The following discussion comes from your week 3 readings. Outside research to address these issues is encouraged. I would suggest using the online library for additional sources of information and research. In addition, I would recommend utilizing the legal studies program guide.
The Fourth Amendment protects individuals against unreasonable searches of their property and persons. It also prevents law enforcement from making unlawful arrests/seizures. It requires that all searches be reasonable.
This discussion asks you to examine the requirements for a search warrant and the exceptions to needing a warrant.
Please thoroughly discuss each of the following:
- Discuss when a search warrant is needed by law enforcement.
- Discuss what law enforcement must demonstrate to a judge to have a search warrant issue.
- Discuss the various exceptions to the search warrant requirement. Please include examples of each in your response.
The United States Supreme Court’s Ruling in
Arizona v. Gant
Implications for Law Enforcement Officers
Jennifer G. Solari
Senior Instructor, Legal Division
Federal Law Enforcement Training Center
On April 21, 2009, the United States Supreme Court decided Arizona v. Gant1, in which it
defined an officer’s authority to conduct a search of the passenger compartment of a vehicle after
arresting an occupant or a recent occupant. The Court ruled that officers may search a vehicle
incident to arrest only if (1) the arrestee is unsecured and within reaching distance of the
passenger compartment when the search is conducted; or (2) it is reasonable to believe that
evidence relevant to the crime of arrest might be found in the vehicle. This memorandum
discusses the decision and its impact on law enforcement practices.
The Evolution of Searches Incident to Arrest
Chimel, Belton, and Thornton. The Supreme Court first established the search incident
to arrest (“SIA”) exception to the Fourth Amendment’s warrant requirement in Chimel v.
California, 395 U.S. 752 (1969). Chimel held that police may, incident to arrest, search the area
within an arrestee’s “immediate control,” which is defined as the area from within which the
arrestee might gain possession of a weapon or destructible evidence. The purposes of this
exception are to protect arresting officers and safeguard evidence of the offense that an arrestee
might conceal or destroy. In New York v. Belton, 453 U.S. 454 (1981), the Court was asked to
determine what part of a vehicle officers may search incident to the arrest of one of its occupants.
The Belton Court held that when an SIA of a vehicle is justified, the entire passenger
compartment and any containers therein may be searched. This bright-line rule was created to
avoid arguments about which areas inside a vehicle’s passenger compartment were within an
occupant’s reach. In Thornton v. U.S., 541 U.S. 615 (2004), the Court added that an SIA of a
vehicle may be justified even if an occupant has gotten out of the vehicle, closed the door, and
walked a short distance away before being arrested. The question remaining, however, was
whether Chimel, Belton and Thornton authorized an SIA of a vehicle regardless of the arrestee’s
ability to access the passenger compartment following the arrest. Arizona v. Gant presented a
perfect opportunity for the Court to answer that question.
Arizona v. Gant: The Facts and the Holding
Shortly after parking and exiting his vehicle, Gant was arrested for driving on a
suspended license. He was handcuffed and locked in a patrol car before officers searched the
passenger compartment of his car and found a firearm and cocaine. In his motion to suppress the
evidence, Gant argued that because it was not possible for him to access the vehicle to gain
control of a weapon or evidence, the search of his vehicle was not a reasonable “search incident
The Supreme Court agreed with Gant, emphasizing that Chimel v. California established
the purposes and scope of searches incident to arrest. Chimel authorizes a search of the area
from which an arrestee might gain control of a weapon or destructible evidence; it does not
permit a search of areas outside the arrestee’s reach. Thus, police are authorized to search the
passenger compartment of a vehicle incident to arrest under Chimel only when the arrestee is
unsecured and within reaching distance of the passenger compartment at the time of the search.
With that said, the Court noted, “it will be the rare case in which an officer is unable to fully
effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains.” In such
a rare case, however, an SIA of the passenger compartment would be reasonable under the
In a seeming attempt to garner Justice Scalia’s deciding vote, the majority adopted an
additional search incident to arrest justification entirely apart from Chimel. In U.S. v. Thornton,
Justice Scalia wrote a concurring opinion in which he argued that Chimel should not govern
searches of vehicles incident to arrest because “sensible police procedures” will always prevent
the arrestee from accessing the vehicle.2 Instead, Justice Scalia advocated broader search
authority, which would allow a search of the passenger compartment whenever it is “reasonable
to believe evidence relevant to the crimes of arrest might be found” therein. While his opinion
did not carry the day in Thornton, his search justification was adopted as part of the holding in
Gant. Therefore, in addition to searches justified by the arrestee’s ability to access the vehicle,
officers may also search the passenger compartment following the arrest of a recent occupant
when it is reasonable to believe that evidence relevant to the crime of arrest might be found in
Reading Between the Lines: The Current State of SIAs
Gant will have an immediate impact on the day-to-day operations of law enforcement
officers in the field. It is important to ascertain the effect of the Court’s opinion not only on
vehicle searches, but other searches incident to arrest, as well. Unfortunately, the Court left
many questions unanswered. Although Gant does not provide explicit guidance on some of the
issues below, this article makes an attempt to bring current practice in line with the Court’s
expressed understanding of Chimel, Belton, and Thornton. Of course, officers should always
consult their agency legal advisors to determine how they are to apply the law of their
jurisdiction in accordance with agency policy.
Searches of the Arrestee’s Person: No Change
“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 latter might seek to use in order to resist arrest
or effect his escape. . . . In addition, it is entirely reasonable for the arresting officer to search for
and seize any evidence on the arrestee’s person in order to prevent its concealment or
destruction.”3 “Authority to search the arrestee’s own person is beyond question,”4 and this
authority does not require the officer to articulate any likelihood that weapons or evidence would
be found on the arrestee.5 A custodial arrest supported by probable cause is sufficient
Searches of Containers Located on the Arrestee’s Person: No Change
Containers on an arrestee’s person, such as a wallet7 or a cigarette pack8, are within the
arrestee’s “immediate control” for purposes of a search incident to arrest and may be opened and
examined.9 Belton rejected the argument that the officer’s seizure of an item removes it from
the arrestee’s immediate control and negates the justification to search it: “[U]nder this fallacious
theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing
an article even on the arrestee’s person, an officer may be said to have reduced that article to his
Searches of the “Lunging Area” or “Wingspan” Following a Non-Vehicular Arrest: Justified
If Arrestee Could Access the Area at the Time of the Search
For many years there has been inconsistency among federal and state jurisdictions
regarding searches of a subject’s “lunging area” following a custodial arrest. In most
jurisdictions, arresting officers have been permitted to search the place of arrest and containers
therein even after the arrestee has been secured or removed from the area, so long as the area was
within the arrestee’s control at the time of the arrest.11 The minority approach, however,
requires some showing that the area to be searched was accessible to the arrestee at the time of
the search.12 Furthermore, those minority jurisdictions require that “in determining if an object
is ‘conceivably accessible to the arrestee,’ we are to assume that ‘he was neither an acrobat [nor]
The Gant Court did not specifically address non-vehicular SIAs. The majority, however,
in its examination of Chimel, reiterated that the scope of the SIA exception is limited to serving
the purposes of “protecting arresting officers and safeguarding any evidence of the offense of
arrest that an arrestee might conceal or destroy.”14 Therefore, “[i]f there is no possibility that an
arrestee could reach into the area that law enforcement officers seek to search, both justifications
for the search-incident-to-arrest exception are absent and the rule does not apply.”15 This
language appears to strongly favor the minority “Houdini” analysis, which considers
accessibility at the time of the search.
