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Four Common Search Warrant Exceptions

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The warrant requirement in the Fourth Amendment is one of the most cherished American civil rights. However, its prohibition only applies to unreasonable warrantless searches and seizures, as opposed to all warrantless searches and seizures.

To separate reasonable searches from unreasonable ones, the Supreme Court compiled a list of recognized search warrant exceptions.

Consent

The most egregious search and seizure violations are legally reasonable if the defendant consents to the search. Once defendants give consent, they usually cannot withdraw it, so if an officer obtains consent to search a car, the defendant cannot stop the officer if she begins tearing up the upholstery. Other common consent issues include:

  • Effectiveness: Contrary to popular myth, a roommate or other non-property owner can give consent to search a dwelling or other place, if the officer reasonably believes that the consenting party has such authority.
  • Deception/Coercion: A consent search is probably illegal if the deception is relevant to the consent (g. an officer poses as a repairman to gain entry into a house). Similarly, if an officer threatens to get a warrant if the suspect does not consent, that statement is not coercive, because the officer has the legal authority to do just that.

People have an absolute right to refuse consent under any circumstances.

Plain View

This exception often comes up in traffic stops, because officers do not need warrants to seize contraband that they see in plain view, such as a baggie of drugs on a seat.

If the officer sees contraband partially in plain view, such as the barrel of a gun protruding from under a seat cushion, the officer must be able to sufficiently identify it as contraband. In this particular case, the gun seizure may be invalid, because it is very difficult to distinguish among air pistols, toy guns, and real guns.

Moreover, the officer must have permission to be in the place where the item is in plain view. And, the officer cannot use binoculars, X-rays, or other enhancements to bring hidden items into plain view.

Search Incident to Arrest

Until 2009, this doctrine may have been the most common search warrant exception, because an officer could “arrest” a defendant for a minor infraction like speeding or running a red light and then conduct an exhaustive vehicle search.

But in Arizona v. Gant, the Supreme Court limited such warrantless searches to weapons pat-downs, so this exception does not come up very much anymore.

Stop and Frisk

If officers can point to specific, articulable facts that justify their actions, they may pat a person down for weapons and keep any contraband that they find during these searches. Officers may partially rely on their instincts prior to stop and frisk searches, as long as there are sufficient facts to constitute reasonable suspicion of criminal activity.

Reach Out to Assertive Lawyers

Items in warrantless searches can sometimes be used in a subsequent criminal trial. For a free consultation with an experienced criminal defense attorney in Port St. Lucie, contact Eighmie Law Firm, P.A. Convenient payment plans are available.

Resource:

supremecourt.gov/opinions/08pdf/07-542.pdf

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