Criminal Procedure

Emanuel Law Outline

Arrest; Probable Cause; Search Warrants

General Principals:

 If a warrant is used, the Amendment requires that it not be issued unless there is
“probable cause”; whether or not there is a warrant, the Amendment requires that the
arrest or search not be “unreasonable.”

 Law enforcement officials in question must have trustworthy evidence that would make a
reasonable person think it more likely than not that the proposed arrest or search is
justified.

 Case law requires that probable cause be present in a warrantless case.

Probable Cause:

 Probable cause to arrest: For there to be probable cause to arrest a person, it must be
more likely than not that a violation of the law has been committed and that the
person to be arrested committed the violation.

 Probable cause to search: For there to be probable cause to search, it must be more than
likely than not that the specific items to be searched for are connected with criminal
activities and that these items will be found in the place to be searched.

 Probable Cause to Arrest: To arrest a person two conclusions must be supported by the
evidence: 1) that a violation of the law has been committed; and 2) that the person to be
arrested committed the violation.

 Probable Cause to Search: For there to be probable cause to search the conclusions
must be supported by the evidence are: 1) that the specific items to be searched for are
connected with criminal activity; and 2) that these items will be found in the place to be
searched.

 Evidence from Officer’s Own Observations: Probable cause for a search or arrest can
be established from the officer’s own personal knowledge. Some of these are:

a. flight of a suspect when approached;

b. physical clues (shoe prints, finger prints);
c. voluntary admissions by suspect;
d. suspicious or surreptitious conduct;
e. a suspect’s previous criminal record;
f. suspect’s presence in a high crime area.

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Warrants:

 Issuance must be judged on the facts presented to the magistrate. Thus, if the police do
not present evidence sufficient to establish P/C but the warrant is issued and is later
challenged in a suppression hearing, the warrant cannot be retroactively validated by
police testimony that they had other facts not presented to the magistrate.

The Magistrate forces the police to put on record the state of their information before the
search or arrest; They are prevented from conducting a search without probable cause,
discovering new evidence during the search, and asserting at the suppression hearing that
they knew these facts all along.

Test:
1) Magistrate must be a neutral party detached from the law enforcement side of
government.

- A magistrate that actively participates in the search is not neutral and detached
– Lo-Ji Sales, Inc. v. New York

2) The officer seeking a search warrant must put the facts establishing probable cause
into a written, signed, affidavit.

- Particular description – particularly describe the place to be searched, and the

things to be seized, the affidavit should contain this information
- The information in the affidavit must be sufficiently recent to allow the
magistrate to reasonably believe that the items have not yet been removed
from the premises to be searched

3) Requires that a warrant contain a particular description of the premises to be searched,

and the things to be seized. (Warrant needs to be specific enough that the officer
executing it even if he had no initial connection with the case would know where to
search and what items to be seized)

- Places to be searched: Must be precise enough that the officer executing the
warrant can ascertain, perhaps even by asking questions of people in the
neighborhood, where he should search
- Things to be seized: must be specifically identified in the warrant. Contraband
does not have to be described as particularly as material which is innocuous
on its face and sought only because of its connection with a particular crime.
The executing officer will be able to identify contraband, non-contraband
connected with a crime may be similar to other items on the premises that
have no connection with the crime.
- Items that may be seized: instrumentality used to commit a crime, fruits of a
crime, contraband – things prohibited by law,

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  Perjured Affidavit: D may sometimes have a search warrant invalidated on the grounds
that perjured police testimony was used to get it.

D can show by a preponderance of the evidence, that affidavits used to obtain the warrant
contain perjury by the affiant, or a reckless disregard for the truth by him, and the rest of
the affidavit does not contain materials sufficient to constitute probable cause, the
warrant will be invalidated.

However, the D cannot knock out the warrant merely because it contains inaccurate
material; a showing of actual perjury or reckless disregard of the truth, by the affiant
himself (not merely by the affiant’s sources, such as informers) must be made.

A Warrant will not be rendered invalid if it later turns out that the police erroneously (but
reasonably and honestly) believed the information they gave the magistrate.

