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Mudge
08-02-2003, 05:16 PM
PART 1
By: Grendel(bodybuilding.com)

DISCLAIMER

This article does not constitute legal advice and it should not form the basis of any course of action. In all cases, consult with a duly accredited and licensed attorney in your state to determine the specifics of the law as applied to you (in your State). Neither the author nor the publisher intends this article to be anything but published for entertainment and educational purposes and affirm once again that this article is not offering legal advise.

Introduction

Bodybuilders all too frequently run afoul of the law; the current draconian steroid laws make the use and possession of performance-enhancing drugs illegal and punishable by imprisonment. But the reality is that many athletes still choose to risk their freedom in the quest for physical perfection. So be it.

Fortunately, as an American, we have certain freedoms and protections granted us. Learning the boundaries and principles of those freedoms can literally mean the difference between life and death. If you are unfortunate enough to be arrested, it will be the Fourth Amendment to the United States Constitution that can save you. No one understands all the intricacies of the law and of the art of constitutional interpretation, but hopefully this article will give you a working knowledge of what rights and protections you have.

Part I: General Protection Of The 4th Amendment

The Fourth Amendment to the U.S. Constitution provides,


"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
This is the paramount amendment when it comes to your rights of privacy and it is your best defense against police actions and intrusions. The Fourth Amendment applies to searches and seizures of property and to the arrest of persons.

It is important to know, however, that the fact that a person is arrested in a manner that violates the Fourth Amendment makes no difference; a defendant may generally be tried and convicted regardless of the fact that his arrest violated his Constitutional rights.

The Fourth Amendment is most important when evidence is seized as part of a search without a valid warrant, conducted pursuant to an arrest. Then, that evidence will be excluded as inadmissible if the Court finds that the Fourth Amendment rights of the defendant were violated when the evidence was obtained. An example of this would be when the arresting officer did not have probably cause to believe that the defendant was in the course of committing a crime.

Where a search or arrest warrant is issued, the Fourth Amendment requires that the warrant be issued only based on "probable cause." This requirement is quite strictly enforced. A warrant is usually required before a search or seizure takes place, unless there are "exigent circumstances" such as an imminent risk of serious bodily harm or a reasonable belief that a crime is in progress. The resulting search must always be reasonable. An arrest warrant, however, is not usually constitutionally required but all arrests are required to be reasonable.

It is extremely important to know that there is no requirement in the Fourth Amendment that a warrantless search or seizure take place only upon probable cause. That is why police can conduct a brief "stop and frisk" even without probable cause - they are making a Fourth Amendment seizure, but only need reasonable suspicion and not probably cause. This is called a Terry stop, after Terry v. Ohio (discussed later).

Part 1: Areas / People Protected By The Fourth Amendment

A Fourth Amendment search or seizure only takes place when a person's "reasonable expectation of privacy" has been violated. Katz v. U.S In Katz, FBI agents placed electronic eavesdropping equipment on the outside of a public telephone booth from which Katz, a bookmaker, conducted his business. The Court held that even though Katz made his phone calls on public property, and the agents did not commit trespass in installing their devices, D's reasonable expectation of privacy was violated, so the agents conducted a valid Fourth Amendment search. Remember that "The Fourth Amendment protects people, not places."

If you are walking around town with a machine gun and a kilo of cocaine in plain view of everyone walking by, you are not making any attempt to preserve your privacy. This is a silly and extreme example, but conversations that take place in public, where they could be overhead, would not be protected. Cellular phone conversations, which can be listened to by anyone with a radio, are not protected nor are most internet-based forms of communication.

Your conduct forms the basis of what a reasonable expectation of privacy is, based on your particular situation. If your conduct does not demonstrate an expectation of privacy, then the Fourth Amendment provides you no protection from search and seizure.

The Two Tests

For you to get Fourth Amendment protection in a particular situation, two tests must be satisfied:


You must show an actual, subjective, expectation of privacy; and
Your expectation must be one that society recognizes as being "reasonable."

