Making Sense of the 4th Amendment Exceptions to the Warrant Requirement on the UBE / MEE

Making Sense of the 4th Amendment Exceptions to the Warrant Requirement

The Fourth Amendment protects citizens from unreasonable government searches and seizures of their persons, houses, papers, and effects.  However, both the U.S. Supreme Court and federal courts have carved out specific, limited exceptions to the Fourth Amendment search warrant requirement, which are commonly referred to as the eight exceptions to the search warrant rule.  

For the UBE, there are EIGHT exceptions that we must know.  We can use the mnemonic device with the term ESCAPIST to help us remember all of these exceptions.  A handy CHART for the exceptions can be found below a brief explanation of each.  ESCAPIST stands for:

E = Exigent Circumstances                     
S = Search Incident to Lawful Arrest                  
C = Consent
A = Automobile                   
P = Plain View                                              
I = Inventory
 S= Special Needs                
T = Terry Stop and Frisk

Let us look at each one of these exceptions individually.

E = Exigent Circumstances
Exigent means emergency, which means under life saving circumstances. The key is time and public need in other words, the officer does not have time to get a warrant, and there is an immediate risk of harm to the public that requires immediate official action.

Another  situation would be one in which public safety is paramount. If officers are being shot at, they may have to conduct a search of premises or a building without a search warrant because both the officers and the public are in imminent danger. Likewise, if an officer has probable cause to believe evidence is going to be destroyed, or if an officer is in hot pursuit of an escaped felon who runs into a house, a warrant is not required. 

S = Search Incident to Lawful Arrest
It is the fact of the lawful arrest which establishes the authority to search, and in the case of the lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under the amendment.

The arrest must be valid under law. For the search without a warrant to be valid, the officer must be able to specifically articulate probable cause that the person committed a crime and there must have been an intention on the part of the officer to arrest prior to the search of the person. What is prohibited is the search of a person who is not yet under arrest in which contraband is found and then an arrest for possession of the contraband based on that search. The search of a person under arrest is subject to the areas under that person s immediate control.

C = Consent
Officers can search without a warrant if they have consent from a person who has the authority to give it. Probable cause is not required if the consent is knowingly and intelligently given.

Age is also considered in legally defining consent. A child can't give consent, so you must know the age a person is considered to be a child in your state. Likewise, a parent may consent to the search of a child s room where no rent is paid, but a hotel manager or landlord may not provide legal consent to search unless the room or apartment is abandoned.  Be careful of reading a fact pattern of someone under the influence of drugs and/or alcohol.  Their consent is generally not valid for purposes of this exception.

A = Automobile Exception
When a police officer arrests a person in a vehicle, the officer may search the vehicle s passenger compartment, including any open or closed containers, but not the trunk.  A warrantless search of a vehicle may be justified if an officer has probable cause to believe the vehicle contains contraband, controlled substances or criminal evidence. The search extends to any container found that might contain the item.   Keep in mind that stopping a vehicle for a routine violation does not mean there s probable cause to believe the vehicle contains contraband, controlled substances or evidence of a crime.

P = Plain View
If an officer is lawfully in a place and has probable cause to believe an item is contraband, stolen, property or other evidence of a crime, the officer can seize it without a search warrant. This is known as the plain-view doctrine.

For this exception to apply, the officer must be lawfully present. the item must be able to be procured through lawful means and the criminality of the item must be obvious. The courts have also repeatedly ruled that officers may use visual enhancement devices, such as flashlights and binoculars. 

I = Inventory of Impounded Vehicles or Person's Belongings
Impounded vehicles may be searched and inventoried using the standard police procedures to secure the vehicles and its contents. This is similar to the caretaker-function exception to the Fourth Amendment.

If an officer found contraband or evidence of a crime during the inventory of the vehicle and had probable cause to believe it belonged to the registered owner or an arrested person, the officer has a basis for an arrest. The court has pointed out that the inventory search cannot be used as a pretext for discovering incriminating evidence, and it s best if a department has written policy requiring officers to inventory all towed and impounded vehicles.

The same is true of a person's personal belongings that are searched upon arrest and detention at a detention facility.

S = Special Needs –
Can be had in one of three ways - (1) Random drug testing such as for railroad employees, customs agents, public school kids.  Can't have a  suspicion-less search where the primary purpose is to gather criminal evidence for the general use by law enforcement; (2) Parolees who MAY be subject to suspicion-less searches of their home and themselves; and (3) School searches which can't be excessively intrusive in light of age, sex, nature of infraction.

T = Terry Stop and Frisks –
A Terry stop is a  BRIEF detention or seizure for purpose of investigating suspicious conduct.  It can take place anywhere.  When is a person considered seized?  When based on the totality of circumstances, a reasonable person would not feel free to leave OR declines an officer's request to answer questions.  We must consider the following factors: (1) Was weapon brandished?; (2) What is the tone and demeanor of the officer?; (3) Was the individual told he or she could opt out?

A Terry frisk constitutes a pat-down for weapons if believed to be armed and dangerous.  Can seize weapons or contraband so long as the officer is not manipulating the object.  A GREAT example of this are drugs within a cigarette pack.  If during a Terry frisk an officer feels what he believes to be a pack of cigarettes he may NOT open the pack to determine if drugs are inside without further probable cause as that is outside the scope of a standard Terry frisk.

As for passengers in a vehicle, an officer can search passenger cabin if he believes a suspect is armed.  Can also engage in protective sweeps in a residence to see if other felons are present.

For more information about the 4th Amendment exceptions to the warrant requirement or the bar exam in general, feel free to email us at PassYourBarExam@gmail.com  

Good luck!  Also:

Here is a very handy chart that I found to determine if one of the above exceptions is applicable to your particular fact pattern: