A warrantless search for evanescent evidence is permissible when

LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Summarize the issues involved in warrantless searches and seizures. � Explain the search incident to arrest doctrine. � Explain the concept of hot pursuit. � Summarize the special issues involved in automobile searches. � Summarize the plain view doctrine. � Describe the situations in which warrantless arrests may be made.

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CHAPTER OUTLINE

Searches and Arrests without Warrants

C H

A P

T E

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OUTLINE

Introduction: Moving beyond the Warrant Requirement

Warrantless Searches Searches Incident to Arrest

Restrictions Timing of the Search Scope of the Search

Searches Based on Exigent Circumstances Hot Pursuit Escape and Endangerment to Others Absent

Hot Pursuit Evanescent Evidence Offense Seriousness and Exigent Circumstances

Automobile Searches Rationale Requirements Scope of the Search Other Actions Sanctioned in a Traffic Stop

When Other Doctrines Govern Searches of Automobiles

Racial Profiling Plain View Searches

The Lawful Access Requirement The “Immediately Apparent” Requirement The Role of Inadvertency Plain Touch, Feel, and Smell Plain View as a Fallback Measure

Warrantless Arrests Arrests Based on Exigent Circumstances Arrests in Public Places

Arrests for Minor Offenses

Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Moving beyond the Warrant Requirement

If it was not for exceptions to the warrant requirement, the Fourth Amendment would take substantially less effort to understand. At the same time, however, the many exceptions to the Fourth Amendment’s warrant requirement are what make the Fourth Amendment interesting. The so-called warrantless searches and seizures discussed in this chapter are based on Supreme Court decisions, in which it was believed that to require a warrant would constitute an undue burden on law enforcement officials. Still, though, a warrant is always preferable; whenever circumstances permit, one should be obtained.

The exceptions to the Fourth Amendment’s warrant requirement considered in this chapter are those requiring probable cause. This chapter’s first main section covers warrantless searches, but warrantless arrests are also considered. There are other exceptions to the warrant requirement that do not require probable cause; they are

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150 Part 2 • Search and Seizure

Chimel v. California (395 U.S. 752 [1969])

discussed in the next two chapters. Chapter 6 examines the law of stop-and-frisk, and Chapter 7 looks at searches and seizures based on administrative justification as well as consent.

WARRANTLESS SEARCHES

Broadly, there are four types of warrantless searches that require probable cause. They are called exceptions to the warrant requirement because the actions at issue do not need to be supported by a search warrant. The four types of warrantless searches are (1) searches incident to (i.e., following) arrest; (2) searches in the presence of exigent cir- cumstances; (3) searches involving automobiles; and (4) searches based on the “plain view” doctrine. Other warrantless searches exist, such as consent searches, but they do not require probable cause. One may be inclined to put “frisks” in the warrantless search category, but they are not technically “searches.” Consent, frisks, and other warrantless actions that require less than probable cause are taken up in the next two chapters.

Searches Incident to Arrest

Imagine a situation in which a police officer has lawfully (i.e., with probable cause) arrested a suspect, is leading him away, and observes the suspect reach into his pocket. What would be going through the police officer’s mind as he or she observed this behavior? Scenarios like this illustrate the reasoning behind the search incident to arrest exception. Namely, police officers must be permitted to engage in a search of a suspect incident to arrest (i.e., following an arrest). It would be impractical, even dangerous, to wait for a warrant before conducting such a search.

The leading case in the area of incident searches is Chimel v. California (395 U.S. 752 [1969]). As the Supreme Court stated, a search incident to arrest is permitted “to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape” and to “seize any evidence on the arrestee’s person in order to prevent its con- cealment or destruction” (p. 763).

RESTRICTIONS The most basic requirement concerning searches incident to arrest— and one that often goes overlooked—is that the arrest must be lawful. When the arrest itself is not lawful (i.e., when it is not based on probable cause), any search that follows is unlawful (see Draper v. United States, 358 U.S. 307 [1959]).

Another important threshold issue with regard to searches incident to arrest con- cerns the nature of the offense. Courts have grappled with the question as to whether a search should be permitted when the offense on which the arrest is based is not serious. Because the rationale of the exception is to provide officer safety, then is officer safety likely to be compromised when a minor offense, as opposed to a serious offense, justi- fies the arrest?