Some types of evidence that are likely to be found not protected by any "reasonable expectation of privacy" are:

Abandoned property , such as trash; [So, if you throw out your empty steroid vials, used needles, or other drug-related waste, you are exposing it to plain view]
Something that can be seen from an aerial overview, or from the perspective of a person stationed on public property;
Things a person says or does while in public; [This could include locker room conversations, but even more generally conversations you have on a cellular phone while walking or driving]
Information the police learn by use of other senses while the police are in a place they have a right to be (e.g., the police use dogs to smell luggage in airports and, thus, detect drugs or food products; the beagle is the food product sniffing dog).
Your Home

Classically, your home is given the highest degree of Fourth Amendment protection; the "reasonable expectation of privacy" concept is intrinsically linked with something called curtilage. The curtilage of a building typically refers to the land and associated buildings that are around your home. In the case of your average private resident, for instance, the front and back yard and garage would all be included in the curtilage.

In general, you automatically have a reasonable expectation of privacy for things inside the curtilage, but not with respect to open areas outside the curtilage. The classic example is the person who puts up a high wall around his yard, but grows marijuana behind it. If a police officer climbs over the wall and sees the marijuana, the officer has violated the "farmer's" expectation of privacy.

But, if the crop is in plain view and the police officer has the right to be in position to have that view, then the police officer does not generally commit a Fourth Amendment search. This is the "plain view doctrine."

Police Using High Tech Tools

The next logical question is what about if the police use high-tech tools to see areas that would normally not be visible. Typically, the "plain view" doctrine will often apply when the police employ the following types of sense-enhancing devices.


Flashlights: A police officer, standing on public property, using a flashlight to obtain a view of defendant or his property will not be a Fourth Amendment search. Texas v. Brown
Electronic Beeper: The police may attach an electronic "beeper" on a vehicle - similar to the LowJack device- and use the beeper to follow the vehicle - this does not violate the driver's reasonable expectation of privacy, and thus does not constitute a Fourth Amendment search.
Aerial Observation: When the police use an aircraft to view D's property from the air, anything the police can see with the naked eye falls within the "plain view" doctrine (as long as the aircraft is in public, navigable, airspace). California v. Ciraolo and Florida v. Riley
Plain View

From the various holdings of Courts across the United States it seems likely that the same "plain view" rule applies to senses other than sight such as touch, hearing or smell. For instance, if a police officer (or a dog being used by an officer) smells contraband while standing in a place where he has a right to be, no Fourth Amendment search has taken place. There also seems to be a "plain touch" doctrine.

For instance, if an officer is conducting a legal pat-down of a suspect under the "stop and frisk" protocol and feels something that the officer suspects is contraband (like a pipe, syringe, or weapon), the officer may probably seize it under a "plain touch" analog to the plain view doctrine. But this "plain touch" doctrine applies only if the police have the right to do the touching in the first place (just as the "plain view" doctrine applies only where the police have the right in the first place to be in the position from which they get the view). It is super important to keep in mind that the police officer has to be lawfully in position to see (or touch) the area.

Never forget that the plain view doctrine applies not only where the police obtain a view from public property, but also where they are lawfully on the owner's property. If the police come to your house to make a lawful arrest of you, any observation they make while in the ordinary process of arresting you does not constitute a Fourth Amendment search. (But this does not allow the police to open closed containers or packages while they are making the arrest, or even move items to get a better view - this would not fall within the plain view doctrine, and would be a Fourth Amendment search.)

This means that if the cops were to bust into your home, responding to sounds of a fight inside, they would not be able to open your mail, unlock your bedroom door, or do anything other than arrest you ... but if you have contraband on your table and the cops have to walk right by the table to get to you, guess what ... you are probably screwed.)

Guest Rights

As social animals, we frequently have people staying with us and our friends tend to have our habits and hobbies. I know lots of bodybuilders who travel with a pretty extensive collection of "supplements"; what would their privacy rights be like if they spent the night at my house? Or, conversely, what rights of privacy do you have if you are visiting someone else (and, what if to make matters worse, the person you are visiting is a felon and subject to random searches?)

Typically, guests in a person's house may or may not have a legitimate expectation of privacy in the premises being visited. An overnight social guest normally has a legitimate expectation of privacy in the home where he is staying. Therefore, the police may normally not make a warrantless arrest or warrantless search of the premises where the person is staying as an overnight guest. (But if the owner of the premises consents to a search, the guest is out of luck. Minnesota v. Olson )

A social guest who is not staying overnight probably also has a legitimate expectation of privacy in the premises, though the Supreme Court has not definitively decided this question yet.A guest who is at the premises on business is less likely than a social guest to be found to have a legitimate expectation of privacy in the premises. Where the business visit is a relatively brief one, the court is especially likely to find that there is no legitimate privacy expectation.

