Under the 4th Amendment to the U.S. Constitution, law enforcement is required to obtain a warrant before conducting a search or seizure of persons or property, including homes, cars, etc. However, this rule is swallowed by its many exceptions: emergency situations or exigent circumstances, plain view, search incident to arrest, consent to search, automobile searches.
EXCEPTIONS TO THE WARRANT REQUIREMENT
In this legal article, our experienced Philadelphia criminal lawyer discusses the most common exceptions to the warrant requirement:
- emergency or exigent circumstances,
- plain view,
- search incident to arrest,
- consent, and
- automobile searches.
Philadelphia criminal lawyer David S. Nenner speaks with reporters. Nov. 29, 2017 *Photo credit – Philly.com
Police officers are allowed to enter property or conduct a search if there’s an emergency need or exigent circumstance. The most common examples involve entering a home to prevent the destruction of evidence or entering a home to prevent an assault. For example, a police officer is conducting a routine patrol when he hears screaming and multiple gunshots from a home. The officer could enter the home to render aid.
When a police officer is carrying out their duties or is lawfully present on property, anything illegal the officer views in plain sight can be seized. For example, a police officer is responding to a theft at an apartment. When the officer is invited into the home to take information for a police report, the officer sees a gun lying next to drug paraphernalia. The officer can arrest the occupant and seize the gun and drug paraphernalia.
Search Incident to Arrest
When a police officer arrests an individual, the individual and their personal effects may be searched not only for safety reasons, but also for inventory purposes. For example, a police officer arrests an individual after witnessing a drug transaction on the street. The officer searches the individual’s pockets and finds a gun in a jacket pocket. The gun can be validly seized.
Many individuals who are being questioned by police will consent to entry or search of their property, including a home or car. It is actually very common for someone to consent to search even if they have illegal items in their possession. The fear of saying no to an officer is often enough to induce someone into consenting.
Related: Pennsylvania Search & Seizure Law in Criminal Drug & Gun Cases in Philadelphia – Collective Knowledge Doctrine [What’s the collective knowledge doctrine and when does it apply in criminal drug and gun cases in Pennsylvania? Officers in the same unit or part of the same investigation share collective knowledge, even if there’s no evidence that one officer tells another officer about some critical aspect of a case. This applies to all search and seizure cases including stop and frisk, emergency or exigent circumstances, etc.]
Because cars are by their very nature, mobile and any evidence in a car can be destroyed or moved, courts have carved out a large exception to the warrant requirement. Car searches and seizures of illegal items such as drugs or guns are some of the most common issues raised in motions to suppress evidence. Unfortunately, warrantless automobile searches are permitted if a police officer has probable cause that an occupant has committed a crime or that evidence of a crime will be found in the car.
A Brief Note About Stop & Frisk
The stop and frisk doctrine is a decades old legal rule that allows police officers to conduct brief pat downs when stopping or questioning an individual. However, it’s not an actual exception to the warrant requirement because there’s no search or seizure occurring. Rather, the rule allows a police officer to conduct a brief pat down, but only if the officer has reasonable suspicion that criminal activity is afoot, i.e., the individual being stopped or questioned is armed or dangerous. Unfortunately, Philadelphia is notorious for these types of stops and for racial disparity in the treatment of African American men.
It’s important to note that criminal law with respect to search and seizure is very complex. There are dozens of nuances or sub rules about the exceptions, when they apply, and when they don’t apply. More importantly, they are highly fact-specific. In addition, the law is always changing. Courts routinely limit or expand an exception. It is crucial to have an experienced criminal lawyer review a criminal case to determine whether any search or seizure was legal.