Two important Supreme Court cases have sought to answer these questions. First, in United States v. Robinson (414 U.S. 218 [1973]), the Court reversed a lower court’s deci- sion that only a patdown of the suspect’s outer clothing was permissible following an arrest for driving with a revoked license. And in a companion case to Robinson, Gustafson v. Florida (414 U.S. 260 [1973]), the Court upheld the search of a suspect after his arrest for failure to have his driver’s license.

The Supreme Court offered two reasons for its opinions in Robinson and Gustafson. First, according to Chief Justice Rehnquist, “It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical

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Terry-stop” (United States v. Robinson, p. 234). Second, the Court believed a bright- line rule was in order given the stakes involved (i.e., officer safety): “A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search” (p. 235).

Thus, any arrest justifies a warrantless search incident to that arrest. A key restric- tion, however, is that the arrest must result in a person being taken into custody. This was the ruling from Knowles v. Iowa (525 U.S. 113 [1998]). In that case, a police officer stopped a person for speeding, and rather than arresting him (which the officer had justification to do), the officer issued him a citation. Then, the officer conducted a search of the car and found a marijuana pipe. The Court noted that traffic stops rarely pose the same threat to officer safety as arrests. This is not to suggest, however, that police officers can- not search people incident to lawful arrest for minor vehicle-related infractions. If the authority to arrest is present, an incident search is permissible. The key restriction is that the person must actually be arrested and taken into custody. Otherwise, the search will not conform with Fourth Amendment requirements.

TIMING OF THE SEARCH Another key restriction pertaining to searches incident to arrest has to do with the timing of the search. In particular, probable cause to arrest must precede the warrantless search (Sibron v. New York, 392 U.S. 40 [1968]). The reason for this is to restrict officers from engaging in “fishing expeditions,” or searches based on less than probable cause that would presumably result in probable cause to make an arrest. Note, however, that if probable cause to arrest is in place, the officer is not required to formally arrest the suspect before engaging in the search (see Rawlings v. Kentucky, 448 U.S. 98 [1980]).

If the search follows an arrest, then it must take place soon after the arrest. In legal parlance, the search must be contemporaneous to the arrest. In Preston v. United States (376 U.S. 364 [1964]), the case that established this rule, Justice Black observed that the “justifications [for the search incident to arrest] are absent where a search is remote in time or place from the arrest” (p. 367). In Preston, police officers arrested the occupants of a car and took them to jail. After this, the officers searched the car, which had been towed to an impound lot. The Supreme Court noted that the possibilities of destruction of evidence and danger to the officers were no longer in place, as the suspects were no longer even present (see also Chambers v. Maroney, 399 U.S. 42 [1970]).

Note that while a noncontemporaneous search is not justified under the search incident to arrest exception, it is authorized under the automobile exception discussed later. Also, the Supreme Court authorizes inventory searches of automobiles that have been lawfully impounded. Inventory searches are discussed later, as well.

There is one significant exception to the contemporaneousness requirement. In United States v. Edwards (415 U.S. 800 [1974]), the Supreme Court, in a 5 to 4 decision, upheld the warrantless search and seizure of an arrestee’s clothing 10 hours after his arrest, during which time he was in jail. The Court noted that “searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention” (p. 803). The Court did point out, how- ever, that the taking of the individual’s clothing at the time of the arrest would have been impractical because it “was late at night[,] no substitute clothing was then avail- able for Edwards to wear, and it would certainly have been unreasonable for the police to have stripped respondent of his clothing and left him exposed in his cell throughout the night” (p. 805). Thus, the Edwards decision established the rule that a noncontempo- raneous search incident to arrest is permissible when (1) an immediate search is nearly impossible and (2) the exigency still exists at the time of the later search.

Chapter 5 • Searches and Arrests without Warrants 151

Knowles v. Iowa (525 U.S. 113 [1998])

Preston v. United States (376 U.S. 364 [1964])

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152 Part 2 • Search and Seizure

SCOPE OF THE SEARCH The case of United States v. Rabinowitz (339 U.S. 56 [1950]) was the first to set limits on the scope of a search incident to arrest. In that case, the officers, armed with a valid arrest warrant, arrested a man and then conducted a warrantless search of his one-room business, including the desk, safe, and file cabinets. The Supreme Court upheld the search because the room “was small and under the immedi- ate and complete control of the respondent” (p. 64).