Translation? You probably have some degree of privacy when you travel for recreation, and less of an expectation of privacy if you are on a business call. Likewise, if you just pop over for some winstrol, you have a lower expectation of privacy. It seems to me as if the closer you, the guest, are to being a member of that household the more privacy you can expect. Don't go quoting me on that point of law, that's just what I see as being the philosophy behind the privacy elements of being a guest.

In any case, if you keep your contraband inside a closed container that is exclusively in your possession (i.e. a suit case) you would probably be manifesting a subjective and objective expectation of privacy that society would be willing to accept as reasonable. The lockbox is the bodybuilders best friend.

Part II: Defining Probable Cause And Relating It To Arrests

If you have ever watched a television show about crime, you have heard the term "probable cause" thrown around like some sort of grenade. Probable cause is essentially the requirements needed for a police officer to proceed with a search, seizure, or arrest. Probable cause is basically proof that something bad could be happening and so someone should investigate.

The requirement of "probable cause" applies to two different situations:

Before a judge or magistrate may issue a warrant for a search or arrest, she must be satisfied that probable cause to do so exists;
Before the police may make a warrantless search or arrest (permissible only in special circumstances described below), the officer must have probable cause for that search or arrest.
Only case (1) above -- the requirement of probable cause prior to issuance of a warrant --is expressly covered in the Fourth Amendment. But the Supreme Court has, in its role as interpreter of the Constitutional, held that probable cause must exist before a warrantless search or arrest as well, to avoid giving the police an incentive to avoid seeking a warrant. The meaning of the term "probable cause" is not exactly the same in the search context as in the arrest context.

Probable Causes For Arrest

In order 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;
The person to be arrested committed the violation. The burden of proof, what degree of certainty is needed, is not as high at this stage because all that is going to happen is the cops are going to go and search the property - no one is going to be punished yet so a lower standard of proof it used.
Probable Causes For Search

In order for there to be probable cause to search particular premises, it must be more likely than not that:


The specific items to be searched for are connected with criminal activities;
These items will be found in the place to be searched.
Again, these are pretty general and easy to met if the cops have done any home work at all. It is usually easy for an officer to get a warrant, especially in drug related offences. I looked to see if there were any cases were cops had used the fact that a person got a ton of mail from overseas as a predicate to ask for a search warrant but I didn't find any cases that seemed relevant. But there is a big difference between what will arouse a cop's interest in you and what will serve as a basis for a search warrant to be issued.

Any trustworthy information may be considered in determining whether probable cause to search or arrest exists, even if the information would not be admissible at trial . Probable cause for the issuance of a warrant must be judged only by reference to the facts presented to the magistrate who is to issue the warrant. (Usually, information for a warrant will be in the form of a police officer's affidavit, not oral testimony.)

When the information on which probable cause is based comes from informants who are they themselves engaged in criminal activity, courts closely scrutinize the information. Whether the informant's information creates probable cause for a search or arrest is to be determined by the "totality of the circumstances. " Illinois v. Gates

Evaluation Of Informat

The magistrate should consider two factors in evaluating the informant's information:


Whether the informant is a generally reliable witness; and
Whether facts are set forth showing the informant's "basis of knowledge ," that is, the particular means by which the informant came upon the information that he supplied to the police.
Where the police procure information from non-criminal sources (e.g., ordinary citizens, victims of crime, etc.), the courts are more lenient concerning the information than where it comes from, say, informants who are they themselves criminals. But where an officer making an affidavit for a warrant (or making a warrantless search or arrest) acts in response to statements made by other police officers, probably the arrest or search is valid only if the maker of the original statement acted with probable cause.
Search Warrants

A search warrant must be issued by some sort of judicial officer, usually either a judge or a magistrate. (We'll use the term "magistrate" here.) The magistrate must be a neutral party, detached from the law-enforcement side of government. Normally, the police officer seeking a search warrant must put the facts establishing probable cause into a written, signed, affidavit .

The proceeding for issuing a warrant is ex parte. That is, the suspect whose premises are to be searched does not have the opportunity to contest the issuance of the warrant; only the police officer's side of the story is heard by the magistrate. (However, the suspect, if he becomes a criminal defendant, will eventually have a chance to show, at a suppression hearing, that the warrant was issued without probable cause.)