While the dissent attempts to restrict this interpretation of Chimel to arrests of “vehicle
occupants and recent occupants,”16 that does not seem to have been the majority’s intent. The
Gant Court addressed the meaning and scope of Chimel before undertaking any analysis of its
application to vehicular searches. And rather than restricting its application, the Court reminded
us that Chimel “continues to define the boundaries of the [SIA] exception.”17 Thus, one can
make a persuasive argument that all searches incident to arrest under Chimel – whether of
persons, places, or things – are reasonable only when circumstances give rise to a possibility that
the arrestee might gain access to a weapon, evidence, or means of escape from the place to be
Although it is unclear whether lower federal courts will begin to apply the law in this
manner, officers in the field should expect the courts to begin scrutinizing their searches of an
arrestee’s non-vehicular lunging area incident to arrest. To prepare for such an inquiry, officers
should focus on articulating the reasonableness of any such search based on the following facts
(1) Distance: The distance between the arrestee and the place to be searched;18
(2) Restraints: Whether the arrestee was handcuffed or otherwise restrained, what kind of
restraints were used, and whether the arrestee was handcuffed in the front or back; 19
(3) Display of guns or other weapons by officers: Whether the police had weapons
drawn or pointed at the arrestee or other suspects;20
(4) Positioning: Whether the police were positioned so as to block the arrestee, suspects,
and bystanders from the area to be searched;
(5) Access: The ease of access to the area or container itself, to include whether a
container is open or closed, locked or unlocked;
(6) Numbers: The number of officers present versus the number of arrestees, suspects, or
(7) Arrestee’s conduct: Attempts made by the suspect before, during, or after the arrest
to access the area to be searched.21
(8) Reasonable change in circumstances: Do police need to move the arrestee away
from a dangerous environment into another private area,22 or can police articulate a
legitimate need to retrieve something such as the arrestee’s shoes or clothing?23
Searches of a Vehicle Following Arrest of an Occupant or Recent Occupant: Two Potential
Arrestee could access the vehicle. Gant held that police may search a vehicle incident to
arrest when the arrestee – an occupant or recent occupant of the vehicle – is unsecured and within
reaching distance of the passenger compartment at the time of the search. The Court noted that
“it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real
possibility of access to the arrestee’s vehicle remains.” In such a rare case, however, an SIA of
the passenger compartment would be reasonable under the Fourth Amendment. Since this search
is justified by Chimel, officers may search for weapons, any evidence of any crime, and means of
Offense-related evidence might be in the vehicle. Even if the arrestee can no longer
access the vehicle’s passenger compartment, the Court held that an SIA will also be permitted
“when it is reasonable to believe evidence relevant to the crime of arrest might be found in the
vehicle.” In many cases, such as arrests for traffic violations or outstanding arrest warrants, there
will be no reasonable basis to believe that the vehicle contains relevant evidence of the crime. In
other cases, however, such as arrests for possession of controlled substances, the basis of the
arrest will supply an acceptable rationale for searching the arrestee’s passenger compartment and
any containers inside. In a case where the search is justified by the possibility of locating
offense-related evidence in the vehicle, officers are limited to searching only those places in the
passenger compartment where the offense-related evidence might be located.
How to define the “reasonable to believe” standard? Is it the same as probable cause, or
is it something less? One must compare the search incident to arrest exception in Gant to
another firmly established search warrant exception to find the most likely answer.
In U.S. v. Carroll, the Supreme Court established the mobile conveyance exception to the
Fourth Amendment search warrant requirement.24 Under this exception, an officer may search a
readily mobile conveyance without a warrant upon probable cause that it contains evidence or
contraband. Once this standard is met, the officer may search any area of the vehicle – to include
the trunk compartment – if that area may contain the object(s) of the search. The rule in a Gant
search incident to arrest, however, first requires a lawful custodial arrest of an occupant or recent
occupant of a vehicle. A search of the passenger compartment incident to arrest is then justified
by a reasonable belief that evidence of the crime of arrest might be in the car.25
If Gant’s “reasonable to believe” standard is equal to probable cause, then the Court has
created an M.C. Escher-like puzzle.26 An officer who has made a custodial arrest and has a
reasonable belief (equated to probable cause) that evidence of the crime of arrest might be in the
car could search only the passenger compartment. An officer who has made no arrest, but has
probable cause to believe that evidence of any crime is in the car, could search the entire vehicle.
In other words, the officer who meets the higher standard (custodial arrest + probable cause for
particular evidence) gets to search less, but the officer who meets the lesser standard (probable
cause for any evidence) can search more. At best, the Court would have created a new search
warrant exception that is instantly swallowed by another that has existed for almost 85 years.
The better explanation is that reasonable means… reasonable. There is no need to equate
“reasonable to believe” to a percentage or particular level of probability; in fact, the Supreme
Court has stated that “the test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application.”27 Rather, as in issues regarding an officer’s use of
force, the proper application of the reasonableness standard “requires careful attention to the
facts and circumstances of each particular case” and “must be judged from the perspective of a
reasonable officer on the scene.”28 The ultimate question should be whether another reasonable
officer, if confronted with the same facts and circumstances, could believe that evidence of the
arrestee’s crime might be found in the vehicle the arrestee recently occupied. Facts and
circumstances leading to such a reasonable belief will include information about the offense and
the offender, the age of the information, the nature of the crime at issue, the behavior of the
arrestee before, during, and after the arrest, ownership and control of the vehicle, and results of
questioning arrestees and occupants.
Is the “offense-related evidence” justification limited to vehicular SIAs? The short
answer is: yes. Gant explicitly states that the offense-related evidence justification for an SIA is
based upon “circumstances unique to the automobile context.”29 The Court did not expound
upon why it believed vehicles to be special in this context, but Justice Scalia’s concurrence in
Thornton – from which the language was taken – reminds us that motor vehicles are “a category
of ‘effects’ which give rise to a reduced expectation of privacy and heightened law enforcement
needs.”30 Therefore, it appears as though officers may not justify a search of an arrestee’s non-
vehicular lunging area based upon a reasonable belief that evidence of his crime might be found
therein. Rather, they will have to articulate reason to believe that the arrestee could access the
area at the time of the search.
Other Vehicle Search Exceptions Remain Available
If an officer cannot justify a search of a vehicle incident to arrest under Gant, or is
uncertain whether an SIA is warranted, other established exceptions to the search warrant
requirement remain available to safeguard evidence and protect the safety of officers.
(1) If an officer has a reasonable suspicion that a passenger or recent occupant of a
vehicle – whether arrested or not – is dangerous and may gain access to a weapon, he
may frisk the passenger compartment for weapons.31 (This exception is known as a
Terry frisk of the vehicle.)
(2) If the officer has probable cause that the vehicle contains evidence of criminal
activity, the officer may conduct a thorough search of any area of the vehicle in which
the evidence might be found.32 (This exception is the aforementioned “mobile
conveyance exception” or the Carroll Doctrine.)
(3) If an officer conducting an arrest reasonably suspects that a dangerous person is
hiding in a nearby vehicle, he may conduct a protective sweep of the vehicle by
looking in places where such a person might be concealed.33
(4) Consent will always allow an officer to search, as long as it is given voluntarily by
one with actual or apparent authority to give it, and the officer stays within the
boundaries of the consent given.34
(5) Although not permitted for use as a criminal search tool, an officer who effects a
lawful impound of a vehicle may inventory its contents in accordance with
standardized agency policy. If the inventory is performed lawfully, any evidence or
contraband identified during the process may be seized and used as evidence in a
criminal prosecution, and may provide justification for another warrant exception.35
Given the Gant Court’s failure to define its “reasonable to believe” standard, one cannot
be certain how lower courts will apply that portion of the decision. For that reason, officers may
be well advised to consider the applicability of the other, well-established vehicle search
exceptions before relying on an SIA.
In addition to teaching students both basic and advanced legal courses, Ms. Solari is the designated subject
matter expert in the areas of Fourth Amendment (Search & Seizure) and Legal Aspects of Terrorism Investigations.
She is also the Legal Division’s point of contact for the Criminal Investigator Training Program (CITP).
Before joining the FLETC Legal Division, Jenna worked as a law clerk for the Hon. Gerald B. Tjoflat in
the U.S. Court of Appeals for the 11th Circuit. She was then commissioned as a naval officer and served three
years as a military prosecutor at Naval Air Station Jacksonville, Florida. After fulfilling her military service
obligation, Jenna served as an NCIS Special Agent in the Washington, D.C. field office, where she participated in
counterintelligence investigations and counterespionage operations.
Ms. Solari holds a Bachelor of Arts degree in Psychology and Criminal Justice from the University of
Richmond, and a Juris Doctor from the University of Georgia. She joined the FLETC Legal Division on April 19,
1 556 U.S. ___ (2009), 2009 U.S. LEXIS 3120. The text of the opinion is available at
2 Thornton v. United States, 541 U.S. 615, 626-27 (2004) (Scalia, J., concurring in judgment).
3 Chimel v. California, 395 U.S. 752, 762-63 (1969); see also United States v. Pratt, 355 F.3d 1119, 1121 (8th Cir.
2004) (“[I]f an officer has arrested an individual, the officer may search the individual’s person incident to arrest and
may reach into his pockets”).
4 Thornton, 541 U.S. at 626 (Scalia, J., concurring in judgment).
5 United States v. Pratt, 355 F.3d 1119, 1121 (8th Cir. 2004), citing United States v. Robinson, 414 U.S. 218, 235-36
(1973) (“[O]fficers need not have any reason to think the individual is armed or that evidence of the crime will be
found on his person. It is the fact of arrest that enables the officer to conduct a search, not a particularized suspicion
as to the suspect’s dangerousness”).
6 New York v. Belton, 453 U.S. 454 (1981), citing United States v. Robinson, 414 U.S. 218, 235 (1973).
7 United States v. Passaro, 624 F.2d 938, 943-44 (9th Cir. 1980) (search incident to arrest doctrine allows search of
8 United States v. Robinson, 414 U.S. 218 (1973).
9 “Robinson stands for the proposition that, after a proper custodial arrest has been made, it is unnecessary to obtain
a warrant to search the arrestee’s person and clothing because it is the arrest that constitutes the significant intrusion
under the Fourth Amendment; the search of the person is incidental and does not require additional justification. See
Robinson, 414 U.S. at 235. However, ‘unlike searches of the person, searches of possessions within an arrestee’s
immediate control cannot be justified by any reduced expectations of privacy caused by the arrest’” but must be
based upon the “exigencies of the situation.” United States v. Morgan, 936 F.2d 1561, 1578 (10th Cir. 1991)
(internal citations omitted).
10 Belton, 453 U.S. at 462, n.5.
11 Much of the case law authorizing this practice has applied Belton to non-vehicular arrests in an attempt to create a
bright-line rule for law enforcement. See, e.g. United States v. Palumbo, 735 F.2d 1095, 1096-97 (8th Cir.
1984)(explaining, in a non-vehicular search context, that the Belton rule “defines the area generally which may be
searched, and is not constrained because the arrestee is unlikely at the time of the arrest to actually reach into that
area.”); United States v. Queen, 847 F.2d 346, 352-54 (7th Cir. 1988) (citing numerous cases in upholding a search
incident to an arrest where the arrestee was handcuffed behind his back inside of a residence, but failing to
distinguish vehicular and non-vehicular cases under Belton); United States v. Silva, 745 F.2d 840 (4th Cir. 1984)
(applying Belton in a non-vehicular case to uphold the seizure of a zippered bag although the arrestee — who was
handcuffed behind his back — was sitting on a bed in a motel room surrounded by armed FBI agents). Belton,
however, is useful only to define that portion of a vehicle that may be searched when an SIA is justified, and is
probably not generalizable to a non-vehicular context. See United States v. Myers, 308 F.3d 251, 269 (3rd Cir. 2002),
citing Belton, 453 U.S. at 460 n.3 (“In a further attempt to clarify that it was only applying the rule of Chimel to the
unique circumstances of a post-arrest warrantless search of an automobile, the Court stated, ‘our holding today does
no more than determine the meaning of Chimel’s principles in this particular and problematic context. It in no way
alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to
lawful custodial arrest.’”).
12 See, e.g., United States v. Myers, 308 F.3d 251, 267 (3d Cir. 2002) (finding that an arrestee who was handcuffed
behind his back while lying face down on the floor and “covered” by two armed police officers while another officer
searched his bag would have had to possess superhuman qualities to access to the bag at the time of the search).
13 Myers, 308 F.3d at 267 (3d Cir. 2002), citing United States v. Abdul-Saboor, 85 F.3d 664, 669 (D.C. Cir. 1996).
14 Gant, 556 U.S. ___ (2009), 2009 U.S. LEXIS 3120 at *11.
15 Id., 2009 U.S. LEXIS 3120 at *12.
16 Id., 2009 U.S. LEXIS 3120 at *54 (“The first part of the Court’s new two-part rule — which permits an arresting
officer to search the area within an arrestee’s reach at the time of the search — applies, at least for now, only to
vehicle occupants and recent occupants, but there is no logical reason why the same rule should not apply to all
17 Id., 2009 U.S. LEXIS 3120 at *11.
18 Compare United States v. Morgan, 936 F.2d 1561, 1579 (10th Cir. 1991) (invalidating a search of a suspect’s bag
following his arrest where the bag was never closer than ten to fifteen feet behind the suspect during his arrest, it
was not seized until he was handcuffed to a nearby fence, and it was not searched until several hours later at the
police station) with State v. Galpin, 80 P.3d 1207 (Mont. 2003) (defendant’s coat and duffel bag 4-6 feet from him
at time of arrest lawfully searched incident to defendant’s arrest notwithstanding fact he was “handcuffed and placed
on his knees,” as that placed him “in even closer proximity to his coat and duffel bag” and “a man leaning his body
and reaching, even with his hands in cuffs, could potentially reach the articles within that range”).
