A Street Guide to Search Warrant Exceptions
Herron, Jeffrey, Law & Order
"The right of the people to be secure in their persons, houses and effects against unreasonable searches and seizures, shall not be violated..." so begins the Fourth Amendment to the United States Constitution.
The authors of the Constitution drafted this statement in order to reach a balance between individual liberties and the rights of society as a whole. Nowhere else is this so important than in the field of criminal justice. As law enforcement professionals we are sworn to protect the rights afforded by the Constitution, but how can we successfully protect those rights while performing our jobs diligently?
Officers must be aware of judicial rulings that have described conditions in which search warrants are not required. These rulings, or search warrant exceptions, can be broken into seven broad generalizations. In order to remember these exceptions officers need only to remember the acronym, PEACHPIT."
Protective sweep is the first exception to a search warrant requirement. An officer may search an area immediately accessible to a person in order to protect the officer from injuries sustained by unseen but easily attainable weapons (wing span). In the case of U. S. v. Rabinowitz the court held that an officer might search the entire area for weapons. This area would include the complete residence. But in 1969 the courts held that the area to be searched must be immediately accessible to the individual.
Chimel v. California narrowed the permissible area to be searched without a warrant. An officer must be able to protect himself from an assault. This exception to a search warrant affords officers the means to protect themselves from hidden weapons and may lead to the finding of additional contraband.
The second letter in our acronym stands for exigent circumstances. Exigent circumstances or any grave emergency may allow an officer to retrieve evidence without having a search warrant. In 1972 in U.S. v. Davis the courts held that an officer might enter into an area and retrieve evidence if that evidence could be destroyed before a properly obtained search warrant could be filed.
An officer may be required to obtain an item of evidence without the protection of a search warrant if it is in the best interest of society. Following an armed robbery, an officer apprehended the subject after a long foot chase but the subject no longer had the pistol used during the robbery. The officer retraced her steps and found the pistol in the subject's yard. The court upheld that the safety of society as a whole, with the pistol unsecured, outweighed the protection afforded to the subject by the Constitution. An officer must be ready to articulate the circumstances that lead up to the emergency that required him to obtain evidence without a search warrant.
The next letter of the acronym stands for arrest, incident to. During an arrest or immediately following an arrest an officer may search an individual for contraband. The arrest may be made with or without an arrest warrant. In 1981 the U.S. Supreme Court held that an officer might, after making a lawful custodial arrest, search the person, the passenger compartment of an automobile, or any closed containers in the subject's immediate control.
The arresting officer may search for evidence relating to the crime committed, means of escape, or any weapons that the subject may have that can be used against the officer. During or after the arrest an officer has the right and authority to perform a search of an arrestee's person or belongings. This exception was allowed in order to protect an officer from assault or the destruction of evidence. All streetwise cops will remember to handcuff first and search second.
"If a person freely and voluntarily gives the police permission to search a particular area, the officer need not have a search warrant and may search for and seize any seizeable object." This statement explains the next exception in our acronym, which is consent. …