Nearly 20 years after Rabinowitz, however, the Supreme Court voted to over- turn its earlier decision. In the case of Chimel v. California, the Court argued that the Rabinowitz decision had been construed to mean that “a warrantless search ‘incident to a lawful arrest’ may generally extend to the area that is considered to be in the ‘possession’ or under the ‘control’ of the person arrested” (p. 759). Further, the Court noted that the Rabinowitz standard gave police “the opportunity to engage in searches not justified by probable cause, [but] by the simple expedient of arranging to arrest suspects at home rather than elsewhere” (p. 767). To get around this prob- lem, Justice Stewart argued in favor of a new armspan rule. In the Court’s words, a search incident to arrest would now be limited to the area “within [the] immediate control” of the person arrested—that is, “the area from within which he might have obtained either a weapon or something that could have been used as evidence against him” (p. 768).

An interesting twist on the aforementioned cases can be found in Washington v. Chrisman (455 U.S. 1 [1982]). In that case, an officer stopped a student on suspicion of drinking under age, an action that the Court considered an arrest. The officer asked the student for his identification and followed him to his dorm room, where the student’s identification was presumably located. While at the student’s room, the officer observed in plain view marijuana and drug paraphernalia. The officer seized the evidence. The Supreme Court upheld the seizure of the evidence, stating that “[e]very arrest must be presumed to present a risk of danger to the arresting officer. . . . Moreover, the possibility that an arrested person will attempt to escape if not properly supervised is obvious” (p. 7). Thus, “it is not unreasonable, under the Fourth Amendment for an officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest” (p. 7).

The cases discussed thus far have focused narrowly on the scope of the incident search exception with reference to the arrestee. What if another person besides the arrestee poses a threat to the police? This concern has led to several exceptions to the armspan rule.

First, in Maryland v. Buie (494 U.S. 325 [1990]), the Supreme Court expanded the scope of the incident search in two ways. It held that the police may, as part of a search incident to arrest, look in areas immediately adjoining the place of arrest for other per- sons who might attack the officers; no justification is required. The key, however, is that

DECISION-MAKING EXERCISE 5.1

Timing of a Search Incident to Arrest

A locked suitcase was transported by police officers to the po- lice station, after having been lawfully seized from the open trunk of a parked automobile during the arrests of those who were in its possession. After being back at the police station for over an hour, the officers opened the suitcase. They acted

without a search warrant and without the consent of the arrested persons, but they did have probable cause to believe that the container held contraband. In fact, the suitcase contained large amounts of marijuana. Can this be considered a valid search incident to arrest? IS

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Chapter 5 • Searches and Arrests without Warrants 153

such a search must occur incident to arrest. Next, the Court held that at any point up to the time the arrest is completed, the police may engage in a protective sweep (i.e., “a cursory visual inspection of those places in which a person might be hiding”), but reasonable suspicion must exist for such a sweep to be justified. Thus, no justification is required after arrest, but reasonable suspicion is required to engage in a sweep up to the point of the arrest.

Aside from the possible danger to police officers from “confederates,” there is the potential for such third parties to engage in the destruction of evidence. Only one Supreme Court case appears to address this issue: Vale v. Louisiana (399 U.S. 30 [1970]). In that case, police officers had warrants authorizing the arrest of the defendant. While engaged in surveillance of the house, the officers observed the defendant come out of the house and engage in what appeared to be a drug sale. They arrested the defendant outside the home but then went back inside and searched it, according to the officers, because two of the defendant’s relatives had arrived at the house in the meantime and could have destroyed evidence. Vale was actually a case concerning exigent circum- stances (see later in this chapter), and the Court reversed the Louisiana Supreme Court’s decision that upheld the search. But, in fact, the Court’s opinion was not partic- ularly instructive. It stated, in relevant part, that “no reason, so far as anything before us appears, to suppose that it was impracticable for [the officers] to obtain a search war- rant as well” (p. 35), but it did not expressly state that related searches would always be unconstitutional. Indeed, several lower courts have upheld warrantless searches of homes for evidence after arrest on less than probable cause (e.g., United States v. Hoyos, 892 F.2d 1387 [9th Cir.1989]; United States v. Rubin, 474 F.2d 262 [3rd Cir. 1973]).

Another type of warrantless search of a house following a lawful arrest has been authorized based on the need to secure the premises, usually pending the procural of a search warrant. Thus, if the police believe another person or persons are in the house and could potentially destroy evidence, the house may be secured but not searched until a warrant has been obtained. This was the decision reached in Segura v. United States (468 U.S. 796 [1984]). In that case, the Supreme Court, in another 5 to 4 decision, declared “that where officers, having probable cause, enter premises . . . , arrest the occupants . . . and take them into custody and, for no more than the period here involved [19 hours in this case], secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment’s proscription against unreasonable seizures” (p. 798).