19 See, e.g. United States v. Jones, 475 F.2d 723 (5th Cir. 1973) (“The record is unclear whether [the defendant’s]
hands were cuffed in front or behind his back and does not reveal the defendant’s location in relation to the suitcase
that the time of the search. Both of these facts are relevant to a determination of access to weapons or destructible
evidence. . . in the Chimel analysis.”) One might argue there is a possibility that officers might “leave a suspect
unrestrained nearby just to manufacture authority to search.” Thornton, 541 U.S. at 627 (2004) (Scalia, J.,
concurring in judgment). Justice Scalia anticipated this argument, however, and has opined that neglecting sensible
police procedures solely to justify a search might render the search itself unreasonable. Id.
20 See United States v. McConney, 728 F.2d 1195, 1207 (9th Cir. Cal. 1984) (en banc) (“The critical inquiry, then, is
whether the search that produced [the defendant’s] pistol was properly limited to the area within his immediate
control at the time of his arrest. The number of persons being arrest[ed], the number of officers present, their
physical positioning with regard to the arrestee and the place searched, the display of guns by the officers and, of
course, the distance between the arrestee and the place searched are all factors to be weighed by the court.”)
21 Compare United States v. Abdul-Saboor, 85 F.3d 664, 670 (D.C. Cir. 1996) (area was within arrestee’s immediate
control because although arrestee was handcuffed, arrestee attempted to retrieve a loaded shotgun after police
entered his room, and he specifically requested entry to the area to be searched); with United States v. Lyons, 227
U.S. App. D.C. 284, 706 F.2d 321, 300-31 (D.C. Cir. 1983) (search incident to arrest not justified where arrestee
was handcuffed, the closet that was searched was several yards away, six police officers were in the room with
arrestee, no weapons had yet been uncovered, and arrestee had collapsed and been revived before the search began).
See also United States v. Mitchell, 64 F.3d 1105, 1110 (7th Cir. 1995) (Suspect’s handcuffing did not destroy the
officer’s justification for searching the briefcase, where the officer had observed the suspect about to throw the
briefcase out the window immediately before arresting him, had arrested the suspect after seeing a gun in his
waistband, and had reason to fear that a confederate might come through the door at any moment and either grab for
the briefcase or create an opportunity for the suspect to grab for the briefcase, and the briefcase had been in the
suspect’s control …
Search Warrant Exceptions
February 1, 2007 • by Devallis Rutledge •
The requirement of the Fourth Amendment is that all searches be “reasonable.” The
Supreme Court has ruled that warrantless searches are presumed to be unreasonable,
“subject only to a few speci�cally established and well-delineated exceptions.” (Katz v.
U.S.) That means that unless you are searching under authority of a judicial warrant, you
are presumed to be violating the Fourth Amendment.
To rebut this presumption and avoid both civil liability and suppression of evidence, you
have the burden of establishing that your warrantless search was justi�ed under one or
more of the recognized exceptions, including the following.
Consent searches are reasonable provided consent is given by someone who appears to
have authority to do so and if it is given voluntarily. (Schneckloth v. Bustamonte) A person
usually has authority to consent to a search of any place to which he or she has a lawful
right of access. There are exceptions, however.
Even though hotel and motel employees have a right of access into rented rooms for
housekeeping and maintenance, they do not have the right to enter and search for
criminal evidence. Therefore, they cannot give e�ective consent for police entry and
search during the term of paid occupancy. (Stoner v. California; U.S. v. Je�ers)
Parents can generally consent to a search of their minor children’s property, but young
children cannot allow a search of their parents’ property. One spouse or co-tenant can
allow entry and search during the other’s absence, but not if the other is present and
objecting. (Georgia v. Randolph) Even a person who actually has no right of access but
reasonably appears to police to have authority to admit them can give e�ective consent.
(Illinois v. Rodriguez-o�cers had no way of knowing that the “girlfriend” with a key no
longer lived with the defendant.)
Consent is voluntary if police have not used any force or threats to coerce it. O�cers
cannot falsely assert that they have a search warrant or threaten to arrest a person for
refusing to consent. (Bumper v. North Carolina) Voluntary consent can be obtained from
a person in custody (U.S. v. Watson), and the person need not be told that he or she has a
right to refuse consent. (Robinette v. Ohio; U.S. v. Drayton) An o�cer does not have to
have any suspicion of wrongdoing in order to request consent. (Florida v. Bostick)
A person who consents to a search can limit the scope of search (Example: “You can
search inside the car, but not the trunk.”) If there is no other justi�cation for searching,
the o�cer must limit the search to the designated scope. The consenter may also revoke
consent at will, and the search must end, absent some other justi�cation. (Florida v.
Incident to Arrest
When you make a lawful, custodial arrest, you may make a contemporaneous search of
the person, clothing, and e�ects of the arrested person (such as purses, backpacks, du�el
bags, shopping bags, etc.). (U.S. v. Robinson) This is not merely a weapons pat-down, but
a full search, including containers found in the pockets, etc. (U.S. v. Gustafson)
To be “contemporaneous,” the search must take place at or near the time and place of
the arrest and cannot be delayed or performed at another location. (Dyke v. Taylor)
However, a search can be “incident” to an arrest even if it occurs before the person is
actually placed under arrest, as long as you had PC to arrest before searching. (Rawlings
v. Kentucky) To be “custodial,” the arrest must be accomplished by taking physical
custody and transporting the person away. A temporary detention followed by a release
on a written citation does not justify a search. (Knowles v. Iowa)
This exception also allows a search of all compartments and containers in the passenger
area of a vehicle the arrestee recently occupied. (Thornton v. U.S.) If the arrest takes place
inside a residence you lawfully entered, the scope of search extends to places where the
arrestee could reach or lunge (Chimel v. California), and also allows a peek into
immediately adjoining rooms and spaces that could conceal a potential assailant.
(Maryland v. Buie)
Inherently mobile devices, including cars, trucks, buses, RVs, airplanes, trains, and water-
going vessels, are “�eeting targets” for a search, because they can be easily moved out of
the jurisdiction while a warrant is being sought. They are also subject to pervasive
regulation. For these reasons, the court has held that vehicles have a diminished
expectation of privacy that allows warrantless searches based on two things: probable
cause to believe they contain something seizable and lawful access to the place where
they are found. (Chambers v. Maroney)
If a vehicle is inside a garage or other structure that you cannot lawfully enter, a warrant
must be obtained. However, if you have PC to search a vehicle found on a highway, street,
driveway, carport, parking lot, tow yard, or other area lawfully accessible to police, you
may search any part of the vehicle and its contents and containers that might conceal the
object of your search. (California v. Acevedo) This search can occur even though you have
had exclusive custody of the vehicle for several days and had plenty of time to obtain a
warrant. (U.S. v. Johns; Florida v. Meyers)
Limited search activities can be justi�ed in the interest of o�cer safety. For example, you
may order out the driver and all passengers at a lawful tra�c stop, without any reason or
suspicion. (Pennsylvania v. Mimms; Maryland v. Wilson) If you have a reasonable
suspicion that a person is armed and dangerous, you may conduct a pat-down search of
the outer clothing for weapons. When lawfully inside a residence and with articulable
suspicion that an assailant may be present, you may conduct a “safety sweep” of the
premises. (Maryland v. Buie)
Booking Search and Inventory
The property worn or carried by a lawfully arrested person may be thoroughly examined
at the place of detention. (Illinois v. Lafayette) After clothing and possessions are taken
from an arrestee and held in the property locker, they are still subject to warrantless
search. (U.S. v. Edwards)
If (and only if) the department has a standardized policy that directs o�cers to open and
inventory the contents of lawfully seized vehicles for safety and accounting purposes, you
may do so. (Colorado v. Bertine; Florida v. Wells)
The court has identi�ed several “special needs” exceptions that do not �t into other
categories. These include probation and parole searches, school searches, searches of
highly regulated businesses (such as �rearms dealers, pawn shops, and junkyards),
employment and educational drug screening, and the immediate search for “evanescent”
evidence (such as blood-alcohol content).
