May 03 2011

13 Legal Warrantless Searches in the United States

If your characters are police officers, warrants are a hassle.  They’re designed to be (so that the police can’t just intrude on citizens’ privacy without cause).  To obtain a search warrant, the police must show a judge that they have “probable cause” (substantial evidence demonstrating that they’re likely to find evidence of a crime at the location or on the person specified on the warrant).

 

Reasons why a character might not be able or willing to obtain a warrant:
 

  • Time.  Under the best of circumstances, a police officer can get a warrant within an hour, but in smaller towns, there might not be any judges on duty in the middle of the night.  Also, judges will be slower to respond if the case is less urgent (i.e. no lives are at stake).
  • The police may not have probable cause yet.  Gotham’s police may find it suspicious that Bruce Wayne always seems to disappear right before Batman shows up, but that isn’t enough to get a search warrant for Wayne Manor.
  • Search warrants come with limits attached.  For example, if the police/district attorney can convince a judge that a murder victim’s body has probably been stashed at a house, the judge would probably allow a search of the house but only places where a body would fit. If the police started searching drawers or other small containers, any resulting evidence would probably be inadmissible.

So let’s say an American police officer doesn’t have a search warrant.  Under what circumstances can he legally search?

 

1.  The suspect voluntarily lets officers inside and/or consents to a search. “Hello, I’m Detective Smith and I have some questions.  May I come inside?”  If an owner lets the officer come inside, anything within plain view of the officer is admissible as evidence.  If an owner consents to a search, anything found is admissible.  Note: Consent must be freely and knowingly given.  If the officer uses deception or threats to obtain permission, any resulting evidence will probably be thrown out at trial.

 

2.  In certain circumstances, permission may be given by a third party. Third parties are almost always more receptive to searches because they have less reason to fear the police than criminals do. 

  •  A spouse (or anybody with equal rights to the property) can let police search.  Frequently, spouses don’t know about the criminal activity and will let the police look around if asked nicely.  One really effective tactic is emphasizing the possibility that the search may help clear the suspect.  (“We’ve received some troubling information about your husband and we’d like to clear his name as soon as possible.  Do we mind if we look around? We’ll leave everything like it was and you can watch us.  Or we can come back with a warrant later, but it’ll be messier”).
  • An employer can let police search a workspace (including lockers and computers).  “We’ve received some troubling information about your employee.  Could we check his computer?  We’ll be real quiet.”  Note that a manager may be leery about offering access if she fears that the company is somehow involved in the crime.  If so, police can gently prod the manager with veiled threats like “We can come back later with a warrant, but if we do, we’ll have to cordon off the building.  It’d be bad for business.”
  • Police can ask school officials for permission to search the lockers, purses and backpacks of minors without a warrant.  School officials don’t have much reason to decline such a request (they hate crime as much as the police do).
  • When a child lives with his parents, a parent can allow police to search the child’s space unless the child pays rent or has otherwise established exclusive, private ownership over his space.
  • A host can allow police to search a guest’s quarters. A landlord cannot.
  • Hotel employees can let police search a vacant room.  See #9 for more details.
  • Store-owners are usually very cooperative about sharing surveillance footage.  But you’ve got to be fast!  Many stores cut down on costs by retaping over old footage every few days.

 

3.  Exigent circumstances–action is immediately necessary to prevent physical harm, preserve evidence or prevent a suspect from escaping. For example, let’s say your officer is on patrol when he hears a scream from inside a building.  He would be entitled to force entry to investigate a possible assault in progress.  Anything he sees in the course of investigating this possible assault would be admissible, even if it wasn’t related to the assault (e.g. drug paraphernalia).


 
4.  Some highly-regulated businesses can be searched without a warrant. For example, gun shops (see U.S. v. Biswell).  In your story, other such businesses might include weapons labs, explosives dealers and anything else with a high potential for public danger.  If you’re writing supernatural fiction, other such examples might plausibly include a magical wand shop, a mad scientist’s lab or a licensed chupacabra dealer.*  (*Bob’s Chupacabra Emporium–For All of Your Goat-Sucking Needs!)
 
5.  Arresting officers are entitled to perform a protective sweep of a property to make sure they’re not about to be ambushed. This is a limited search aimed solely at places where someone might be hiding.   In rare cases, a protective sweep can be performed without an arrest.  See U.S. v. Gould: the police only had enough evidence to question a suspect (rather than arrest him) and were allowed inside to speak with the suspect but he wasn’t there.  Given his assault convictions and run-ins with police, the officers were sufficiently concerned to perform a protective sweep.  They found illegal guns in his closet which were allowed at trial.
 
6.  Hot pursuit. If the police have been continuously chasing a criminal, they are entitled to follow him into a property and search without a warrant.
 
7.  Police don’t need much evidence to justify a patdown/frisking. If the police have reasonable suspicion that the suspect is armed or may be involved in criminal activity, they are entitled to pat down his outer layer of clothing for weapons.  During a frisking, the police are entitled to reach into layers of clothing or to turn out pockets only if patting down the suspect’s clothes revealed something that might be a weapon.  If the possible weapon turns out to be some other criminal evidence (like a burglar’s tool or drugs), it’s admissible.  However, if the object turns out to be a box that may contain criminal evidence, the police would probably not be entitled to open it (see U.S. v. Miles).
 