Entry Without Notice:

 The officer executing a warrant must announce that he is a law enforcement officer, that
he possess a warrant and that he is here to execute it.

This requirement of an announcement derives from the Fourth Amendment’s ban on

unreasonable searches: in many situations, an unannounced, forcible entry will be so
disruptive and frightening to the inhabitants that it will for that reason alone be
unreasonable.

Exceptions: 1) There must be specific indications that the destruction of evidence in the
particular case at hand is imminent. 2) Just as the possibility of destruction of evidence
will sometimes justify unannounced entry, so the possibility of physical danger to the
police may sometimes justify such entry.

Police are not allowed to make a blanket rule that no announcement or knock is necessary
in a particular class of cases – the reasonableness of an unannounced entry must always
be evaluated on the facts of the particular case at hand. (Richards v. Wisconsin)

The police must have a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances would be dangerous or futile, or that it
would inhibit the effective investigation of the crime by destruction of evidence.

Exclusionary Rule usually requires that the fruits of an illegal search or seizure of D be
excluded from D’s criminal trial; as a result of Hudson this general principle does not
apply in the case of evidence seized following a knock and announce violation.

If the occupant is known to be home, and makes no answer, the officer may break in if he
has given the occupant adequate time to respond. The more easily disposed of the
evidence is the less time the police must wait.

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 Searches have not been held unreasonable solely because they were executed by forcible
entry in the absence of the inhabitants.

 Search of a person on premises: If there is probable cause to arrest a person who is on

the premises, the police may do so and then conduct a search incident to arrest. But if
probable cause is lacking, it is only in some circumstances that the police may search
persons present.

Named Items on Person: If the police have probable cause to believe that an individual
has on his person items which are named in the search warrant, they may search him

Person Attempting to Leave: If a person attempts to leave during a search, and items
being sought are of a kind which might easily be carried away, it is probably proper for
the police to temporarily detain him to ensure that he is not carrying them off – Justified
by Terry v. Ohio

Frisk: Police can frisk a person on the scene if they have reason to fear that he may be
dangerous.

**People simply on the premises and appear to have no connection may not be searched.

 Restricted Area of Search: In executing a search pursuant to a warrant, the police must
confine their search to the area specified in the warrant, and they must look only in those
places where the items sought might possibly be concealed.

 Seizure of Unnamed Items: As the police are conducting a search, they may sometimes
come across items which they would like to seize, but which are not listed in the warrant.
Typically courts are liberal as long as it was found in the proper area identified in the
warrant and in plain view.

Must only seize items which are sufficiently connected with criminal activity that a
warrant could have been procured for them.

Items inadvertently discovered do not have to relate to the same criminal activity which
gave rise to the warrant, as long as there is probable cause for the seizure of these new
items. (i.e. if looking for stolen property and come across drugs can seize the drugs)

 Intrusions into the Body: Balance Test: the individual’s interests in privacy and
security are weighted against society’s interests in conducting the procedure.

- Winston – not reasonable to place D under anesthesia to remove bullet since

there was other evidence to tie D to the burglary.
- Taking Blood - is not unreasonable to determine whether driving while
intoxicated

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 - Good Faith – If police reasonably believe that the warrant which they have
been issued is valid, the exclusionary rule will not apply to bar the items
seized from being introduced at the trial of the person whose rights were
violated by the search

Information from Informants:

 Because informants often have an inventive to gain the police’s good graces by
furnishing information of dubious veracity, the courts have generally applied stringent
tests for determining whether an informant’s testimony establishes probable cause.

 Aguilar’s Two Pronged Test: 1) There had to be evidence that the informant was a
reliable witness (he had been reliable in the past/special reasons why his information is
reliable in this case); and 2) There had to be facts showing the basis of knowledge of the
informant, that is the particular means by which he came upon the information which he
supplied to the police.

Issue: 1) so stringent that police might frequently have been resorting to warrantless
searches; and 2) rigid application would greatly diminish the value of anonymous tips
since these will generally fail to pass one and perhaps both prongs.

 Spinelli Test: Aguilar’s Test is treated as being totally independent of each other, so that
each had to be met before probable cause would be established.