The Fourth Amendment requires that a warrant contain a particular description of the premises to be searched, and the things to be seized. This means that the warrant must be specific enough that a police officer executing it, even if she had no initial connection with the case, would know where to search and what items to seize. The description of the place to be searched must be precise enough that the officer executing the warrant can figure out where to search. For instance, if the search is to be in an apartment building, the warrant must probably contain the name of the occupant, or the number of the particular apartment, not merely the address of the entire building. The things to be seized must also be specifically identified in the warrant.

The warrant must be very specific. A typographical error could save your ass - if the warrant is for Apartment B and you are in Apartment A, guess what! Invalid warrant invalid search and probably major suppression of evidence. Likewise, the areas to be searched need to specifically named but the cops can always call the Magistrate and get a second warrant for a new area of the house (i.e. they figure out you have a floor safe). A cop might try to talk you into letting them search an area by saying, "oh, we can just call in for a warrant anyway" Good! Make them do it.

Any item that is the subject of a valid search warrant may be seized by the police executing the warrant. In particular, this rule means that even items whose only interest to the police is that they incriminate the defendant may be seized. Warden v. Hayden Even items, such as documents, that contain incriminating statements made by the defendant may be seized - this does not violate the defendant's Fifth Amendment privilege against self-incrimination. Andresen v. Maryland

Fourth Amendment Searches

The Fourth Amendment permits searches to be made of the premises of persons who are not criminal suspects, if there is probable cause to believe that the search will produce evidence of someone else's crime. Such a search of a non-suspect's premises may be made even if a subpoena would be equally effective. Zurcher v. The Stanford Daily This means if you are driving a car with a known felon and you are stopped, the officer can search the whole vehicle and even your person if they believe that you might be "holding" for the felon . This could mean your girlfriend gets searched when you get pulled over or they might go to her house to look for evidence of your criminal activity. That is a good reason to keep business and family completely separated.

The Fourth Amendment requires that the procedures, which the police use in carrying out a search, not be "unreasonable." So in general, the police may not behave in an unduly intrusive manner or be abusive, rude, harassing, etc. As a general rule, the officer executing the warrant must announce that he is a law enforcement officer, that he possesses a warrant, and that he is there to execute it. This is a show of authority.

Thus usually, the police may not forcibly break into the premises to be searched unless they have first announced their presence. However, you would be surprised what constitutes "announcing police presence"; some States allow the cops to say "Police! We have a warrant, open up…" - then they wait a few seconds (five) and smash down the door with a ram!

Knock And Announce Policy

However, the Supreme Court has recognized at least one exception to the knock and announce policy: officers may constitutionally enter without first identifying themselves if the circumstances pose a threat of immediate destruction of evidence. Ker v. California Similarly, lower courts have held that the possibility of physical danger to the police sometimes justifies unannounced entry.If the officer identifies himself, and is then refused entry (or gets no response), he may use force to break into the premises.

Assuming that the police have only a search warrant, and not an arrest warrant (or probable cause to arrest anyone), the police may not automatically search everyone found on the premises. If the police have probable cause to believe that an individual has on his person items that are named in the search warrant, they may search him. Similarly, if a person attempts to leave during a premises search, and the items being sought are of a type that might be easily carried away, the police may probably temporarily detain the person to make sure he is not carrying the items away.

But where a person simply happens to be on the premises to be searched, and appears not to have any connection with the criminal activity giving rise to the search warrant or with items mentioned in the warrant, that person may not be searched or detained. Ybarra v. Illinois If you ever happen to be party to a search and are detained or harassed, you might consult a lawyer about possible civil rights violations (but only if the police were horribly abusive). In my experience (having worked as a police dispatcher for 4 years in College, police have a pretty good eye for who is involved and who is clueless)

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. If the police are properly conducting a search, and come across items that are not listed in the warrant (but that appear relevant to a crime), the police may generally seize the unlisted items. This right is an aspect of the "plain view" doctrine.

Floor Safes, Wall Safes, And Lock Boxes

This is why floor safes, wall safes, and lock boxes are such a pain in cops asses! Arguably they require separate warrants if they were not described in the initial warrant. Granted, it doesn't take too long for the cops to get those new warrants since most modern squad cards have printers hooked up to a computer that can print out valid warrants faxed or phoned in from a magistrate.

