. In 1965, three police officers in Santa Ana, California, armed with an arrest warrant, went to Ted Chimel’s home to arrest him for burglarizing a coin shop. Mrs. Chimel invited them in and they waited about ten minutes for Chimel to arrive. When he did, he was arrested. He then objected to the officers’ request to “look around.” They did not have a search warrant. The entire home was searched anyway, including the attic, garage, workshop, and his upstairs bedroom dresser drawers. Some of the stolen coins were found during that search.

The police seized them and other items. It was argued that this was a search incident to a lawful arrest. This exception to the warrant requirement, as are most, was intended to protect arresting officers—and to prevent the destruction of evidence on the arrested person’s body, or within his reach. However, the right to search, incident to a lawful arrest, is limited to its purpose. That purpose is, once again, to protect the arresting officer and any evidence of that crime that is on or near the subject. Along with that authority, goes the right to search the area within the arrested person’s reach, where he might get a weapon or destroy the nearby evidence (Waksman & Goodman, 2010).

Searches during “Hot Pursuit” of Fleeing Suspect(s)
If a fleeing suspect enters private property while being followed by police officers, no warrant is required to go in that property in order to pursuit, even if the suspect is in no way associated with the owner. Warden v. Hayden is an example of the hot pursuit exceptions to the Search Warrant Rule.

The case involved the armed robbery of the Diamond Cab Company in Baltimore, Maryland. The robbery occurred on St. Patrick’s Day, 1962. Two passing taxi drivers, hearing the shouts of Holdup, followed the robber to a nearby house. The police were given that information, as well as a description of the robber and his clothing. Within minutes, a number of patrol cars arrived. The officers told the lady who answered the door that they believed a robber had entered her house. They asked her for permission to search. She did not object.16 Several officers went through all three floors of the house. Bennie Hayden was found feigning sleep in an upstairs bedroom. When officers on the other two floors announced that no other man was in the house, Hayden was arrested. Another officer heard a toilet running. In the tank he found two weapons. A third officer found the described clothing in a washing machine. Another officer found a clip of ammunition for one of the weapons and a cap fitting the description the robber wore under the mattress of the bed Hayden was in. The ammo for the second weapon was found in the bureau drawer in that same room (Waksman & Goodman, 2010). Searches to Prevent Imminent Destruction of Evidence

Prevent imminent destruction of evidence rule was used in Schmerber v. California, 384 U.S. 757 (1966). In that case, Schmerber was arrested for Driving under the Influence. He had sustained an injury that occurred in car accident, he was unable submit to a breath test. Blood was drawn upon the arresting officer request to get the alcohol percentage. The blood, and the corresponding percentage of alcohol in it, was admitted into evidence at his trial (Waksman & Goodman, 2010). According to Justice William Brennan the reason the blood and its results were allowed in the evidence are because that the alcohol in a person’s blood begins to diminish shortly after the drinking stops, as the body functions to eliminate it. Searches Using the Plain View Doctrine

The plain view doctrine has caused so much controversy as well as brought some guilty individuals to justice. The plain view doctrine is not in conflict with that of the first objective because usually plain view does not occur until there is a search in progress. The plain view doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable. If an officers observation of an item that is possibly or potential presumed illegal is left in plain view generally does not constitute a search under the Fourth Amendment. However, a courts opinion that traditional Fourth Amendment doctrine does not apply to searches of computers because of their ability to store a massive amount of data including personal information (“Plain View Doctrine”, 2010). The applicability of the plain view doctrine will be considerably restricted. Searches of Vehicles & Inventory Searches

The South Dakota v. Opperman case was valid under the Fourth and the Fourteen Amendment under the search conducted. The central purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. While I join the opinion of the court’s decision regarding the case of South Dakota v. Opperman, there are two questions that require answers that were not clear. During the search the questions arose, whether it was a routine inventory searches are impermissible and if not, whether they must be conducted pursuant to a warrant.

During a search of a vehicle or an inventory search the process is still the same, safety of the community and safety for the officer and in some rare cases safety for the driver or owner of the vehicle if the individual is unable to care for the vehicle after the stop or search due to arrest or injury. In the case of South Dakota v. Opperman it falls within the guidelines of the plain view doctrine. During the time of the search inventory the officer saw drugs and a gun in the glove box. According to “The Search and Seizure Handbook (3rd Ed.) “ (2010), the plain view doctrine is what was used due to the securing of valuables during the time of the inventory and the officer saw some drugs next to the spare and found an illegal gun in the glove box. Stop & Frisk

In the case of Terry v. Ohio, the officer had reasonable suspicion due to the line of work and the countless experience and observation that he had put into on a daily bases. The suspicion arose when the officer noticed two men pacing in front of a store and looking into the window and then meeting on a corner after each pass by. The officer after witnessing this behavior for a while followed the two men about block away were they met up with a third man. The officer approached the three men, identified himself as a police officer and asked for their names. At this point his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by sight, and he had received no information concerning them from any other source.

When the men ‘mumbled something’ in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry’s overcoat, Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker’s store. As they went in, he removed Terry’s overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz (Waksman & Goodman, 2010). This is now known as the Terry stop.

Consent Searches
Consent searches are the bulk of the case law that is very touch when it comes to an individual’s personal property or personal belongs or even to a person itself. The question arises as to whether if a person is very corporative with law enforcement personnel does that constitute as a valid consent search? The answer is yes, if one volunteers to a search then that is in fact consent to conduct the search. A refusal of a search can happen, but if there is reasonable suspicion like discussed in the above mentioned and or probable cause to conduct the search, the search is going to take place regardless if it was refused by that individual or not. Schneckloth v. Bustamonte case is one that exemplify consent search. In this particular case it consent was voluntarily given and the (federal) Court of Appeals for the Ninth Circuit concluded that it is an essential part of the State’s initial burden to prove that a person knows he has a right to refuse consent (Waksman & Goodman, 2010). Conclusion

There are always exceptions to the rules. Some might even say rules are made to be bended not broken. The exceptions to the search warrant rule is
usually a case by case base and most of the time there is no case law for them. Warrantless searches and seizures are in fact legal and can be done according to the various cases.


Waksman, D. M., & Goodman, D. J. (2010). The Search and Seizure Handbook (3rd ed.). Upper Saddles River, NJ: Prentice Hall

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