The facts surrounding any search should be examined to see how many ways it can be
justi�ed, rather than resting on a single theory. (Devenpeck v. Alford) Also, state
restrictions may limit your ability to search under U.S. Supreme Court rules. Remember,
the safest course for any search is to seek a search warrant, whenever practicable.
Devallis Rutledge, a former police o�cer and veteran prosecutor, is Special Counsel to the Los
Angeles County District Attorney.
SEARCH WARRANT EXCEPTIONS
– Consent Search
– Search Incident to Arrest
– Fleeting Targets Search
– O�cer Safety Search
– Booking Search
– Special Needs Searches
SEARCH & SEIZURE
Questions concerning changes in statutes, current case laws and general legal
issues concerning law enforcement agencies and/or their officers acting in official
capacity will be addressed by the Legal Training Section.
Questions concerning the Kentucky Law Enforcement Council policies and KLEFPF
will be forwarded to the DOCJT General Counsel for consideration.
Questions received will be answered in approximately two or three business days.
Please include in the query your name, rank, agency and a daytime phone number in
case the assigned attorney needs clarification on the issues to be addressed.
The Leadership Institute Branch of the Department of Criminal Justice
Training offers a Web-based service to address questions concerning
legal issues in law enforcement. Questions can now be sent via e-mail
to the Legal Training Section at
J.R. Brown, Branch Manager
859-622-6591 [email protected]
Legal Training Section
Main Number 859-622-3801
General E-Mail Address [email protected]
Gerald Ross, Section Supervisor
859-622-2214 [email protected]
Carissa Brown, Administrative Specialist
859-622-3801 [email protected]
Kelley Calk, Staff Attorney
859-622-8551 [email protected]
Thomas Fitzgerald, Staff Attorney
859-622-8550 Tom. [email protected]
Shawn Herron, Staff Attorney
859-622-8064 [email protected]
Kevin McBride, Staff Attorney
859-622-8549 [email protected]
Michael Schwendeman, Staff Attorney
859-622-8133 [email protected]
General Information concerning the Department of Criminal Justice Training may
be found at http://docjt.ky.gov. Agency publications may be found at
In addition, the Department of Criminal Justice Training has a new service on its
web site to assist agencies that have questions concerning various legal matters.
Questions concerning changes in statutes, current case laws, and general legal
issues concerning law enforcement agencies and/or their officers can now be
addressed to [email protected] The Legal Training Section staff will monitor this
site, and questions received will be forwarded to a staff attorney for reply.
Questions concerning the Kentucky Law Enforcement Council policies and those
concerning KLEFPF will be forwarded to the DOCJT General Counsel for
consideration. It is the goal that questions received be answered within two to
three business days (Monday-Friday). Please include in the query your name,
agency, and a day phone number or email address in case the assigned attorney
needs clarification on the issues to be addressed.
United States Constitution
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated; and no warrants shall issue, but upon
probable cause, supported by oath or affirmation,
and particularly describing the place to be searched
and the persons or things to be seized.
Commonwealth of Kentucky
Sec. 10 Security from search and seizure –
Conditions of issuance of warrant
The people shall be secure in their persons, houses,
papers and possessions, from unreasonable search and
seizure; and no warrant shall issue to search any
place, or seize any person or thing, without
describing them as nearly as may be, nor without
probable cause supported by oath or affirmation.
The Kentucky Search & Seizure Case Briefs is designed as a study and reference tool for officers in training
classes. Although care has been taken to make the case briefs included as accurate as possible, official copies
of cases should be consulted when possible before taking any actions that may have legal consequences.
The issues and holdings that appear in each brief are only the opinions of the compilers of the Case Briefs.
They are only meant to be used for guidance in statutory and case interpretation, are not offered as legal
opinions, and should not be relied upon or cited as legal authority for any actions. Always consult legal
counsel when in doubt about the meaning of a statute or court decision.
Search and Seizure
Table of Cases (by Plaintiff)
Adams v. Williams 147
Agnello v. U.S. 163
Aguilar v. Texas 117
Alabama v. White 161
Arizona v. Gant 176
Arizona v. Hicks 93
Arizona v. Johnson 151
Arkansas v. Sanders 195
Bad Elk v. U.S. 23
Beck v Ohio 167
Bond v. U.S. 50
Brendlin v. California 173
Brinegar v. U.S. 190
Brower v. County of Inyo 37
Brown v. Texas 153
Brown v. U.S. 88
Bumper v. North Carolina 76
Cady v. Dombrowski 184
California v. Acevedo 198
California v. Carney 199
California v. Ciraolo 61
California v. Greenwood 53
California v. Hodari D. 43
Camara v. Municipal Court 139
Cardwell v. Lewis 192
Carroll v. U.S. 189
Chambers v. Maroney 191
Chapman v. U.S. 67
Chimel v. California 169
City of Indianpolis v.
Colorado v. Bertine 205
Coolidge v. New Hampshire 54
Cooper v. California 204
County of Sacramento v.
Cupp v. Murphy 81
Davis v. Mississippi 35
Delaware v. Prouse 188
Devenpeck v. Alford 28
Dir. Gen. of Railroads v.