It is appropriate at this juncture to note that the Court has authorized the police to rely on the incident search exception to engage in searches well beyond the arrestee’s armspan—and when no threat exists from people sympathetic to the arrestee. In partic- ular, the Supreme Court has held that officers may engage in a warrantless, suspicion- less search of a car and containers within it following the lawful arrest of the car’s driver (New York v. Belton, 453 U.S. 454 [1981]) but “only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense” in question (Arizona v. Gant, No. 07-542 [2009]). This issue is discussed at greater length later in this chapter in the section “Automobile Searches.”

Summary. A search incident to arrest may be conducted without a warrant, but it is subject to four restrictions. First, the arrest must be based on probable cause and result in custodial detention. Second, the search must follow the arrest closely in time (i.e., be contemporaneous). Third, the police must limit their search to (1) the person arrested and any containers discovered from that search; (2) the arrestee’s immediate grabbing area; (3) a protective sweep of the premises without justification following an arrest but with reasonable suspicion leading up to the arrest; and/or (4) securing

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154 Part 2 • Search and Seizure

the premises, if they have a reasonable belief that evidence may be destroyed by someone sympathetic to the arrestee (see Figure 5.1). Finally, the premises to be searched can be secured prior to procural of a warrant, but reasonable suspicion is required. Figure 5.2 presents the Gallatin, Tennessee, Police Department’s policy for a search incident to arrest.

FIGURE 5.2 Search Incident to Arrest Policy (Gallatin, TN, Police Department)

9.7.2 Incident to Arrest

When an officer places a person under arrest, the officer will conduct a thorough search of the person and the area in his/her immediate reach. All items on the person of the subject will be removed and secured by the officer. The search of the immedi- ate reach of the subject is intended to disclose weapons and any possible evidence. If these kinds of items are found, they may also be secured by the officer and placed into evidence. A search incident to arrest will be conducted only after the subject has been placed in restraints (i.e., handcuffs). Whenever possible, the search will be conducted by two officers, one conducting the search, the other providing cover. The search should begin in the immediate area around the subject’s hands, including an inspection of the sub- ject’s waistband. The officer should then search the subject methodically by searching one-half of the subject’s body from head to foot and then returning to the top of the head and search the other side of the subject’s body in the same manner. Only by searching a subject in such a methodical manner will an officer ensure his/her safety in knowing that the subject is not in possession of any weapons. This method for searching an individual incident to an arrest is only offered as one way to search a subject. Under no circumstances is this method considered as the only option an officer has in searching a subject; however, it is a method that has been demonstrated to be effective when used consistently. Any method is acceptable as long as the search is thorough, complete, and effective in discovering weapons and evidence that are occasionally concealed on a subject’s person.

Source: From General Directives Manual, Gallatin, Tennessee, Police Department (December 28, 1999).

Used courtesy of the Gallatin Police Department.

FIGURE 5.1 Permissible Scope of a Search Incident to Arrest (assuming a valid arrest)

Level of Intrusion Justification Required

Search of arrestee None

Search of arrestee’s grabbing area None

Protective sweep Reasonable suspicion that confederates are present

Secure residence Reasonable suspicion to fear destruction of evidence

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Chapter 5 • Searches and Arrests without Warrants 155

DECISION-MAKING EXERCISE 5.2

Proper Scope for a Search Incident to Arrest

Two police officers arrived at Bobby Sheen’s house with a valid warrant for his arrest. The officers were informed by a nosy neighbor that two of Sheen’s accomplices were in the house with him. The officers knocked, announced their pres- ence, and entered the house. They encountered Sheen as he

was descending the stairs. He was placed under arrest. Immediately after the arrest, one of the officers went up- stairs and found drug paraphernalia on a nightstand. May this evidence be lawfully seized? What if the drug parapher- nalia had been found in a drawer instead?

Searches Based on Exigent Circumstances

As indicated earlier, the exceptions to the search warrant requirement are premised on the impracticality of obtaining a warrant. Perhaps no exception illustrates this better than the exigent circumstances exception. Simply put, when the exigencies, or emer- gencies, of the situation require the police to act immediately at the risk of danger to themselves, danger to others, the destruction of evidence, or the escape of the suspect, it would be unreasonable to require the police to take time to obtain a warrant.

Generally, three types of exigencies are recognized by the courts as authorizing the police to act without a warrant: (1) hot pursuit; (2) likelihood of escape or danger to others absent hot pursuit; and (3) evanescent evidence. Despite the fact that these exceptions allow the police to act without a warrant, probable cause is still required. For example, probable cause that the person being pursued is the suspect is required before the police can enter a home or building without a warrant to arrest him or her.