 Totality of the Circumstances Test: The issue of whether an informant’s information

creates probable cause for a search or arrest is to be determined by the totality of the
circumstances. (Illinois v. Gates)

Gates overruled the two-prong test of Aguilar/Spinelli. Hence, so long as a neutral

magistrate can reasonably determine that, based on the informant’s information and all
other available facts, there is probable cause to believe that a search or arrest is justified
her may issue the warrant. Holding: Court concluded that there was probable cause for
issuance of the search. The two prongs should be treated as relevant considerations in the
totality of the circumstances analysis that traditionally has guided probable cause
determinations.

The direct consequence of the Gates holding is that a strong showing on one of the
prongs can in effect make up for an inadequate showing on the other one.

Also, corroboration of aspects of the informant’s story may be combined with the story
itself, in determining whether there is probable cause. Typically in cases that 1) the
informant’s identity is not known to the police; and 2) the corroboration is of the future
actions of third parties that are ordinarily not easily predicted.

 Innocent Activity: Non-criminal acts may justify suspicion of criminal activity (case of
couple flying/driving to Florida then back to Chicago)

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  Most courts have presumed that the ordinary citizen that is either a victim/eyewitness is a
reliable informant even though the reliability has not been previously tested.

Random Searches of Groups:

 Ybarra v. Illinois – When the police are properly searching a bar and its bartender for
drugs they do not thereby have probable cause to search each patron on the premises,
because the probable cause to search a person must be “particularized with respect to that
person”

Places Protected:

 Police must generally obtain a search warrant in order to search areas in which the
suspect has a reasonable expectation of privacy. A person has a reasonable expectation
of privacy in a place if two tests are met:

1. The person must show an actual, subjective expectation of privacy in the area; and
2. The expectation must be one which society recognizes as reasonable.

 Katz and the reasonable expectation of privacy doctrine: the Supreme Court rejected the
traditional notion that only private property could be protected by the Fourth
Amendment.

Fourth Amendment applies to any government search or seizure that interferes with a
person’s “reasonable expectation of property” even if there was no interference with
property.

Katz: Electronic eavesdropping device on the outside of a phone booth; Supreme Court
rejected that Katz, by making his call in a public phone booth, waived his REP –
Supreme Court stated that “the Fourth Amendment Protects People, not Places”, so
when an individual seeks to preserve privacy, even an area accessible by the public, it
may be constitutionally protected

Trespassory Intrusions:

 Bond – was a passenger on a Greyhound Bus; when during a check, the government
agent walked up and down checking and squeezing overhead bags; when the agent
checked D’s bag he felt a bricklike object which turned out to be drugs

The Court held that the search violated D’s Fourth Amendment rights because squeezing
the luggage was unreasonable because D did not expect that other individuals would feel
his bag in an exploratory manner and this manner went beyond what D reasonable
expected

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 Significance: Illustrates the significance of a physical intrusion (trespass); Ciraolo (air
space case) and Riley (air space case) are distinguishable because they involved only
visual as opposed to tactile observation. Physically invasive inspection is more
intrusive than purely visual inspection.

 Dunn – Officers trespassed on D’s land to peer into barn; Court held that there was no
REP because the barn was not part of the curtilage

Significance: The fact that there has been a physical intrusion does not automatically
mean that there was a Fourth Amendment search or seizure.

 Curtilage Test: 1) The proximity of the home to the area claimed to be curtilage; 2)
whether the area is included within an enclosure that surrounds the home; 3) the nature of
the uses to which the area is put; and 4) the steps taken by the resident to protect the area
from observation by people passing it.

**Stringent Test – Most outbuildings will fail to meet the requirement of curtilage –
will need to review particular facts for each building

Open Fields:

 Open fields beyond the curtilage are not protected by the Fourth Amendment

 Oliver: Court held that an individual cannot have a REP with respect to an open field he
owns. Curtilage simply does not cover open fields.

