Learning Objectives

  1. Describe the process for obtaining a search warrant, including the information that is required to be included in a valid search warrant.
     
  2. Explain the knock and announce rule, and the circumstances in which the police are not required to knock and announce.
     
  3. Discuss the scope of a search incident to an arrest of an individual, and the circumstances in which the police are justified in searching an automobile based on a search incident to an arrest.
     
  4. Define a pretext arrest, and explain the constitutionality of pretext arrests under the Fourth Amendment.
     
  5. Explain the legal standard for a valid consent search, the standard for determining the scope of a consent search, and the legal test for determining whether or not an individual withdrew consent.
     
  6. Discuss the law on third-party consent.
     
  7. Explain the automobile exception to the Fourth Amendment.
     
  8. List the requirements for inventory searches.
     
  9. Explain the purpose of administrative inspections, and whether these searches require a warrant based on probable cause.
     
  10. Define and list examples of special-needs searches.

 

SUMMARY: The U.S. Supreme Court has held that there is a preference under the Fourth Amendment for searches to be based on warrants founded on probable cause. In the view of the Court, the rights of citizens are more fully protected when the existence of probable cause is determined by a judge rather than by a police officer acting under the pressures of the moment. A magistrate or judge must find that an affidavit provides probable cause to issue a search warrant. The warrant must “particularly” describe the object of the search and the address where there is probable cause to believe that the object is located. The search may extend to any place in a home or structure where the object “may be found.” The police are required to knock and announce their presence in executing a warrant. The knock and announce requirement may be disregarded when the facts and circumstances justify an immediate entry. In such cases, the proper balance between the need of the police to investigate crime and the personal privacy of the individual is struck where there is reasonable suspicion that an announcement of the police presence would be dangerous or futile or inhibit the effective investigation of a crime by allowing for the destruction of evidence.

Despite the preference for warrants, the U.S. Supreme Court has recognized the reasonableness under the Fourth Amendment of a number of warrantless searches. Warrantless searches incident to an arrest are reasonable under the Fourth Amendment when an individual is arrested for a felony or even for a minor misdemeanor. Contemporaneous with the arrest, the police may conduct a search for weapons or contraband on the individual’s person and in the area under his or her immediate control. This protects the officer and prevents the destruction of evidence. In Arizona v. Gant, the Supreme Court held that a search incident to an arrest permits the contemporaneous search of the passenger compartment of an automobile and any containers within the passenger compartment. A search of an automobile incident to an arrest may be undertaken when the

arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. (Arizona v. Gant, 556 U.S. 332 [2009])

A court will not examine the motivation of an officer who executes an arrest. The only question is whether there is probable cause. A “pretext arrest” accordingly does not constitute a defense to an arrest under the Fourth Amendment. An individual may challenge a pretext arrest as a violation of the Equal Protection Clause of the Fifth and Fourteenth Amendments.

A consent search also is reasonable under the Fourth Amendment. The standard is whether the consent is voluntary and is not the product of duress or coercion, express or implied. The prosecution possesses a heavy burden to establish that a consent is voluntary based on the totality of the circumstances. The scope of a consent search is based on what a reasonable person would understand by the exchange between the individual and the police officer. An individual may limit the scope of his or her consent and may withdraw consent by a clear, unambiguous, and unequivocal statement. The Supreme Court has recognized the reasonableness of a third party’s consent when an individual possesses common authority or apparent authority. The Court also has held that there is “no recognized authority in law or social practice” for a third party to consent to a search when a co-occupant is present and refuses to consent.

The automobile exception to the Fourth Amendment warrant requirement permits the police to search a motor vehicle without a warrant. The search may extend to any part of the automobile or container within the automobile where the object of the search may be located. In Chapter Fourteen, we discussed other warrantless searches: plain view, frisks pursuant to reasonable suspicion stops, and exigent circumstances.

An inventory of an automobile and of a suspect’s possessions may be conducted as soon as is reasonable after reaching the station house. An inventory is considered a special-needs search, because it is an administrative procedure that is not intended to investigate a crime.

Administrative inspections to enforce administrative requirements involving health, safety, fire, and other matters require warrants based on a modified probable cause standard. Special-needs searches do not serve the ordinary needs of law enforcement and are intended to promote the safety and welfare of individuals and of the public. The reasonableness of these searches is determined by balancing the interests of the government against the privacy rights of the individual, and these searches generally do not require a warrant or probable cause