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PATROL

Search Warrant Exceptions February 1, 2007 • by Devallis Rutledge •

The requirement of the Fourth Amendment is that all searches be "reasonable." The

Supreme Court has ruled that warrantless searches are presumed to be unreasonable,

"subject only to a few speci�cally established and well-delineated exceptions." (Katz v.

U.S.) That means that unless you are searching under authority of a judicial warrant, you

are presumed to be violating the Fourth Amendment.

To rebut this presumption and avoid both civil liability and suppression of evidence, you

have the burden of establishing that your warrantless search was justi�ed under one or

more of the recognized exceptions, including the following.

Consent

Consent searches are reasonable provided consent is given by someone who appears to

have authority to do so and if it is given voluntarily. (Schneckloth v. Bustamonte) A person

usually has authority to consent to a search of any place to which he or she has a lawful

right of access. There are exceptions, however.

Even though hotel and motel employees have a right of access into rented rooms for

housekeeping and maintenance, they do not have the right to enter and search for

criminal evidence. Therefore, they cannot give e�ective consent for police entry and

search during the term of paid occupancy. (Stoner v. California; U.S. v. Je�ers)

Parents can generally consent to a search of their minor children's property, but young

children cannot allow a search of their parents' property. One spouse or co-tenant can

allow entry and search during the other's absence, but not if the other is present and

objecting. (Georgia v. Randolph) Even a person who actually has no right of access but

reasonably appears to police to have authority to admit them can give e�ective consent.

(Illinois v. Rodriguez-o�cers had no way of knowing that the "girlfriend" with a key no

longer lived with the defendant.)

Consent is voluntary if police have not used any force or threats to coerce it. O�cers

cannot falsely assert that they have a search warrant or threaten to arrest a person for

refusing to consent. (Bumper v. North Carolina) Voluntary consent can be obtained from

a person in custody (U.S. v. Watson), and the person need not be told that he or she has a

right to refuse consent. (Robinette v. Ohio; U.S. v. Drayton) An o�cer does not have to

have any suspicion of wrongdoing in order to request consent. (Florida v. Bostick)

A person who consents to a search can limit the scope of search (Example: "You can

search inside the car, but not the trunk.") If there is no other justi�cation for searching,

the o�cer must limit the search to the designated scope. The consenter may also revoke

consent at will, and the search must end, absent some other justi�cation. (Florida v.

Jimeno)

Incident to Arrest

When you make a lawful, custodial arrest, you may make a contemporaneous search of

the person, clothing, and e�ects of the arrested person (such as purses, backpacks, du�el

bags, shopping bags, etc.). (U.S. v. Robinson) This is not merely a weapons pat-down, but

a full search, including containers found in the pockets, etc. (U.S. v. Gustafson)

To be "contemporaneous," the search must take place at or near the time and place of

the arrest and cannot be delayed or performed at another location. (Dyke v. Taylor)

However, a search can be "incident" to an arrest even if it occurs before the person is

actually placed under arrest, as long as you had PC to arrest before searching. (Rawlings

v. Kentucky) To be "custodial," the arrest must be accomplished by taking physical

custody and transporting the person away. A temporary detention followed by a release

on a written citation does not justify a search. (Knowles v. Iowa)

This exception also allows a search of all compartments and containers in the passenger

area of a vehicle the arrestee recently occupied. (Thornton v. U.S.) If the arrest takes place

inside a residence you lawfully entered, the scope of search extends to places where the

arrestee could reach or lunge (Chimel v. California), and also allows a peek into

immediately adjoining rooms and spaces that could conceal a potential assailant.

(Maryland v. Buie)

Fleeting Targets

Inherently mobile devices, including cars, trucks, buses, RVs, airplanes, trains, and water-

going vessels, are "�eeting targets" for a search, because they can be easily moved out of

the jurisdiction while a warrant is being sought. They are also subject to pervasive

regulation. For these reasons, the court has held that vehicles have a diminished

expectation of privacy that allows warrantless searches based on two things: probable

cause to believe they contain something seizable and lawful access to the place where

they are found. (Chambers v. Maroney)

If a vehicle is inside a garage or other structure that you cannot lawfully enter, a warrant

must be obtained. However, if you have PC to search a vehicle found on a highway, street,

driveway, carport, parking lot, tow yard, or other area lawfully accessible to police, you

may search any part of the vehicle and its contents and containers that might conceal the

object of your search. (California v. Acevedo) This search can occur even though you have

had exclusive custody of the vehicle for several days and had plenty of time to obtain a

warrant. (U.S. v. Johns; Florida v. Meyers)

O�cer Safety

Limited search activities can be justi�ed in the interest of o�cer safety. For example, you

may order out the driver and all passengers at a lawful tra�c stop, without any reason or

suspicion. (Pennsylvania v. Mimms; Maryland v. Wilson) If you have a reasonable

suspicion that a person is armed and dangerous, you may conduct a pat-down search of

the outer clothing for weapons. When lawfully inside a residence and with articulable

suspicion that an assailant may be present, you may conduct a "safety sweep" of the

premises. (Maryland v. Buie)

Booking Search and Inventory

The property worn or carried by a lawfully arrested person may be thoroughly examined

at the place of detention. (Illinois v. Lafayette) After clothing and possessions are taken

from an arrestee and held in the property locker, they are still subject to warrantless

search. (U.S. v. Edwards)

If (and only if) the department has a standardized policy that directs o�cers to open and

inventory the contents of lawfully seized vehicles for safety and accounting purposes, you

may do so. (Colorado v. Bertine; Florida v. Wells)

Special Needs

The court has identi�ed several "special needs" exceptions that do not �t into other

categories. These include probation and parole searches, school searches, searches of

highly regulated businesses (such as �rearms dealers, pawn shops, and junkyards),

employment and educational drug screening, and the immediate search for "evanescent"

evidence (such as blood-alcohol content).

Practice Reminders

The facts surrounding any search should be examined to see how many ways it can be

justi�ed, rather than resting on a single theory. (Devenpeck v. Alford) Also, state

restrictions may limit your ability to search under U.S. Supreme Court rules. Remember,

the safest course for any search is to seek a search warrant, whenever practicable.

Devallis Rutledge, a former police o�cer and veteran prosecutor, is Special Counsel to the Los

Angeles County District Attorney.

SEARCH WARRANT EXCEPTIONS

- Consent Search

- Search Incident to Arrest

- Fleeting Targets Search

- O�cer Safety Search

- Booking Search

- Inventory

- Special Needs Searches