Dow Chemical Co. v. U.S. 62
Draper v. U.S. 100
Dunaway v. New York 36
Flippo v. West Virginia 182
Florida v. Bostick 43
Florida v. Jimeno 75
Florida v. J.L. 162
Florida v. Riley 63
Florida v. Royer 71
Florida v. Wells 206
Franks v. Delaware 119
Georgia v. Randolph 78
Groh v. Ramirez 129
Gustafson v. Florida 167
Hayes v. Florida 46
Henry v. U.S. 24
Herring v. U.S. 33
Hester v. U.S. 63
Hiibel v.. Sixth Judicial
District Court Of Nevada,
Humboldt County 156
Horton v. California 58
Hudson v. Michigan 127
Illinois v. Caballes 51
Illinois v. Gates 121
Illinois v. Lafayette 178
Illinois v. Lidster 201
Illinois v. McArthur 134
Illinois v. Rodriguez 74
Illinois v. Wardlow 159
Johnson v. U.S. 59
Jones v. U.S. 84
Katz v. U.S. 85
Knowles v. Iowa 179
Kyllo v. U.S. 95
Lo-Ji Sales, Inc. v. New York 128
Los Angeles v. Rettele 131
McDonald v. U.S. 67
Mancusi v. DeForte 87
Mapp v. Ohio 103
Marron v. U.S. 164
Maryland v. Buie 180
Maryland v. Dyson 193
Maryland v. Pringle 112
Maryland v. Wilson 203
Michigan v. Chesternut 47
Michigan v. Clifford 142
Michigan v. Long 150
Michigan v. Summers 135
Michigan v. Tyler 141
Michigan Dept. of State
Police v. Sitz 199
Mincey v. Arizona 181
Minnesota v. Carter 97
Minnesota v. Dickerson 59
Minnesota v. Olson 94
Muehler v. Mena 113
New Jersey v. T.L.O. 206
New York v. Belton 167
Nix v. Williams 104
O’Connor v. Ortega 99
Ohio v. Robinette 72
Oliver v. U.S. 64
Payton v. New York 32
Pennsylvania v. Kilgore 193
Pennsylvania v. Labron 193
Pennsylvania v. Mimms 202
Peters v. New York 145
Rakas v. Illinois 89
Rawlings v. Kentucky 91
Reid v. Georgia 149
Richards v. Wisconsin 134
Roaden v. Kentucky 45
Rugendorf v. U.S. 118
Safford Unified School District v.
Schmerber v. California 81
Schneckloth v. Bustamonte 72
Scott v. Harris 39
Sedillo v. U.S. 58
See v. City of Seattle 140
Segura v. U.S. 105
Sibron v. New York 145
Silverthorne Lumber Co. v. U.S. 102
Smith v. Maryland 86
Smith v. Ohio 168
South Dakota v. Opperman 204
Steagald v. U.S. 33
Stoner v. California 69
Taylor v. U.S. 116
Terry v. Ohio 144
Texas v. Brown 56
Thompson v. Louisiana 182
Thornton v. U.S. 172
Ulster County Court v. Allen 111
U.S. v. Arvizu 159
U.S. v. Banks 125
U.S. v. Biswell 180
U.S. v. Brignoni-Ponce 187
U.S. v. Carter 109
U.S. v. Chadwick 194
U.S. v. Dunn 65
U.S. v. Drayton 77
U.S. v. Grubbs 138
U.S. v. Hensley 153
U.S. v. Jacobsen 122
U.S. v. Jeffers 166
U.S. v. Johns 197
U.S. v. Knights 98
U.S. v. Knotts 92
U.S. v. Leon 107
U.S. v. Matlock 73
U.S. v. Mendenhall 76
U.S. v. Murray 109
U.S. v. Place 44
U.S. v. Rabinowitz 165
U.S. v. Robinson 170
U.S. v. Ross 196
U.S. v. Salvucci 90
U.S. v. Santana 66
U.S. v. Sharpe 158
U.S. v. Watson 70
Virginia v. Moore 30
Warden of Maryland
Penitentiary v. Hayden 185
Washington v. Chrisman 24
Weeks v. U.S. 101
Welsh v. Wisconsin 26
Whiteley v. Warden, Wyoming
State Penitentiary 116
Whren v. U.S. 188
Wilson v. Arkansas 124
Winston v. Lee 82
Wyoming v. Houghton 171
Ybarra v. Illinois 148
Zurcher v. The Stanford Daily 136
Search and Seizure – Summary 1
Exclusionary Rule 33
Situations that Lack Fourth Amendment Protection
Abandoned Property 53
Plain View 54
Open Fields 63
Public Areas 66
Body Evidence 81
Seizure – Basic Concepts
Reasonable Expectation of Privacy/Standing 84
Probable Cause 100
Exclusionary Rule 101
Constructive Possession 111
Miscellaneous Search Issues 113
Search Warrant Affidavit 116
Knock and Announce 124
Search Warrant Form 128
Search Warrant Service 131
“No-Knock” Warrants 134
Miscellaneous Issues 134
Anticipatory Warrants 138
Area Search Warrants 139
Administrative Warrants 141
Reasonable Suspicion – Terry 144
Anonymous Tips 161
Search Incident to Arrest 163
Booking Search 178
Search Incident to Citation 179
Closely Regulated Businesses 180
Sweep Searches 180
Crime Scene Search 188
Community Caretaker 184
Hot/Fresh Pursuits 185
Vehicle Stops 187
Pretext Stops 188
Vehicle Exception – Carroll 189
Carroll – Containers 194
Recreational Vehicle / Motor Homes 199
Miscellaneous Vehicle Issues 202
School Searches 206
SEARCH AND SEIZURE
I. CONSTITUTIONAL BASIS
A. U.S. Constitution–Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.
B. Kentucky Constitution–Section 10
The people shall be secure in their persons, houses, papers and possessions, from unreasonable search
and seizure; and no warrant shall issue to search any place, or seize any person or thing, without
describing them as nearly as may be, nor without probable cause supported by oath or affirmation.
Although the wording differs slightly, the Kentucky Supreme Court interprets Section 10 above of the
Kentucky Constitution as having the same meaning as the Fourth Amendment to the U.S. Constitution.
Note: Neither Constitution prohibits all searches and seizures–only unreasonable ones. A search
conducted under a legal search warrant is both reasonable and legal. Under certain exigent or emergency
circumstances, searches and seizures conducted without a warrant are also reasonable and legal.
II. WHAT IS A SEARCH?
An officer who examines another person’s premises, person, or property for the purpose of discovering
contraband (such as stolen property) or other evidence for use in a criminal prosecution has conducted a
“search”. A search involves prying into hidden places1 in order to discover something concealed.
III. WHAT IS A “SEIZURE”?
An officer who takes into custody a person (e.g., arrests that person) or property (e.g., removes a
concealed deadly weapon from a suspect) seizes that person or property. The seizure may be temporary
or permanent – the nature of the seizure will determine what circumstances must exist to authorize the
1 Nichols v. Com. , Ky., 408 S.W.2d 189 (1966).
IV. SEARCH SITUATIONS NOT PROTECTED BY FOURTH AMENDMENT
A. ABANDONED PROPERTY
A person may lose an expectation of privacy either:
1. by discarding the property in a place where others would have access to it2 or
2. by disclaiming ownership of the object3
Such situations would include when a person discards their trash, in the area where trash is commonly
picked up, or when they abandon an item of property (such as a purse) where others would have ready
access to the item.
B. PLAIN VIEW
An item seized in “plain view” is not protected by the Fourth Amendment since the officer has not
conducted a “search” to discover the item. The plain view doctrine is summarized as follows:
• If an officer is where he has a legal right to be, and
• Sees, in plain view, contraband or evidence of a crime (and immediately recognizes it as such),
• The officer may seize it if the officer has a right to access the item (legally be where the item is
1. Officer is Where He Has Legal Right to be
An officer’s right to be in a location is established by:
Being in a public place from where he sees evidence located in a public or private place.
Being Invited onto private property
Obtaining actual consent from someone who has lawful control over private property.
Having implied consent.
Exigent (or Emergency) circumstances exist..
Executing legal process (arrest or search warrant).