Transfer to Third Person:

 The fact that the D has transferred property or information to a third person may indicate
that he no longer has a REP with respect to that property

 Smith: Police installed a pen register that recorded all numbers called by D from his
home phone, but did not monitor the conversations. Court held that one who uses a
phone, even in his home, has no justifiable expectation of privacy with respect to the
numbers being called because the user realizes that they are turning the numbers over to
the telephone company, since the telephone company’s switching equipment is used to
complete the call.
 If a search is performed by a private individual who is not acting as an agent of or with
the participation of the government, there can be no Fourth Amendment violation no
matter how unreasonable the search is.

 Canine Sniff Test: Such sniff tests were held not to constitute Fourth Amendment
searches

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 Place – Court held that a well-trained dog discloses only the presence or absence of
narcotics, a contraband item, the sniff does not compromise any legitimate privacy
interest of the person whose possessions are being sniffed

Caballes – Since D’s car was properly stopped for a traffic violation the use of the police
dog to sniff the outside of the car did not amount to a Fourth Amendment intrusion

Test: If the police use a dog to perform an odor test that merely determines whether
contraband is present or not, no search takes place, because no information about a
legally-possessable substance is being revealed.

 Trash/Abandoned Property: When a person puts the trash out to the curb for the
garbage collector, the police may search that trash without a warrant

Plain View Doctrine:

 Where objects on private property can be seen from public places observation by the
police does not constitute a Fourth Amendment search

 Plain View doctrine can apply where items are discovered through the use of other senses
other than sight

 Warrantless Seizure of Evidence v. Plain View: Mere observation of an object which is

in “plain view” will never constitute a Fourth Amendment “search”. But the fact that an
object is in “plain view” does not automatically give the police the right to seize that
object without a warrant. For the seizure to be proper there must be 1) generally
applicable warrant in for; OR 2) some exception to the warrant requirement.

The Plain View Doctrine itself is not an exception to the warrant requirement, when
seizure of an object is concerned. Plain view provides grounds for seizure of an item
when an officer’s access to the object has some prior justification under the Fourth
Amendment. Plain view is perhaps better understood not as an independent exception to
the warrant clause, but simply as an extension of whatever the prior justification for an
officer’s access to an object may be. (Texas v. Brown)

 Search with warrant: Where the police have obtained a valid search warrant describing
particular items, and during the course of their search they discover an object which is not
covered by the warrant but is obviously contraband or evidence of a crime, they may
seize that object without getting a new warrant specifically covering it.

 No entry without a warrant: If the police while standing on public property see in plain
view an object on private property, this does not entitle them to enter the private property
and seize it. He must get a warrant.

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  Aerial Observation – Assuming that the aircraft is in public, navigable, airspace,
anything the police can see with the naked eye from that airspace falls within the plain
view doctrine.

 Ciraolo – Even though D had built a 10ft privacy fence the overflight did not violate any
REP that society is prepared to honor.
 Riley – Court held that images taken from helicopter at 400 feet about the ground still fell
within the plain view doctrine and was therefore not a search.

 Plain Touch: Minnesota v. Dickerson Court held that where an officer is conducting a
frisk or pat-down pursuant to Terry the officer may seize any object which his sense of
touch gives him probable cause to believe is contraband, a weapon, or some other form of
evidence.

Plain touch will only apply if the officer in fact ad the right to do the touching.

Equivalent to Hicks by squeezing the package is the same as moving the stereo for the
serial number, therefore it is an illegal search because it violates the plain view/plain
touch doctrine

 Plain Odor: U.S. v. Johns Court held that plain view can apply to smell. Court pulled
over a truck an seized parcels that smelled like marijuana

Use of Mechanical Devices:

 Sophisticated devices can still be used if: 1) the view takes place where the police have a
right to be; and 2) information obtained could have been gotten from plain view
surveillance executed without the special device.

 Devices that are not generally available to the public typically result in a violation of the
Fourth Amendment

 Kyllo – Police used a thermal imager. “All details of the home are intimate details”

Test: We think that obtaining by sense-enhancing technology any information regarding

the interior of the home that could not otherwise have been obtained without physical
intrusion into a constitutionally protected area constitutes a search – where the
technology in question is not in general public use.