HOT PURSUIT The Supreme Court first recognized the hot pursuit exception in the case of Warden v. Hayden (387 U.S. 294 [1967]), in which the police were called by taxicab drivers who reported that their taxi company had been robbed. The police followed the suspect to a house, where they were granted entry by the suspect’s wife. The suspect was upstairs in the house, pretending to be asleep. While searching the house for the suspect, the police found and seized clothing, a shotgun, and a pistol, all of which were used against the suspect at trial. The Court found the warrantless entry reasonable because the “exigencies of the situation made that course imperative” (p. 298). Several reasons were offered for the decision. First, Justice Brennan stated that “[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely danger their lives or the lives of others” (pp. 298–299). Also, “[s]peed . . . was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape” (p. 299). Despite the sweeping language from the Hayden decision, the Supreme Court has imposed five restrictions on searches and seizures premised on hot pursuit.

• Hot pursuit permits warrantless entry only when, first, the police have probable cause to believe that the person they are chasing has committed a crime and is on the premises entered.

• The police are also required to have reason to believe the suspect will escape or that further harm, either to evidence or to other people, will occur if the suspect is not immediately apprehended. With regard to this second restriction, one court has observed that “[a] hot pursuit, by itself, creates no necessity for dispensing with a warrant” (State v. Wren, 115 Idaho 618 [1989], p. 625). Similarly, the Ninth Circuit has stated that police officers must reasonably believe (1) “that the sus- pect either know[s] or will learn at any moment that they are in immediate

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156 Part 2 • Search and Seizure

Minnesota v. Olson (495 U.S. 91 [1990])

Welsh v. Wisconsin (466 U.S. 740 [1984])

danger of apprehension”; (2) that “evidence is being currently removed or destroyed and it is impractical to advert the situation without immediately arresting the suspects or seizing the evidence”; or (3) that “a suspect is currently endangering the lives of themselves or others” (United States v. George, 883 F.2d 1407 [9th Cir. 1989]).

• Although it often goes without saying, the police must begin hot pursuit from a lawful starting point. If, for example, officers are unlawfully on someone’s private property, they will not succeed in claiming hot pursuit to justify any further warrantless action. However, in United States v. Santana (427 U.S. 38 [1976]), the Supreme Court upheld the warrantless arrest of a woman in her house when the police observed a crime on private property from a public vantage point. In that case, police officers observed Santana standing in the open doorway of her house with a brown paper bag, which they had probable cause to believe contained narcotics. They pursued her into the house and arrested her. This decision sug- gests that the police can pursue from a public vantage point a suspect whom they observe on private property.

• The hot pursuit doctrine applies only to serious offenses, including felonies and some misdemeanors (see, e.g., Welsh v. Wisconsin, 466 U.S. 740 [1984]). This restric- tion on the hot pursuit doctrine—and, indeed, on exigent circumstance searches in general—is perhaps the most important one. As such, it is treated in a section by itself later.

• Generally, the scope of a search based on hot pursuit is broad. In Hayden, for exam- ple, the Supreme Court stated, “The permissible scope of search must, at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape” (Warden v. Hayden, p. 299). However, the search must be “prior to or immediately contemporaneous with” the arrest of the suspect. Also, officers may only search where the suspect or weapons might reason- ably be found. A simple rule of thumb, then, is that the nature of the exigency defines the scope of the search. Another rule of thumb with regard to hot pursuit is that if the police have a reasonable amount of time to obtain a warrant, they should always do so. In Welsh, for example, Justice Brennan argued that the government’s “claim of hot pursuit . . . [was] . . . unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of [the] crime” (Welsh v. Wisconsin, p. 753).

ESCAPE AND ENDANGERMENT TO OTHERS ABSENT HOT PURSUIT Hot pursuit is justi- fied, as just discussed, when, among other things, the suspect may escape or inflict harm on police officers or others. In some situations, however, a suspect can potentially escape or inflict harm absent hot pursuit. In Minnesota v. Olson (495 U.S. 91 [1990]), for example, the prosecution sought to justify a warrantless entry and arrest of a suspect in a duplex that the police had surrounded. There was probable cause to believe that Olson, the man in the duplex, had been the driver of a getaway car involved in a robbery/murder the day before. The Supreme Court ruled that the officers acted uncon- stitutionally under the circumstances because Olson was only the driver, not the murder suspect, and the weapon had been recovered, which diminished the urgency of the situation. In addition, it was unlikely Olson would escape because the building was surrounded. On its face, then, this case is not useful on this point. However, the Court seemed to suggest that had Olson not been the driver (i.e., had been the murderer), had the weapon not been recovered, and had the building not been fully surrounded, the warrantless action would have been lawful.

