Warrant Exceptions or Permissible Warrantless Search Situations

The Court has stated repeatedly over the decades that searches and seizures conducted without warrants are presumptively unlawful. The Court has also, however, created several exceptions to the warrant requirement. We will spend the next several chapters exploring these exceptions.

One way to think about situations in which warrantless searches are permissible is to place these situations in categories.  One common way to categorize these situations is presented in the following list:

• Plain View Doctrine (evidence in plain view of officer in location where officer is legally permitted to be)
• Automobile Searches (depending on circumstances, warrants are not required for certain automobile searches)
• Searches Incident to a Lawful Arrest (after arresting an individual, officers can search the individual and look around the immediate area of the arrest to make sure there is no weapon within reach of the individual and no evidence that the arrestee might destroy)
• Consent Searches (individuals with authority over a location or apparent authority over a location can give a consent to a warrantless search if the consent is voluntary)
• Exigent Circumstances (officers can conduct searches without a warrant in urgent situations with immediate risks of danger to the officers or others, or certain risks of immediate loss of evidence that would occur through the delay involved in getting a warrant)
• Special Needs Beyond the Normal Purposes of Law Enforcement, also known as the “Special Needs” category for searches, with the searches limited in nature based on the justification for the search (border entry points, airports, drug testing of certain categories of people, entry points for sporting events and concerts, drunk driving and immigration checkpoints, DNA tests of arrestees for violent crimes, etc.)
• Stop and Frisk searches based on officers’ observations of potential criminal conduct and dangerousness of an individual; often called “Terry searches” after the original Supreme Court decision in Terry v. Ohio (1968)
• Administrative Searches, typically for health and safety purposes, such as building code inspections, restaurant inspections for compliance with public health codes, etc.

For every warrant exception, students should consider: (1) when the exception applies and (2) what the exception allows police to do. In particular, students should note whether probable cause is necessary for the exception to apply and, if not, what other quantum of evidence is required.

In this chapter, we consider the “plain view exception” and the “automobile exception,” each of which has grown over time. In our first case, the Court considered both exceptions.