 Knotts – Court held that the use of a beeper to follow a vehicle on private roads does not
violate the driver’s REP. Since the beeper merely supplied information that could have
been received by ordinary plain-view surveillance, there was not Fourth Amendment
violation

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  Karo – Court held that the transfer to D of the beepered can did not infringe any Fourth
Amendment interest of D’s; only the monitoring of the signals could be a constitutionally
significant intrusion. Therefore, the beeper inside the can allowed police to learn that the
can was in a particular house, and to obtain a warrant for that house resulted in a Fourth
Amendment search.

 Within Protected Area: If the police use a beeper to learn about movement of
contraband within a private dwelling, a Fourth Amendment intrusion on the inhabitant’s
privacy takes place.

Arrest Warrants:

 Less Frequently Used

 Plain View: When executing an arrest, the police come across an incriminating object,
they may seize it just as when they come across such an object while executing a search.

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Warrantless Arrests and Searches

 Arrest Warrants: Arrest warrants are required only when the police enter a private home
to make an arrest and no exigent circumstances exists.
 Search Warrants: Police ordinarily need a search warrant to conduct a search or seizure of
property. However there are exceptions:

- Exigent Circumstances – Exigent circumstances such as “hot pursuit” , the

officers/public are in immediate danger, or the evidence would spoil or
disappear in the time it would take to obtain a warrant
- Search Incident to Lawful Arrest – When the police are making a lawful
arrest, they may search the area within the arrestee’s control
- Consent Searches – No Warrant is needed if the person whose premises,
person, or effects are to be searched consents to the search
- Automobile Searches – When the driver of a car is arrested, the car may be
searched at the station-house without a warrant (inventory search). Also, if the
police reasonably believe that a car is carrying contraband it may be subjected
to a full warrantless search in the field, including a search of any closed
containers.
- Plain View – Police who are lawfully in a particular place may make a
warrantless seizure of evidence that they come across in plain view.
- Inspections and Regulatory Searches – For most types of inspections, a
warrant is required. But certain types of regulatory searches, such as
immigration-related ones, may be carried out without a warrant.
- Stop and Frisk – An officer may briefly detain a suspect to make inquiries if
he has reasonable suspicion (lower standard then probable cause) that criminal
activity is afoot. In doing so, he may make a frisk r pat-down of the suspect’s
outer clothing in an attempt to discover weapons.

Warrantless Arrests:

 Payton v. New York – Court held that if there are no exigent circumstances the police
may not enter a private home to make a warrantless arrest; an entry for the purpose of
making an arrest is nearly as intrusive as an entry for a search. The Fourth Amendment
requires that a neutral and detached official certify that there is probable cause to make
the arrest before this intrusion may take place.

Invalid Arrest: The principal consequence of an invalid arrest is likely to be that

evidence seized during the arrest will not be admissible.

Held that an arrest warrant alone will suffice to allow the police to enter a suspect’s own
residence to arrest him.

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  Atwater v. City of Lago Vista – A warrantless arrest for a crime committed in an
officer’s presence is permissible even where the crime is so minor that the only potential
punishment is a fine rather than imprisonment. Court found that the arrest was not a
Violation of the Fourth Amendment even though the offense was extremely minor and
punishable only by a fine.

Fourth Amendment does not prevent an officer from making a full custodial arrest for
any traffic violation or other minor misdemeanor committed in the officer’s presence, no
matter how slight are the law enforcement interests favoring such an arrest.

Bright Line Rule: If an officer has probable cause to believe that individual has
committed even a very minor criminal offense in his presence, he may, without violating
the Fourth Amendment, arrest the offender.

Significance: It furnishes the police with an opportunity to make a search of a stopped

vehicle incident to the arrest of the driver in circumstances where they otherwise would
not have been able to do so.

 Entry Into a House for Minor Offense: Welsh v. Wisconsin - prohibited the police
from making a warrantless nighttime entry of the D’s home in order to arrest him for
drunken driving, a misdemeanor for which state law did not allow a jail sentence.

Atwater Distinguished: Atwater will probably be limited only to warrantless arrests for
non-serious offenses where the arrest occurs in a vehicle or other public places rather
than a dwelling.

