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Criminal Procedure - Outline Part 9

By Collin B. Hardee

Download the PDF version of this outline

<< Part 8 | Part 10 >>

Warrantless Entry of the Home

In determining whether exigent circumstances exist, i.e., entering a home without a search warrant, “a warrantless intrusion may be justified by:

  1. Hot Pursuit of Fleeing Felon
  2. Imminent destruction of evidence;
  3. Need to prevent a suspect’s escape; or
  4. Risk of Danger to the Police or to Other Persons Inside or Outside the Dwelling
    • Minnesota v. Olson

Welsh v. Wisconsin (1984) → Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government USUALLY should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.

  • Stanton v. Sims (2013) → A warrantless hot pursuit entry into a residence can be constitutional, even if it is only based on the belief that a minor crime had been committed.

The “Community Caretaking” Emergency Doctrine – Brigham City, Utah v Stuart (2006) → “One exigency obviating (removing) the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury (i.e., an ongoing violence occurring within the home).”

  • “The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee poised to stop a bout only if it becomes too one-sided.”
Searches Incident to a Lawful Arrest Exception (SILA)
  • Pre-Chimel Law on Search Incident to Arrest → When the police validly arrested a person, they could constitutionally search the entire premises where he was arrested, even though they did not have a search warrant (US v. Rabinowitz)
  • Chimel v. California (1969) → The police have a right to search the area within the defendant’s IMMEDIATE CONTROL, but portions of the premises outside of that control could NOT be warrantlessly searched incident to arrest
    • When an arrest is made, it is reasonable for the arresting officer to:
      • Search the person arrested in order to remove any weapons that the suspect might seek to use in order to resist arrest or effect his escape – otherwise the officer’s safety might well be endangered; and
      • Search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction and the area into which an arrestee might reach in order to grab a weapon or evidentiary items
    • There is ample justification for a search of the arrestee’s person and the area within his immediate control, i.e., the area from within which he might gain possession of a weapon or destructible evidence
  • Limited Scope → there is NO comparable justification for routinely searching:
    • Rooms other than that in which an arrest occurs;
    • All desk drawers or other closed or concealed areas in that room itself
Arrest Inventories – Another Warrant “Exception”
  • Any person who will be incarcerated, even temporarily, undergoes a second search: an “arrest inventory.”
  • This inventory search, which occurs without a warrant and in the absence of probable cause, is constitutionally justified on various grounds:
    • To protect the arrestee from theft of his valuables while in jail;
    • To reduce the risk of false claims of theft by the arrestee; and
    • To ensure that contraband and dangerous instrumentalities that might have been missed by the police in the initial search incident to the arrest are not smuggled into the jail
  • Therefore, regardless if you’re searched at the time of the arrest, you’re going to get searched at the time of booking
Search of Items Carried on Person of Arrestee

General Rule → when a search is properly made incident to a lawful arrest, the police may examine items of personal property found on the person of the arrestee

  • Includes Search of Items that are NOT Suspected of Being Weapons or Evidence – the right to examine items found on the arrestee’s person is NOT limited to items that the officer reasonably fear may be weapons or may constitute evidence of crime – rather, ANY physical item found on the person could be searched
    • US v. Robinson (1973) → an arresting officer does NOT need probable cause to believe that the arrestee has a weapon or criminal evidence on his person. The right to conduct the warrantless search is automatic: if the custodial arrest is based on probable cause, no more is needed
      • DO NOT need any other warrant to search things on the person or within the person’s reach (including purses and content of the arrestee’s pockets)
  • Cellphones and their Digital Contents → when the police properly make a custodial arrest on a person who happens to be carrying a cell phone, the SILA doctrine does NOT permit the police to perform a warrantless search of the digital contents of the phone
  • Riley v. California (2014) → the SILA doctrine did NOT entitle the police to examine the digital contents of the cell phones without a warrant, and therefore, the police must obtain a warrant to search the contents of the phone
    • Cell phone data does not fall into the 2 justification (i.e., police safety and destruction of evidence) that Chimel laid out as reason for warrantless searches
    • Black Letter Rule → Answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – GET A WARRANT
    • Other Types of Digital Devices – presumably, rule applies not only to small handheld digital devices, but even to somewhat larger ones – tablets and laptops – found on or near the arrestee
  • Breath and Blood Tests Incident to Arrest (Drunk Driving and SILA) – Birchfield v. North Dakota (2016)
    • Breath Tests Incident to Lawful Arrest → Warrantless breath tests, incident to lawful arrest, are per se constitutional and the State may criminalize the refusal to comply with a demand to submit to the required testing
    • Blood Tests Incident to Lawful Arrest → Warrantless blood tests are NOT justifiable as an incident to a lawful arrest b/c it extracts information that can be preserved and from which it is possible to extract information beyond the driver’s BAC
  • Automobile Searches Incident to Arrest
    • Arizona v. Gant (2009) → the SILA rationale allows a warrantless search of the passenger compartment ONLY IF one of two things is true:
      1. the arrestee has access to the passenger compartment at the moment of the search; OR
      2. the police reasonably believe that the passenger compartment may contain evidence of the offense for which the arrest is being made
        • The Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest ONLY when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search

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