8.  The police have arrested the suspect. After a legitimate arrest, the police are always entitled to search the suspect.  Unlike a patdown, which is limited to the outer layer of clothing, the police can freely turn out pockets and have the suspect take off a jacket. If the suspect was arrested in his car and the police have probable cause to believe that it contains evidence related to the arrest, they can search the vehicle as well (see Arizona v. Gant).  Searches incidental to arrest are the most common type of unwarranted search. Note that some arrests do not require arrest warrants.  For example, if someone commits a crime within view of a police officer, he can be arrested and searched.  Anything found in this search is admissible, even if it doesn’t pertain to the original crime.

 

9.  The property is abandoned. For example, if somebody throws away drugs when they see a cop coming, the cop doesn’t need a search warrant to pick up the contraband and arrest the suspect.  If the suspect has since vacated a hotel room, the police do not need his permission to search the room.  (They would need to be let in by hotel staff, but that’s usually pretty easy because most hotels don’t like being used as criminal staging grounds).  If the suspect is still staying at the hotel room, the police would need his permission or a warrant.

 

10.  Vehicles entering the United States can be searched without a warrant. In your face, Canadians.

 

11.  The police encounter anything criminal in plain view while conducting legitimate police operations. For example, if a police officer was placing a parking ticket on a windshield and happened to see a bomb inside or smell drugs in the car, he could search the car and seize the evidence.  If the police were driving by a house and happened to hear a crime, they could enter and search the property.  If they had only noticed this crime because they were trespassing on the property, this evidence would probably be thrown out unless they had some legitimate reason to be there (like a warrant).

 

12. Inevitable discovery: Judges may allow evidence from an illegal search if the evidence would have been inevitably discovered by legitimate means.

 

13.  Some forensic evidence can be taken from a suspect without a warrant. For example, if the police bring in a suspect for voluntary questioning and offer him a can of soda, the suspect will throw away the can when he’s done, right? The police can use any saliva/DNA or fingerprints left on the can.  If the suspect signs in to the station, the pen will retain his fingerprints.  (Just make sure to clean the pen beforehand to remove any preexisting fingerprints).   Generally, the police cannot force suspects to give a blood sample without a warrant, but they may be able to do so if exigent circumstances require it.  For example, they could probably compel a driver in a traffic accident to provide a blood sample because they’re looking for evidence that would quickly dissipate (alcohol/drugs in the bloodstream) and waiting for a warrant would result in the destruction of evidence.

 

Disclaimer: This is based on what I learned from U.S. Criminal Procedure, but I am not a lawyer.  For further research, I would recommend checking out beginner-friendly textbooks like Criminal Justice in Action: The Core and Constitutional Law and the Criminal Justice System.  Also, I suspect that the rules are somewhat similar in other democracies, but please check resources geared towards the country your story is set in.

8 responses so far

8 Responses to “13 Legal Warrantless Searches in the United States”

  1. B. Macon 03 May 2011 at 12:35 pm

    PS: Later this month, I’m starting a spinoff website about how to write mystery/detective/crime stories.

  2. Crystalon 03 May 2011 at 1:09 pm

    Cool. Let me know when it’s running – I’ll have to check it out.

  3. Mynaon 03 May 2011 at 4:37 pm

    Whoa, another epic website? Post the link when it’s up, that’ll be really awesome!

  4. Samon 03 May 2011 at 6:55 pm

    I am not a lawyer either, but I do not believe that #8 is correct. In KNOWLES v IOWA, the US Supreme Court ruled that an ordinary traffic stop is not an arrest, and that the police do not automatically have a right to search the vehicle. (see
    http://www.law.cornell.edu/supct/html/97-7597.ZS.html) Plain sight & probable cause exceptions undoubtedly apply, though. And of course, if you consent to it, the officer may search.

  5. B. Macon 03 May 2011 at 7:58 pm

    Oh, bloody hell. You’re right, Sam–the Supreme Court overturned itself recently.*

    Justice John Paul Stevens said in the majority opinion that warrantless searches still may be conducted if a car’s passenger compartment is within reach of a suspect who has been removed from the vehicle or there is reason to believe evidence will be found of the crime that led to the arrest.

    “When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant,” Stevens said.

    Justice Samuel Alito, in dissent, complained that the decision upsets police practice that has developed since the Court, 28 years ago, first authorized warrantless searches of cars immediately following an arrest.

    I’ve corrected the article. Thanks for letting me know.

    *Clearly they don’t have the best interest of police procedural authors at heart! 🙂

  6. cool don 04 May 2011 at 2:27 pm

    Send the link when its ready please bmac

  7. Contra Gloveon 18 May 2011 at 12:08 pm

    B. Mac, you’ll have to add another one to the list.

  8. B. Macon 18 May 2011 at 1:48 pm

    I have included it under #3 (exigent circumstances). The police may act immediately to protect the public, themselves, or evidence. Thanks for the update!

Trackback URI | Comments RSS

Leave a Reply