Search Incident to Arrest:

 Pre-1969 Law – When the police validly arrested a person, they could constitutionally
search the entire premises where he was arrested, even though they did not have a search
warrant (U.S. v. Rabinowitz)

Control - Area within the suspect’s control

 Chimel v. California – Restricted the scope of the search incident t arrest; drastically
restricted the physical area in which the search could be performed.

Court found the search to have been invalid, because it was unnecessarily widespread.
The Court recognized the police’s right to search the area within the D’s immediate
control.

When an arrest is made, it is reasonable for the arresting officer to search the person
arrested in order to remove any weapons that the latter might seek to use in order to resist
arrest or effect his escape.

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 Reasonable for the officer to seize any evidence on the arrestee’s person in order to
prevent its concealment or destruction.
There is ample justification therefore for a search of the arrestee’s person and the area
within his immediate control – construed to mean the area he might gain possession of a
weapon or destructible evidence.

U.S. v. Chadwick – Must be some real possibility that the suspect can reach the area
being searched. The Court held the search invalid saying that a search is not incident to
arrest if it is remote in time or place from the arrest.

 Automobile SILA:

If the arrest is of a driver the car’s passenger compartment can no longer be searched
incident to the arrest, if the driver has been physically restrained from accessing the
compartment

New York v. Belton – A SILA allowed a warrantless search of the entire passenger
compartment (including a search of any containers even closed one found inside the
compartment).

Allowed a search of not just the passenger compartment but every purse, briefcase, or
other container within that space.

Arizona v. Gant – Overruled Belton. The SILA allows a warrantless search of the
passenger compartment only if one of two things are true:

- 1) the arrestee has access to the passenger compartment at the moment of the
search (typically never the case); or
2) the police reasonably believe that the passenger compartment may contain
evidence of the offense for which the arrest is being made.

Once Gant was arrested and in the back of the patrol car due to his lack of access the
SILA did not apply to the search of the passenger compartment. Held based on Chimel –
authorizes police to search a vehicle incident to a recent occupant’s arrest only when the
arrestee is unsecured and within reaching distance of the passenger compartment at the
time of the search, rejecting Belton

Gant removes the police’s right to make a passenger compartment search incident to a
traffic arrest

Concludes that circumstances unique to the vehicle context justify a SILA when it is
reasonable to believe that evidence relevant to the crime of arrest might be found in the
vehicle. In the core case of an arrest for a traffic violation, this would not apply.

Removed only the SILA doctrine not other long established doctrines that may permit a
warrantless search of the compartment.

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 Michigan v. Long – If the police reasonably conclude that the driver may be dangerous
and might gain access to a weapon inside the car once he’s permitted to return to the car
post-interrogation, then under the stop and frisk doctrine the police may conduct a brief
protective search of the passenger compartment for weapons.

 U.S. v. Ross – a doctrine providing that warrantless field searches of properly-stopped

automobiles may be providing that warrantless field searches of properly-stopped
automobiles may be made as long as there is probable cause for the search and the search
is limited to places where the evidence being sought might plausibly be found

Extended its liberal riles for automobile searches to closed containers (including luggage)
carried by car or other form of transport.

Ross – Suspected of selling drugs, given a description by an informant, they did not have
a lawful warrant for arrest or search and found a closed paper bag in the trunk. Since the
police legitimately stopped the automobile and had probable cause to believe that
contraband was contained in it they could conduct a warrantless search of the vehicle.
Thus every part of the vehicle where the contraband might be stored could be inspected.
This included all receptacles and packages that could possibly contain the object of the
search. The scope of the search is not defined by the nature of the container in which the
contraband is secreted. Rather, it is defined by the object of the search and the places in
which there is probable cause to believe that it may be found.

 **You must examine all possible exceptions

 Protective Sweeps - Where the arrest takes place in the suspects home the officers may
conduct a protective sweep of all or part of the premises if they have a reasonable belief
based on specific and articulable facts that another person who might be dangerous to the
officer may be present in the areas to be swept (Maryland v. Buie)

Is a quick and limited search of premises incident to arrest and is conducted to protect the
safety of the arresting officers. It is not a full search.