A more recent case, Brigham City v. Stuart (547 U.S. 398 [2006]) brought clarifica- tion. In that case, police were called to a house that received complaints about a loud party. On arriving at the scene, officers witnessed a fight involving four adults and one

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juvenile. One of the adults hit the juvenile. The officers announced their presence, but they couldn’t be heard above the commotion inside, so they entered without a warrant. In a unanimous decision, the Supreme Court held that such warrantless entries are con- stitutionally permissible so long as the police have an objectively reasonable basis to believe the occupant is “seriously injured or threatened with such injury.”

EVANESCENT EVIDENCE In situations in which the search incident to arrest or hot pur- suit exceptions do not apply, the Court has recognized an additional exception to the warrant required, one that permits warrantless searches for evanescent evidence (i.e., disappearing evidence). This can include evidence inside a person, as well as a house, a paper, or an effect.

The best example of vanishing or disappearing evidence inside a person is alcohol in the blood. In Breithaupt v. Abram (352 U.S. 432 [1957]), the Court upheld the warrant- less intrusion (via a needle) into a man’s body for the purpose of drawing blood to see if he had been drinking. The key in this case, however, was that medical personnel had conducted a routine blood test. The majority noted “that the indiscriminate taking of blood under different conditions or by those not competent to do so” (p. 438) would not be allowed. (Indeed, this is why Breithaupt v. Abram is an isolated case; police officers rarely, if ever, draw blood from suspects. Breathalyzers usually provide sufficient evidence of intoxication.)

The Breithaupt decision also established that warrantless searches for evanescent evidence are permissible only when (1) there is no time to obtain a warrant; (2) there is a “clear indication” that the search will result in obtaining the evidence sought; and (3) the search is conducted in a “reasonable manner.” In support of the reasonable manner requirement, the Court offered the following from a later decision, Schmerber v. California (384 U.S. 757 [1966]):

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interest require law offi- cers to suffer the risk that such evidence may disappear unless there is an immediate search. (pp. 769–770)

In Rochin v. California (342 U.S. 165 [1952]), a case in which the police used a stomach pump to obtain evidence from a man’s stomach, the Court declared that a due process violation occurred and that the officers’ conduct shocked the conscience. The reason was that the police, not medical personnel, extracted the evidence. Another view is that the use of a stomach pump falls somewhat short of a routine medical procedure.

DECISION-MAKING EXERCISE 5.3

Are Exigent Circumstances Present?

An officer attempted to stop a man for speeding 73 miles per hour in a 55-mile-per-hour zone. Instead of stopping, the man sped away and led the officer (and others who quickly joined) on a high-speed pursuit down two-lane roads at speeds of nearly 90 miles per hour. After several unsuc- cessful attempts to stop the fleeing car, one of the pursuing

officers deliberately rammed the fleeing suspect’s car, caus- ing it to crash. The suspect was severely injured and ren- dered quadriplegic. Now he is suing under Section 1983 (see Chapter 2), alleging that the officer who rammed his car used excessive force to effect an unreasonable seizure under the Fourth Amendment. Should his lawsuit go forward?

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158 Part 2 • Search and Seizure

Cupp v. Murphy (412 U.S. 291 [1973])

As for the clear indication requirement, the Court has been somewhat flexible. For example, in United States v. Montoya de Hernandez (469 U.S. 1204 [1985]), the Court treated the clear indication requirement from Breithaupt as being identical to the reasonable suspicion standard set forth in Terry v. Ohio. This case involved the deten- tion for several hours of a woman who was suspected of smuggling narcotics in her alimentary canal.

Finally, it is important to remember that, like the hot pursuit exception, the exigency used to justify a warrantless search for evanescent evidence must be imme- diate. In other words, there must be good reason to believe that an immediate search will result in the seizure of the evidence in question. An example is Cupp v. Murphy (412 U.S. 291 [1973]). In that case, a man who had been informed of his wife’s stran- gulation volunteered to come to the police station for questioning. While he was at the station, officers observed what appeared to be dried blood on the man’s finger- nails. The officers asked if they could take a scraping from his fingernails, and the man refused. He then started rubbing his hands behind his back and placing them in his pockets. At that point, the officers forcibly removed some of the material from under the man’s fingernails. The Court upheld this action on the grounds that the police had probable cause to believe that “highly evanescent evidence” was in the process of being destroyed.

