What are the exceptions to the Fourth Amendment warrant requirement?

If police violate your Fourth Amendment rights by failing to get a warrant before searching your property or person, the remedy is usually the exclusion of any evidence that was illegally seized. But how do you know if there is a Fourth Amendment violation or if law enforcement’s actions fall under one of the many exceptions to the Fourth Amendment?

I’ve often said that the exceptions have swallowed the rule when it comes to Fourth Amendment protections – below, I’ve listed most of those exceptions.

What do they have in common?

Convenience to the government…

When it is convenient for the government to disregard the Fourth Amendment’s warrant requirement, the courts have found exceptions to make law enforcement’s job easier…

Consent

Police officers know that the easiest way to get around the Fourth Amendment’s warrant requirement is to get your permission to search without a warrant.

They don’t have to tell you that you have a right to refuse consent to search, and, to an extent, they are permitted to pressure you to give consent.

This is why law enforcement almost always begins a search by asking for consent. For example, during a traffic stop, the officer will give you some version of, “We’ve had some issues with drugs and guns out here on the interstate. You don’t mind if we have a look in your car, do you?”

If the police want to search your home, they will usually ask for consent to search first. Even after getting a warrant, they will still attempt to get you to sign a consent form to “lock in” the legality of the search.

Never consent to search. Not your car, not your home, not your pockets. Police expect you to consent, it encourages them to continue searching people or their vehicles without probable cause, and it will eventually lead to the end of your Fourth Amendment rights.

Even if you have nothing to hide, every person should say, “No, you don’t have permission to search. I would like you to respect my privacy.”

Automobile Exception

Police do not need a search warrant to search your vehicle. Do not consent to the search, but you should also never say, “Go get a warrant,” while refusing to open your car window or step out of the vehicle. I repeat, police do not need a search warrant to search your vehicle.

They do need probable cause (or reasonable suspicion in some cases), but the courts will be able to review the officer’s determination of probable cause later.

The officer must be able to make that determination of probable cause on the roadside because of the danger of a person hitting the gas and leaving the scene. Mobile vehicles can easily be used to escape and to destroy evidence, and, with few exceptions, police do not need to go get a warrant.

Search Incident to Arrest

If police intend to arrest someone, there is an exception to the Fourth Amendment that allows them to search the person and the immediate area around the person without a warrant.

Searches incident to arrest are not valid if the police are searching an area that is secured from the suspect and if no evidence of the crime charged could reasonably be found (see Arizona v. Gant).

Inventory Exception

If police are arresting someone and that person’s vehicle is going to be towed, police can search the vehicle without a warrant because the towing company will eventually search it anyway to take an inventory of its contents.

Inevitable Discovery

Similar to the inventory search exception, the “inevitable discovery” exception applies when the discovery of the evidence would have been inevitable regardless of whether the police sought a search warrant.

Plain View Exception

If contraband or evidence of a crime is in “plain view” when the officer is in a place they have a right to be, they can seize the evidence without first getting a warrant under the “plain view” exception to the Fourth Amendment’s warrant requirement.

For example, if police see drugs on a car seat through the window during a traffic stop, they can seize the drugs (and then search the car because there is now probable cause to search for more drugs).

On the other hand, if police have to walk into someone’s back yard without a warrant to see drugs on a table through the kitchen window, the plain view exception does not apply.

Plain Feel Exception

Similar to the plain view exception, if an officer does a Terry frisk or “pat down” based on reasonable suspicion, and they feel something that is obviously contraband, they can retrieve that item and seize it.

Terry Stops/ Terry Frisk/ Terry Search

If the police have a reasonable suspicion that a person is armed and may be dangerous to the officers, they can do a “pat down” to look for weapons pursuant to Terry v. Ohio.

Hot Pursuit

If police are chasing someone and the suspect runs into a house, police ordinarily do not need to get a search warrant to enter the home without a warrant and make an arrest.

But see Lange v. California – whether a warrantless entry is justified by hot pursuit or other exigent circumstances depends on the nature of the offense and the likelihood of further pursuit, destruction of evidence, or danger to the officers.

Exigent Circumstances

“Bob, I think I hear a baby crying. You hear that?” “Yep, I hear it,” Officer Bob says as they crash through the suspected drug dealer’s front door…

“Exigent circumstances” is a catch-all phrase that allows police to enter a home without a warrant when getting a warrant is dangerous or when a bonafide emergency makes getting a warrant impractical.

Examples may include hot pursuit, the potential destruction of evidence, danger to the officers, or when a person inside is being hurt.

Protective Sweeps

If the police make an arrest at a residence, they can do a “protective sweep” of the property to ensure that there are no bad guys with guns hiding in a closet that could shoot the officers.

Of course, if they see contraband while doing a protective sweep, they can then seize it without getting a warrant first under the plain view exception…

Open Fields

The courts have held that there is a lesser expectation of privacy in “open fields.” Therefore, police do not need a search warrant before looking for contraband or evidence in an “open field,” even though it is private property.

Special Needs Exceptions

The “special needs” exception to the Fourth Amendment’s warrant requirement covers situations where the government identifies a “special need” that, in the government’s view, is more important than the Fourth Amendment’s protections.

In other words, when it is inconvenient for the government (police) to get a warrant, then the government (the court) gives the government permission to ignore the Fourth Amendment…

• Probation and Parole Searches – courts have held that people who are on probation, parole, or supervised release do not have the same expectation of privacy as others; therefore, agents can search them or their property without a search warrant.
• School Searches – children are not given the same rights as adults in our criminal justice system, and school searches without warrants are just one example. They’re just kids, and schools must keep order, therefore the Fourth Amendment does not apply to them.
• Administrative Searches – government investigators who are searching a property for “regulatory purposes” do not need to get a search warrant – for example, arson investigators who are inspecting a property after a fire or DHEC inspections of a restaurant.
• Sobriety Checkpoints – the federal courts have held that sobriety checkpoints are constitutional if their primary purpose is not crime enforcement (their primary purpose is always crime enforcement, and this is a judicial lie, FYI).
• Border Patrol Checkpoints – the border patrol can also set up checkpoints if their primary purpose is not crime enforcement (another judicial lie – apprehension of illegal immigrants is crime enforcement).
• Border Searches – searches at the border (including airports) do not ordinarily require probable cause, although reasonable suspicion is required for some searches. (Like strip searches and body cavity searches. They can do that based only on reasonable suspicion and without probable cause.)
• Foreign Intelligence Surveillance – when surveillance is done on agents of foreign governments (or the Americans talking to them), law enforcement does not have to get a warrant (FISA).

Criminal Defense Lawyers in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts.

If you have been charged with a crime or believe that you are under investigation in the Charleston, Georgetown, or Myrtle Beach areas of SC, call now at (843) 808-2100 or send an email to schedule a free consultation.