 SILA exception to the requirement of a search warrant applies only where the arrest is
legal. Thus if the arrest turns out to have been made without probable cause the search
incident to it cannot be justified on the incident to arrest rationale and the evidence must
be suppressed unless some other exception to the warrant requirement justifies it.

 U.S. v. Robinson – Felt a soft package in D’s pocket, he removed it and discovered that
it was a crumpled up cigarette pack containing a small package of heroin. Court held that
a full body search would be allowable in any situation in which a full-custody arrest
occurs.

The police have a right to protect themselves by looking for weapons concealed on the
person of the arrestee

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 The vehicle was not searched.

Allowed the incident to arrest exception to apply to the search of the person of a driver
who was stopped on suspicion of driving with a revoked license, a relatively minor crime.

Case stands for the proposition that any time a traffic or other arrest is made no matter
how minor the crime is for which the arrest is being made, a full body search may be
conducted incident to that arrest as long as the arrest is custodial (i.e. the arrestee was
taken to the station to be booked)

 Pretext Arrest – Courts have never said whether the fact that the arrest was pre-textual
renders the search incident to it a Fourth Amendment violation. Courts have said that the
fact that a stop of a motorist for a traffic violation I made for pre-textual reasons does not
mean that any evidence garnered as the result of that stop was unlawfully obtained, or
inadmissible (Whren v. U.S.)

A search incident to a pre-textual arrest is nonetheless lawful as long as the police in fact
had probable cause to believe that the person arrested had committed a crime for which
arrest was allowed under local law.

Whren illustrates that the fact that police’s real reason for the stop is something other
than the traffic violation is irrelevant once the police have probable cause to believe that
even a minor traffic violation has occurred they may stop the vehicle.

Exigent Circumstances:

 These circumstances may include preventing the imminent destruction of evidence

preventing harm to persons and searching in hot pursuit for a suspect.

 Destruction – Where the police reasonably fear that evidence of a crime will be
destroyed if they do not act quickly these fears may justify at least a warrantless seizure,
if not a warrantless search.

Illinois v. McArthur – Established that where the police 1) have probable cause to
believe that premises contain evidence of crime or contraband, and 2) reason to fear that
someone will destroy that evidence before a search warrant can be obtained, they can
take steps to avoid that destruction (sealing the premises, or accompanying the
inhabitants while they are in the premises) as long as the intrusion is no more restrictive
than necessary and lasts no longer than is reasonably needed to get the search warrant.

 People May Need Assistance - Brigham City v. Stuart – Police may enter a home
without a warrant to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury

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 Objectively Reasonable Test: the reasonableness of the police action will be judged not
by considering whether the police’s motive in making the entry was to respond to the
exigency but rather by whether the police’s motive in making the entry was to respond to
the exigency, but rather by whether the circumstances, viewed objectively, were exigent.

 Weapons – the need for immediate action rationale has also been applied to allow
warrantless searches of premises where the police have a reasonable suspicion that
dangerous weapons will be on the premises to be searched.

 Hot Pursuit – If the police are pursuing a felony suspect, and have reason to believe that
he has entered particular premises, they may entre those premises to search for him.

They may come across other items of evidence of criminal behavior, this evidence may
be seized and admitted

 Where the police are not in hot pursuit and there are no other exigent circumstances they
may not enter one person’s private dwelling to arrest another even if they are acting
pursuant to an arrest warrant. (Steagald v. U.S.)

Court held that the arrest warrant could not be used as legal authority to enter the home of
a person other than the person named in the warrant.

Applies only where the police attempt to arrest a suspect by entering a house other than
the suspect’s home.

No arrest warrant is required to arrest a suspect in a public place, assuming that there is
probable cause, so that the subject of an arrest warrant may be arrested before entering or
after leaving the home of a third party.

The Plain View Doctrine and Seizures of Evidence:

 For the plain view doctrine to be applied so that a warrantless seizure of evidence is
allowable, three requirements must be met:

- Officer must not have violated the Fourth Amendment in arriving at the place
from which the items are plainly viewed;
- Incriminating nature of the items must be immediately apparent; and
- Officers must have a lawful right of access to the object itself.