Recently, in Kentucky v. King (No. 09-1272 [2011]), the Supreme Court held that police can make a forcible warrantless entry into a private residence if they have reason to believe evidence is being destroyed. In that case, officers smelled marijuana outside an apartment, knocked loudly, and announced their presence. They then heard what they believed was the sound of evidence being destroyed. They announced their intent to enter, kicked in the door, and found drugs in plain view—and other evidence during the course of a protective sweep. The Supreme Court ruled that the evidence was admissible.

In certain rare situations, the police may have reason to suspect that evidence may be lost or destroyed not because of the actions of a person (the suspect or the suspect’s confederates) but because of other causes. In United States v. Chadwick (433 U.S. 1 [1977]), for example, the Supreme Court noted that a warrant would not be required to search a footlocker if the officers believed that it contained evidence that would lose its value unless the footlocker were opened at once or if the officers had reason to believe that the footlocker contained explosives or other inherently dangerous items.

The American Law Institute’s Code of Pre-Arraignment Procedure summarizes the law concerning exigencies. Section 206.5 of the code provides that warrantless entries based on reasonable cause are permissible when (1) individuals are in imminent danger of death or serious bodily harm; (2) items are present that are imminently likely

DECISION-MAKING EXERCISE 5.4

Immediacy and Evanescent Evidence

A motor home that federal drug agents believed to contain a methamphetamine laboratory was parked in a secluded area near a river. The agents maintained visual surveillance throughout the afternoon. Around 4 p.m., one of the agents smelled chemicals “cooking.” Shortly after that, the agents observed a man dash out of the motor home, gasping for air. In light of this incident, the agents decided to search the

motor home. They ordered all of the occupants out of the motor home and placed them under arrest. The agents then entered the motor home to see if any other people were inside, to turn off any cooking apparatus, and to inventory the contents. They found a methamphetamine laboratory behind a drawn curtain at the back of the motor home. Was this action justified? IS

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to burn, explode, or otherwise cause death, serious bodily harm, or destruction of property; and/or (3) items subject to seizure are present that will cause or be used to cause death or serious bodily injury if not immediately seized.

OFFENSE SERIOUSNESS AND EXIGENT CIRCUMSTANCES The Supreme Court has also noted that the seriousness of the offense for which the warrantless arrest is to be made may be relevant in determining whether exigent circumstances are present. For exam- ple, in Welsh v. Wisconsin, a witness one night reported that an automobile was being driven erratically. Eventually, the car swerved off the road and stopped in a field. The driver walked away before police could arrive at the scene. When they did arrive, the police checked the registration of the car and found out it belonged to Welsh. They went to Welsh’s house, gained entry, and arrested Welsh without a warrant. The Supreme Court held that the warrantless nighttime entry of a suspect’s home to make an arrest for a nonjailable offense is a violation of the Fourth Amendment:

Before government agents may invade the sanctity of the home, it must demonstrate exigent circumstances that overcome the presumption of unrea- sonableness that attaches to all warrantless home entries. An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made . . . [A]pplication of the exigent circumstances exception in the context of home entry should rarely be sanctioned when there is probable cause that only a minor offense has been committed. (p.750)

The majority also cited another case, McDonald v. United States (335 U.S. 451 [1948]), in its decision: “When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant” (p. 460).

Welsh is controversial for at least two reasons. First, it is not always clear what con- stitutes a minor offense. The Court declared that warrantless entry to make an arrest for drunk driving is in violation of the Fourth Amendment, even though drunk driving is considered a serious offense in every state of the union. Second, although the Court did not say so, it implied that warrants are not required for warrantless home arrests in serious cases. The D.C. Circuit’s opinion in Dorman v. United States (435 F.2d 385 [D.C. Cir. 1970]) highlighted seven factors that may permit warrantless entry, only one of which is an exigency discussed thus far:

• The offense is serious. • The suspect is believed to be armed. • The police have a high degree of probable cause for arrest. • There is an especially strong reason to believe the suspect is on the premises. • Escape is likely. • The entry can be made peaceably. • The entry can be made during the day.

Various lower courts have applied these criteria in their decisions (e.g., United States v. Reed, 572 F.2d 412 [2nd Cir. 1978]; State v. Gregory, 331 N.W.2d 140 [Iowa 1983]), but it is doubtful that the Supreme Court would uphold any one of the criteria besides the fifth and possibly the second.