The evidence must be sufficiently connected with criminal activity that a warrant could have been procured for it. The items discovered in plain view don't have to relate to the same criminal activity that gave rise to the warrant, as long as there is probable cause for the seizure of these new items. (Example: If the police are executing a warrant naming stolen property, and they come upon illegal narcotics, they may seize the narcotics even though they have nothing to do with the stolen property charge.) It is not required, for application of the plain view doctrine, that the police's discovery of an item in plain view be "inadvertent." Horton v. California

A search warrant can be issued for search of a person, rather than a place. Such a bodily search (whether done pursuant to a search warrant or not) must of course be "reasonable." In general, courts measure reasonableness by weighing the individual's interest in privacy against society's interest in conducting the search. Thus the forcible taking of blood from a drunk-driving suspect, and the use of x-rays and stomach pumping to obtain evidence that the alleged wrongdoer is concealing drugs in his stomach, have been held to be "reasonable" and therefore allowable.

On the other hand, it is not reasonable to place a suspect under a general anesthetic and to remove a bullet lodged deep in his chest, in order to show that the defendant was involved in a particular robbery. Winston v. Lee In fact, at this point, you have begun to leave the 4th Amendment and head towards the 5th Amendment and issues of self-incrimination as well as issues of civil liberties.

Normally, if a search warrant is invalid (e.g., it is not supported by probable cause), any search done pursuant to it will be unconstitutional, and the evidence will be excluded at trial. However, if the police reasonably (but erroneously) believe that the warrant which they have been issued is valid, the exclusionary rule will not apply. Anytime there is any issue of over the validity of the warrant and the evidence obtained pursuant to that search, you should work with your attorney to try to get as much of it suppressed as quickly as possible.

Mudge
08-02-2003, 05:16 PM
DISCLAIMER

This article does not constitute legal advice and it should not form the basis of any course of action. In all cases, consult with a duly accredited and licensed attorney in your state to determine the specifics of the law as applied to you (in your State). Neither the author nor the publisher intends this article to be anything but published for entertainment and educational purposes and affirm once again that this article is not offering legal advise.

Introduction

Bodybuilders all too frequently run afoul of the law; the current draconian steroid laws make the use and possession of performance-enhancing drugs illegal and punishable by imprisonment. But the reality is that many athletes still choose to risk their freedom in the quest for physical perfection. So be it.

Fortunately, as an American, we have certain freedoms and protections granted us. Learning the boundaries and principles of those freedoms can literally mean the difference between life and death. If you are unfortunate enough to be arrested, it will be the Fourth Amendment to the United States Constitution that can save you. No one understands all the intricacies of the law and of the art of constitutional interpretation, but hopefully this article will give you a working knowledge of what rights and protections you have.

Part III: Warrantless Arrests And Searches

The Fourth Amendment mentions warrants specifically, but does not actually require warrants - the amendment merely says that "no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." So under a strict interpretation of the literal text of this amendment, a warrant might never be constitutionally required. But the Supreme Court has interpreted the Fourth Amendment to sometimes require a warrant. In very general terms, the rules for when a warrant is required may be summarized as follows:

An arrest warrant will rarely be required. Only when the police need to enter a private home to make the arrest, and there are no exigent circumstances, does the Fourth Amendment require the police to procure an arrest warrant before they make the arrest.

But just the converse is true in the case of a search: the general rule is that a warrant is required . Only if some special exception applies will the requirement of a search warrant be dispensed with. Some of the more common exceptions are:

A search incident to a valid arrest; [A domestic dispute, a fight, a DUI]
A search motivated by exigent circumstances (e.g., to avoid destruction of evidence);
Certain types of automobile searches (e.g., a search of a car when the driver is arrested and both driver and car are taken to the police station);
Searches done after the person to be searched or the owner of the property to be searched consents; [Bad idea. As much as the cops may try to make you think they are on your side and that consenting and cooperating will make this easy on you, don't believe them. I've been told at point blank range by several cops never to tell a cop the truth and never to cooperate with them, no matter what.]
Partial searches done pursuant to the "stop and frisk" doctrine; and
Certain inspections and regulatory searches (e.g., immigration searches at U.S. borders, sobriety checkpoints on highways, etc)
The fact that in a particular situation no search warrant is required does not necessarily mean that probable cause is not required. In some but not all of the above listed situations (e.g., exigent circumstances), the police must have probable cause to believe that a search will furnish evidence of crime, even though they are not required to get a warrant. In others of the above situations, something less than probable cause, and perhaps no real suspicion at all, will be needed. (Example: Less than probable cause, but some suspicion, is required for "stop and frisk," whereas no suspicion is required for a consent search).