2. Officer Sees in Plain View
When the officer sees the item, he must have probable cause at that time (Immediately) to believe the
item is evidence of a crime.5 He may not move the item for further examination or to look for serial
numbers or other identifying marks.6
2 California v. Greenwood, 486 U.S. 35 (1988); Cook v. Com., Ky., 649 S.W.2d 198 (1983).
3 Ragland v. Com., Ky., 265 S.W. 15 (1924) and James v. Com., Ky., 647 S.W.2d 794 (1983).
4 Horton v. California, 469 U.S. 128 (1990).
5 Texas v. Brown, 103 S.Ct. 1535 (1983).
6 Arizona. v. Hicks, 107 S.Ct. 1149 (1987)
Plain touch, plain smell. The plain view doctrine implies use of the sense of sight, but the other senses
may also be used. The U.S. Supreme court recognized the validity of plain “touch” (or feel) in Minnesota
v. Dickerson7 as well as “plain smell” in drug cases.8
3. Evidence of a Crime (Contraband)
Evidence (of a crime) may be divided into four categories:
Instruments of a crime – items used to commit crimes (e.g., weapons, burglar tools and other
items used to commit theft).
Fruits of a crime – i.e., the gain or proceeds from a crime (e.g., money, stolen property, etc.).
Contraband – i.e., items prohibited by law (e.g., defaced firearm, illegal drugs, etc.).
Other Evidence of a crime – i.e., anything else that tends to prove that
a. A crime has been committed (i.e., the elements of a crime), and/or
b. A particular person committed it – usually circumstantial evidence found at a crime scene (e.g.,
fingerprints, lint, hairs, blood, etc.) that tend to show motive, intent, opportunity or means to
commit the crime.
It is critical, however, that the officer immediately recognize that the item is, in fact, evidence or contraband.
4. Right to Access the Contraband or Evidence
If the evidence is located in a place where the officer also has a right to be, the officer may immediately
seize the evidence. If the item is readily destructible and the officer reasonably believes that if he does
not immediately take it into possession the evidence will be destroyed, an officer may trespass and take
physical control. Otherwise, the officer must use his knowledge of the illegality as probable cause for a
search warrant. The warrant then authorize and entry and seizure.
In general, items are considered to be in plain view if seen from an aircraft (fixed or rotary-win) flying within
D. Open Fields
An officer may search “open fields” without a warrant, without probable cause, despite notices or other
efforts showing an expectation of privacy and despite the fact that the search may constitute a technical
trespass.10 An “open field” is any land not included in the curtilage and does not describe the actual
condition of the land. The land may in fact be considered an open field, but may also have buildings on it,
be wooded or be otherwise used. A person’s “curtilage” is his home, a reasonable area for yard space
(whether fenced or not) and the nearby buildings used in connection with the home. Outside the curtilage
7 113 S.Ct. 2130 (1993).
8 Johnson v. U.S., 333 U.S. 10 (1948); Cooper v. Com., Ky. App., 577 S.W.2d 34 (1979).
9 California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989).
10 Hester v. U.S., 265 U.S. 57, 44 S.Ct 445 (1924); Oliver v. U.S., 466 U.S. 170, 104 S.Ct 1735 (1984); Oliver v. U.S., 466 U.S.
170, 104 S.Ct 1735 (1984)
is “open fields” and may be searched by an officer. When in an open field area the officer may not,
however, on that account alone, search a building, person or non-abandoned car.
E. Public Area
No one has a reasonable general expectation of privacy in a public area such as road, sidewalk, public
park, etc., but may have a reasonable expectation of privacy in his person, luggage, or vehicle that is
located in a public area.
As used here, “Public,” means “open to the public,” and includes various commercial establishments such
as bars and retail stores. Therefore an officer can be in such an establishment in areas where prospective
customers are allowed. at times when they are allowed to be there, and making no closer examination of
things therein than an ordinary customer would and he will not have violated anyone’s reasonable
expectation of privacy.11 A regulatory officer, such as an alcohol beverage control officer, may enter into
areas where alcohol is stored but that are not open to the general public, under circumstances where the
general jurisdiction officer may not. Of course, some areas, such as bathrooms, may be so arranged as to
support an expectation of some degree of privacy even though the general public is allowed to enter.
E. Citizen’s Search
Both the Fourth Amendment to the U.S. Constitution and Section 10 of the Kentucky Constitution protect
citizen from government action. Fruits of a citizen’s search should not be excluded as being subject to
any exclusionary rule, unless the citizen was acting as an agent of an officer. Generally the courts will
allow an officer to search to the same extent already done by a citizen who has searched and then told
the officer of the results, but a warrant would still be required if the search was to go beyond that area,
unless there was some emergency presented.
F. Consent Searches
A consent search is legal only if:
1. Consent is given voluntarily; and
2. Consent is given by a person with the authority to consent.
a. Consent must be Given Voluntarily
Consent is voluntary when the person is aware of what he is doing and gives the consent under free
will. The consent must be given without force, threat, trickery, or any kind of coercion. If the officer
claims to have a search warrant but does not have one, any consent given is not voluntary. If the
officer first makes statements to show his authority to search, any consent which the person then
gives is not valid. The court will look at all the surrounding circumstances in deciding whether the
11 U.S. v. Santana, 427 U.S. 38 (1976).
consent was voluntary.12 If a large number of officers were present, courts may find the consent was
coerced. If possible, no more than two officers should be present. Generally, the simple fact that the
officers are in uniform does not make the consent coerced.13
b. Person Consenting Must Have Authority to Consent
Any person with control over the area to be searched may consent if he has a sound mind and is old
enough to understand the ramifications of consent. A person must have possession or control over
the property to give consent.14 If a home is to be searched, the owner may normally consent.
However, if the home is rented out to a tenant, the tenant, not the owner, may consent.15 If
personal property such as a car or suitcase is to be searched, the owner may consent. If the person
consenting is not the suspect, the person consenting must have authority over the place at least
equal to the authority of the suspect. If two people such as husband and wife share the use and
control of the property equally, either one may consent to the search. Further, the U.S. Supreme
Court has held that any joint occupant of a residence, may consent to search the residence if the
other occupant is absent.
Even where two people share a home together, they may have an agreement that each person has
complete control over certain areas, rooms, or items of personal property such as a toolbox. If they have
this arrangement, one person may not consent to search the areas under the other person’s control.
a. Hotel-Motel Situation
If the customer is still occupying his hotel or motel room, the manager or clerk may not give consent
to search his room without his permission.16 Once the customer checks out, the manager may freely
consent to a search of the room. A posted checkout time is not necessarily dispositive. Not all
establishments require a formal checkout at the desk and whatever the case is there may be
adequate evidence that the lodger has left the room permanently and thus abandoned any
reasonable expectation of privacy in its contents. On the other hand, although the apparent checkout
time has passed, the tenant may be remaining with a reasonable belief that it is still his room.17
b. Parent-Children Situation
The courts have held that a parent may consent to the search of a child’s room or effects in the
premises controlled by the parent and over which the parent may exercise control.18 However, if the
child pays rent or room and board, a lessor-lessee relationship exists and this relationship would
determine the validity of the consent. An adult child, or even an older juvenile, may be held to be
legally able to give consent of the parents’ home, if they share authority over the area in question.