Summary. The common types of exigent circumstances recognized by the courts include hot pursuit, threats to persons, and threats to evidence. Warrantless action

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Carroll v. United States (267 U.S. 132 [1925])

based on a hot pursuit exigency is constitutional only if the police have probable cause to believe any of the following:

• The person they are pursuing has committed a serious offense. • The person will be found on the premises the police seek to enter. • The suspect will escape or harm someone or evidence will be lost or destroyed. • The pursuit originates from a lawful vantage point. • The scope and timing of the search are reasonable.

In situations in which the hot pursuit exception does not apply (and, presumably, the automobile and search incident to arrest exceptions do not apply), a warrantless search for evanescent evidence is permissible when (1) there is probable cause to believe that evidence will be destroyed, lost, or devalued; (2) the procedures employed are reasonable; and (3) the exigency was not police created. A broad interpretation of the latter condition suggests that the same applies in the case of hot pursuit, but the Supreme Court has not ruled on the problem of police-created exigencies. Also, a warrantless search is permissible absent hot pursuit or the potential for damage or destruction to evidence if probable cause exists to believe a person on the premises is in imminent danger of death or serious bodily harm.

Automobile Searches

In the landmark case of Carroll v. United States (267 U.S. 132 [1925]), the Supreme Court carved out an automobile exception to the Fourth Amendment’s warrant requirement. The Court declared that the warrantless search of an automobile is permissible when (1) there is probable cause to believe the vehicle contains evidence of a crime and (2) securing a warrant is impractical. Carroll, which was decided in 1925, resulted from the vehicle stop of a suspect who was known to have previously engaged in the sale of bootleg whiskey (i.e., during Prohibition). A warrantless search of the car revealed 68 bottles of illegal liquor. The Supreme Court upheld the warrantless search on the grounds that the evidence would be lost if the police had been required to take the time to secure a warrant.

DECISION-MAKING EXERCISE 5.6

Police-Created Exigencies

The police knocked on the door of Patrick Warner, whom they suspected was an armed and dangerous narcotics dealer. When Warner came to the door, the police ordered him to place his hands on the glass door and then to slowly reach down and unlock it. Warner said he did not have a key and would need to go to another room to obtain one.

Believing he would retrieve a gun from the other room, the officers kicked down the door and entered as the suspect retreated to another room. Once inside, the officers con- ducted a protective sweep of the apartment. During the course of the sweep, they found bales of marijuana. Were the entrance and the sweep justified?

DECISION-MAKING EXERCISE 5.5

Exigent Circumstances and the Severity of the Offense

Brian Corman was suspected of burglarizing an apartment while no one was home and stealing a checkbook and a television. But apparently, someone in the apartment com- plex witnessed Corman leaving the victim’s unit and called the police. Officers responded and confronted Corman at

the door to his apartment, which was in the same building. Without a warrant, the officers then entered Corman’s apartment, searched it, found the items stolen in the burglary, and arrested him. Are these actions constitu- tionally valid?

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Chapter 5 • Searches and Arrests without Warrants 161

Note that Carroll deals with vehicle searches, not stops. A different standard is applied to vehicle stops, which are discussed in a dedicated section in Chapter 6.

RATIONALE Three arguments can be offered in support of the automobile exception. First, because of the inherent mobility of vehicles, it is impractical to obtain warrants. According to the Court in Carroll:

The guaranty (sic) of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality in which the warrant must be sought. (p. 153)

The second reason for the automobile exception focuses on people’s reasonable expectation of privacy. In particular, because vehicles are typically operated in public spaces, a lesser expectation of privacy is enjoyed. As the Court observed in Cardwell v. Lewis (417 U.S. 583 [1974]), people have a lesser expectation of privacy in an automobile because it serves a transportation function, not a privacy function; a car “seldom serves as one’s residence or the repository of personal effects” (p. 590). Also, people have a lesser expectation of privacy in their automobiles because by their very nature, automo- biles travel “public thoroughfares where [their] occupants and [their] contents are in plain view” (p. 590).

The third reason for the automobile exception hinges on the government regulations to which vehicles are subjected. The old adage that “driving is a privilege, not a right” applies in this context. The Court’s opinion in United States v. Chadwick is illustrative. There, in deciding that the warrantless search of a man’s footlocker, based

Because vehicles are operated in public spaces, a lesser expectation of privacy is enjoyed, which means warrantless searches may be allowed.