Warrantless Arrests

An arrest warrant is not generally required by the Constitution. This is true even where the police have sufficient advance notice that procurement of a warrant would not jeopardize the arrest. (U.S. v. Watson) The only situation in which an arrest warrant is likely to be constitutionally required is where the police wish to enter private premises to arrest a suspect. In that instance, the requirement for a warrant will depend on whether exigent circumstances exist. If there are no exigent circumstances, the police may not enter a private home to make a warrantless arrest. (Payton v. New York)

A warrantless arrest made in violation of Payton will not prevent a suspect from being brought to trial (since he can always be re-arrested after a warrant has been issued). However, if the police make an in-house arrest that required a warrant because there were no exigent circumstances, then any evidence seized as a result of a search incident to the arrest will be excluded. If there are exigent circumstances, so that it is impractical for the police to delay the entry and arrest until they can obtain an arrest warrant, no warrant is necessary (at least if the crime is a serious one, such as a felony.

For instance, if the police reasonably believe that the suspect will destroy evidence if they delay their entry until they can get a warrant, the requisite exigent circumstances exist. Similarly, if the police are pursuing a felony suspect, and he runs into his own or another's dwelling, a warrantless entry and arrest may be permitted under the "hot pursuit" doctrine. Do you start to see the underlying concern - the police have the ability to act to preserve life and to preserve evidence but they must evaluate the threat on the a reasonable standard.

In addition to the constitutional requirements for arrest warrants described above, many states impose some statutory requirements for such warrants. (Example: Many states allow an officer to make a warrantless misdemeanor arrest only if the misdemeanor was committed in the officer's presence.) The Fourth Amendment also places limits on how an arrest may be made. The main rule is that the police may not use deadly force to make an arrest, if the suspect poses no immediate threat to the officer and no threat to others. (Tennessee v. Garner)


Searches Leading to Arrest

When the police are making a lawful arrest, they may search the area within the arrestee's control. This is known as a "search incident to arrest ". Search-incident-to-arrest is the most important exception to the general rule that a search warrant is required before a search takes place. Only the area that is at least theoretically within the suspect's immediate control may be searched incident to arrest. (The basic idea is that only the area that the suspect might get to in order to destroy evidence or gain possession of a weapon may be searched.)

Again, the idea is to preserve the evidence and keep the officers serving the warrant safe. If you are a visitor, you are probably outside the realm of being searched unless you appear to be hiding evidence or pose a very real and immediate threat to the lives of the officers.

The Supreme Court also upholds "protective sweeps" under the search-incident-to-arrest doctrine. What that means is that where the arrest takes place in the suspect's 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.

But "specific and articulable facts" are not needed for the officers to search in closets and other spaces immediately adjoining the place of an arrest, to make sure that no possible attacker lurks there. Again, the policy here is to protect the police officers and make sure that some assailant lurking in the back yard or back room of the house does not ambush them. However, if the police open the closet to look for a hidden assailant, and find no one, they cannot begin to riffle through the boxes in the closet for more evidence.

Custodial Arrests

Where the police have made a lawful "custodial arrest" of the occupant of an automobile, they may, incident to that arrest, search the car's entire passenger compartment, and the contents of any containers found in that compartment. (New York v. Belton) The right to search the contents of any container found in the compartment means that the police may search closed or open glove compartments, as well as any luggage, boxes, bags, etc. found in the car.