Horton v. California

 Once police first see the item in plain view must have probable cause to believe that the
object is incriminating

Arizona v. Hicks – Bullet came through D’s apartment and injured a man. Police enter
the apartment and believe a system was stolen and moves it to read the serial number.

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 Court held that the plain view doctrine does not apply because at the moment the officer
picked up the stereo, he did not have probable cause for the search he performed by
moving it, merely a reasonable suspicion.

 Lawful right of access to object – officers must have lawful right of access to the object
itself.

(i.e. sees contraband through a window from the public sidewalk the police may not make
a warrantless entry into home to seize it because they do not have lawful access to the
inside of the home

Automobile Searches

 The police may search a vehicle without a warrant if such a search is necessary to
preserve evidence as will be the case where the car can be quickly driven out of the
jurisdiction. (Carroll v. U.S.)

Mobility of an automobile means that if the police are not given broad powers to make a
warrantless seizure of a car, the car can be driven away, sold, or its contents quickly
disposed of.

A person’s expectation of privacy with respect to his automobile is significantly less than
that relating to his home or office. (California v. Carney) The vehicle uses public
roadways and is frequently in plain view.

Carney establishes that a mobile home will be treated as a vehicle; but may be treated
differently where the home is located in a way or place suggesting that it is used as a
home.

 Search at Station After Arrest - Police arrest a driver, take him and his car to the station
and search the car there. Such a search was allowed in Chambers v. Maroney

Chambers held that the search was valid despite the fact that since the car was in police
possession a warrant could have been procured without endangering the preservation of
evidence

Test – 1) The destruction or removal of evidence exception at least permitted the

arresting officers to seize the car and deny its use to anyone; and 2) that being the case,
there is little to choose in terms of practical consequences between an immediate search
at the station without a warrant and the car’s immobilization until a warrant is obtained.

 Inventory Search – South Dakota v. Opperman – Inventory of an impounded car’s

contents may sometimes be taken even if there is no probable cause to search.

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 Search Where Vehicle is Stopped – Police also generally have a right to conduct a
warrantless search of a vehicle immediately at the place where they have stopped it
(assuming they had probable cause to make the stop)

 Closed Containers - An individual’s expectation of privacy in a vehicle and its contents

may not survive if probable cause is given to believe that the vehicle is transporting
contraband. If the police have probable cause to believe that contraband (or other
evidence of crime) could be in a closed container found in the car, the police may open
the container regardless of whether it is of a sort as to which a legitimate expectation of
privacy would ordinarily obtain.

 Container Belonging to Passenger – Police may also search any container that they
know belongs to a passenger rather than to the driver even if the police have no grounds
whatever to suspect the passenger of any wrongdoing (Wyoming v. Houghton)

Police officers with probable cause to search a car may inspect passenger’s belongings
found in the car that are capable of concealing the object of the search.

- Passengers, no less than drivers possess a reduced expectation of privacy with

regard to the property they transport in cars
- An ownership based rule would impede law enforcement (i.e. a criminal
might be able to hide contraband in a passenger’s belongings as readily as in
other containers in the car)
- Items attached to a person might regard increased protection

 Consent to Search – Driver’s consent to the search will be deemed to extend to any
closed containers inside the vehicle if they might reasonably contain the object of the
search.

 Probable Cause for Container - If the police have probable cause to believe that a
container contains contraband, they may wait until the container is in the car, stop the car,
and seize and open the container all without a warrant (California v. Acevedo)

Police conduct was proper, the right to conduct a warrantless search of containers in a car
should apply not only where their probable cause relates to the car as a whole but also
where their probable cause extends to the container itself.

Gives the police a powerful incentive to postpone getting a warrant.

 Impoundment Search:

Plain View – settled that if the police find evidence in plain view in a vehicle as they are
impounding it they may seize the evidence (Harris v. U.S.)

If the car is impounded because it has been towed for illegal parking, the court has held it
may similarly be subjected to a warrantless inventory search even though police have

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never had probable cause to believe it contains contraband or evidence of a crime (South
Dakota v. Opperman)

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