Even if, at the time of the search, the suspect has been placed some distance away from the automobile (e.g., in the squad car), the police may search the passenger compartment - this is true even though there is no practical danger that D will gain a weapon or destroy evidence from within the passenger compartment. The rule that permits a search of the passenger compartment incident to arrest does not cover searches of the trunk of the car. (Maryland v. Buie)

You read that right ... it does not cover the search of the trunk! The trunk is separate locked entity and, because it not accessible to the driver (he can't snatch a pistol from the trunk while sitting in the drivers seat)

For the search to be incident to arrest, it need not be exactly simultaneous with the arrest - a search that takes place some time before or even after the arrest will still be held "incident" to that arrest as long as it is closely connected to it logically speaking. Thus the police may make a search before they arrest the suspect, as long as they already have probable cause to make the arrest and are doing the search in order to protect themselves. Generally, the arrest must follow quite quickly on the heels of the protective search. (Rawlings v. Kentucky)

Similarly, the search-incident-to-arrest exception is applicable even to searches which do not occur until sometime after the arrest, at least where the search is made of objects in the suspect's possession at the time of arrest. Most commonly, the police may arrest the suspect, take control of the objects in the suspect's possession at the time of the arrest, and examine those objects at a later time.

In fact, there now seems to be an "inventory search" exception to the search warrant requirement, which applies even if the search is not, strictly speaking, incident to arrest. That is, the police may take possession of any objects found on D's person at the time of arrest, and examine those objects as a means of conducting an "inventory" of D's possessions. This is true even though a long time elapses between the arrest and the inventory search, even though the police did not have probable cause to search, and even if the police could have obtained a search warrant beforehand and didn't.


Arrest Without Probable Cause

The search-incident-to-arrest exception to the search warrant requirement 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 search-incident-to-arrest rationale, and the arrest must be suppressed unless some other exception to the warrant requirement (e.g., prevention of destruction of evidence) justifies it. But a search incident to arrest will not be invalidated by the fact that the statute violated is later held to be unconstitutional. (Michigan v. DeFilippo)

The search-incident-to-arrest exception seems to apply to arrests even for minor crimes. For instance, if D is arrested for a traffic violation, he may be searched incident to the arrest even though the crime is not an especially "serious" one. U.S. v. Robinson However, for the search-incident-to-arrest doctrine to apply, the arrest must be a "custodial" one. That is, the officer must be planning to take D to the station-house for booking.

An example might help here. Suppose that Chief Wiggum stops Homer, a driver, for driving with an expired registration sticker. Lets say that this is a misdemeanor, and that under local police department procedures, a driver stopped for such an offense is virtually never arrested, but is instead given a summons to be answered at a later date. On these facts, Homer is not really being "arrested," and his body, or his car, may not be searched incident to arrest.

However, even in the case of such a non-custodial stop, a suspect may be required to step out of the car. Once he has stepped out of the car, presumably he may be subjected to at least a cursory frisk under the stop-and-frisk doctrine, discussed below.

Part IV: Exigent Circumstances in More Detail

Even where the search-incident-to-arrest exception to the search warrant requirement does not apply, there may be exigent circumstances that justify dispensing with the warrant requirement. The most common exigent circumstances are:

Preventing the imminent destruction of evidence;
Preventing harm to persons; and
Searching in "hot pursuit" for a suspect.
The police may conduct a search without a warrant provided that they have probable cause, and provided that the search is necessary to prevent the probable imminent destruction of evidence. A warrantless search may be allowed where danger to life is likely if the police cannot act fast. If the police are pursuing a felony suspect, and have reason to believe that he has entered particular premises, they may enter those premises to search for him.

While they are searching for him, they may also search for weapons which, since he is still at large, he might seize. This is called the "hot pursuit" exception to the search warrant requirement. The "hot pursuit " exception is often combined with the "plain view" exception.

That is, while the police are engaged in a hot pursuit of a suspect and any weapons he might have, they may seize any other evidence of criminal behavior that they stumble upon in plain vie One commonly-occurring situation does not automatically constitute "exigent circumstances": where the police are not in hot pursuit, and there are no specific exigent circumstances, the police 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.)

The "Plain View" Doctrine

The "plain view " doctrine is often applied to allow police who are on premises for lawful purposes to make a warrantless seizure of evidence that they come across. For the plain view doctrine to be applied so that a warrantless seizure of evidence is allowable, three requirements must be met:

First, the officers must not have violated the Fourth Amendment in arriving at the place from which the items were plainly viewed. Second, the incriminating nature of the items seized must be "immediately apparent". To put it another way, the police must, at the time they first see the item in plain view, have probable cause to believe that the object is incriminating. Finally, the officer must have a lawful right of access to the object itself . Remember that the plain view doctrine applies even where the police discovery of a piece of evidence that they want to seize is not inadvertent.


Searching Cars

It is crucial to look at the major exceptions to the warrant requirement in the context of automobile searches. Remember though that the general exceptions discussed above will frequently apply in the case of cars: For instance, exigent circumstances will often cause the warrant requirement to be suspended where a car search is involved. Similarly, recall that a car's passenger compartment may be searched incident to the arrest of the driver or passenger.

There are two major automobile-specific exceptions that have developed to the warrant requirement:

When the driver is arrested, the car may be searched at the station-house even without a warrant; and
If the police reasonably believe that a car is carrying contraband, it may be subjected to a full warrantless search in the field. [This can mean drug dogs, x-ray and other scanners, as well as physical searches by officers and trained technicians]
Where the police arrest the driver, take him and his car to the station, and search the car there, no search warrant is generally required. Apparently the police have a right to impound the car after arrest and search it without a warrant even where they had advance notice and could easily have gotten a search warrant before the entire episode. (Florida v. White) This could be very bad!

Where the police have probable cause to believe that a car is being used to transport contraband, and they stop it, they may conduct a warrantless search not only of the car but also any closed containers in the car. They may do this on the scene, without even impounding the car. Once the police have probable cause to believe that the car contains contraband, they may search closed containers inside it that could hold that type of contraband, even if those containers belong to a passenger, and even if there is no probable cause to believe that the passenger has been involved in carrying the contraband or any other illegality. (Wyoming v. Houghton)

Conversely, even if the police's probable cause relates solely to a closed container inside the car, not to the car itself, the police may stop the car and seize and open the container, all without a warrant. (California v. Aceved)

Driver And Passenger Rights

If the driver's conduct leads the police to make a proper stop and/or arrest, this does not mean that the officer has the right to search the person of any passenger who happens to be in the car. No matter what the driver has done, the officer may search a passenger only if the officer has either:

Probable cause to believe that the passenger possesses evidence of a crime, or
Probable cause to arrest the passenger (in which case the search is justified as being incident to arrest).
However, the officer does have several other rights regarding passengers:
As a method of protecting officer safety, the officer may demand that the passenger step out of the vehicle.
Also as a matter of protection, if the officer has a reasonable fear that the passenger may be armed or dangerous, he may frisk and pat-down the passenger, to make sure that the passenger is not carrying a weapon.
Finally, if the officer has the right to search the vehicle, he may as noted above also search any container in the car that might contain the thing being looked for, even if the officer knows that the container belongs to a passenger, and even if the officer has no probable cause to believe that the container contains that thing.
Of the various automobile scenarios that present an exception to the requirement of a search warrant, sometimes probable cause to make the search is required and sometimes it is not: Where the driver is stopped and the police want to search the car on the scene, they will normally need probable cause to conduct that search: belief that they will find either incriminating evidence or contraband.

If the police find evidence in plain view in a vehicle as they are impounding it, they may seize the evidence even though they did not previously have probable cause to search or seize. If the car has been impounded by the police pursuant to standardized procedures, the police may usually conduct a search at the station-house even though they do not have probable cause.

For instance, where a police department routinely tows cars for illegal parking, the police may unlock and search each such towed car in the impoundment lot. (South Dakota v. Opperman) Obviously, you are beginning to see the many dangers inherent in using your car as a storage locker for contraband and, also, the obvious risk in transporting anything illegal in your car.

Similarly, once the impounded vehicle is searched, even closed containers inside it may be subjected to a warrantless and probable-cause-less inventory search. But such warrantless inventory searches must satisfy two conditions:

The police must follow standardized procedures, so that the person searching does not have unbridled discretion to determine the scope of the search; and
The police must not have acted in bad faith or for the sole purpose of investigation. (Example: If the arrest or impoundment took place just to furnish an excuse for a warrantless search, the inventory-search exception will not apply). (Colorado v. Bertine)
Don't make the mistake of thinking that every time the police validly stop a motorist, they may search that motorist's car. There are times when no warrantless search is allowed even though the stop was proper. In particular, if the officer properly stops a car to write a traffic ticket, and does not make an arrest, the officer is not allowed, merely by virtue of the stop, to search the car. This is true even if under local law the officer could have made a custodial arrest for the traffic violation. (Knowles v. Iowa) But, if the cop pulls you over for speeding and smells the odor of drugs, sees a gun on the passenger seat, or some pills on the dash board, that would probably be sufficient probably cause.

Part III to come.