12 Hohnke v. Com., 451 S.W. 2d 162 (Ky., 1970).
13 Stuckey, Gilbert B., Evidence For The Law Enforcement Officer, McGraw-Hill Book Co., p. 215 (1968).
14 Combs v. Com., 341 S.W. 2d 774 (Ky., 1960).
15 Chapman v. U.S., 365 U.S. 610 (1961).
16 Stoner v. California, 376 U.S. 483 (1964).
17 U.S. v. Owens, 882 F.2d 146 (10th Cir., 1984)).
18 Carr v. Com., Ky., 463 S.W.2d 109 (1971).
If the suspect, or his spouse, is the owner of the home, a babysitter may be held to be unable to give
a legal consent to search. The babysitter’s authority over the home would be considered less than
the authority of the owner. However, a babysitter’s consent may be valid as against a guest of the
If one spouse consents, but the other spouse who is also present refuses, the refusal will control and
a search will not be permitted.20 However, if only one spouse is present, and consents, it is not
necessary to seek out the other spouse to gain their permission as well. (But, if the other person is
absent because of police action, such as an arrest, and that seizure was for the purposes of
removing them from the house, the consent of the remaining spouse is invalid.)
Under both U.S. Supreme Court and Kentucky decisions, a consent by a person may still be valid even
though the officers do not inform the person of his right to refuse. But, the failure to warn is still one factor
considered by the court in deciding whether the consent was voluntary.21
4. Limiting Consent
A person definitely may limit consent to cover only certain parts of a house or building, or withdraw his
consent at any time. Once the subject withdraws consent, no further search can be justified as a consent
NOTE: Because of risks with a consent search the officer should always get a search warrant instead, if
possible. If a consent search is conducted, the officer should try to get a signed, written, or other recorded,
G. Body Evidence
Evidence from a person’s body, especially when evanescent (easily destroyed), may, under appropriate
circumstances, may be collected without a warrant. Evidence that not possible to alter or destroyed (such
as a person’s DNA) will generally require either consent, or a warrant, to obtain. In addition, evidence that
requires surgery or an invasive medical procedure to recover will also, as a rule, require a warrant, unless
there is a separate medical reason to remove the item immediately.
19 See Butler v. Com.. Ky. 536 S.W. 2d 139 (1976). But also see Cain v. Com., Ky., 554 S.W. 2d 369 (1977), which case is
harmonized with the Butler case, and in which a live-in lover was accepted standing to object.
20 Georgia v. Randolph,
21 Schneckloth v. Bustamonte, 412 U.S. 218 (1973); and Hohnke v. Com., Ky., 451 S.W. 2d 162 (1970).
V. BASIC CONCEPTS
Search and Seizure law centers around the concept of the reasonable expectation of privacy an individual
has in a particular area. Without that expectation, there are no Fourth Amendment implications. In addition,
without that expectation, an individual lacks standing – the right to bring a claim – even if someone else’s
rights are allegedly violated, unless, for example, the person is a minor or legally incompetent to bring the
claim on their own.
Probable Cause is the standard that is required for the issuance of a search warrant, for an arrest warrant
or warrantless arrest, or for a vehicle exception (Carroll) search. It is more than reasonable suspicion, but
less that a clear and convincing or beyond a reasonable doubt.
The Exclusionary Rule
This chapter has analyzed the basic requirements for conducting lawful searches with and without a search
warrant. If a search satisfies these requirements and produces evidence relevant to criminal charges, that
evidence is admissible (legally acceptable) in the trial on those charges. Conversely, if officers obtain
evidence by an illegal search and seizure, the court will exclude that evidence from the trial on the criminal
charges. This rule of law, that evidence obtained by an illegal search and seizure is inadmissible in a
criminal trial, is known as the “exclusionary rule.”
Some of the more common grounds on which courts exclude evidence as the result of illegal search and
seizure are as follows:
the search was not based on probable cause; or
the search went beyond the scope of the warrant; or
the search without a warrant was unreasonable because the officer had adequate opportunity to
obtain a warrant.
The Derivative Evidence Rule (Fruit of the Poisonous Tree)
The exclusionary rule prohibits both direct and indirect use of unlawfully obtained evidence. Simply stated,
unlawfully obtained information cannot be the basis for investigation which develops other evidence. The
new evidence is said to be tainted or the “fruit of the poisonous tree.” The “fruit of the poisonous tree”
doctrine may be applicable if illegally obtained evidence is the basis for discovery of:
A willing witness who might not have been found.
A confession or admission which might not have been made if the defendant had not been confronted
with the illegally obtained evidence.
Any other evidence which might not have been found.
Even if an officer uncovers critical evidence which positively connects a suspect to a crime, if the evidence
is obtained in violation of the defendant’s Fourth Amendment rights, the evidence cannot be used unless an
exception to the rule applies (such as the inevitable discovery …
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THE FOURTH AMENDMENT WARRANT REQUIREMENT
The Fourth Amendment Warrant Requirement
Created by FindLaw’s team (https://www.�ndlaw.com/company/our-team.html) of legal writers
and editors | Last updated January 29, 2019
Once the Fourth Amendment applies to a particular search or seizure
amendment.html), the next question is under what circumstances a warrant is required to be
issued. The U.S. Supreme Court has ruled that the U.S. Constitution expresses a preference for
searches, seizures, and arrests conducted pursuant to a lawfully executed warrant
A warrant is a written order signed by a court authorizing a law-enforcement o�cer to conduct a
search, seizure, or arrest. Searches, seizures, and arrests performed without a valid warrant are
deemed presumptively invalid, and any evidence seized without a warrant will be suppressed
unless a court �nds that the search was reasonable under the circumstances.
Read on to �nd out about the Fourth Amendment warrant requirement and how it could apply to
Requirements for a Valid Search Warrant
An application for a warrant must be supported by a sworn, detailed statement made by a law
enforcement o�cer appearing before a neutral judge or magistrate. The U.S. Supreme Court has
said that probable cause (https://www.�ndlaw.com/criminal/criminal-rights/probable-
cause.html) exists when the facts and circumstances within the police o�cer’s knowledge
provide a reasonably trustworthy basis for a person of reasonable caution to believe that a
criminal offense has been committed or is about to take place (see Carroll v. United States
Establishing Probable Cause
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Search and Seizure
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Probable cause can be established by out-of-court statements made by reliable police
informants, even though those statements cannot be tested by the magistrate. However,
probable cause will not lie where the only evidence of criminal activity is an o�cer’s a�rmation
of suspicion or belief (see Aguilar v. Texas (https://caselaw.�ndlaw.com/us-supreme-
court/378/108.html)). On the other hand, an o�cer’s subjective reason for making an arrest
doesn’t need to be the same criminal offense for which the facts indicate. (Devenpeck v. Alford
An O�cer’s Oath
Probable cause will not lie unless the facts supporting the warrant are sworn by the o�cer as
true to the best of their knowledge. The o�cer’s oath can be written or oral, but the o�cer must
typically swear that no knowing or intentionally false statement
rights.html) has been submitted in support of the warrant and that no statement has been made
in reckless disregard of the truth. It’s important to note, however, that inaccuracies due to an
o�cer’s negligence or innocent omission won’t typically jeopardize a warrant’s validity.
Details in a Warrant Application
In addition to the probable cause requirement, the Fourth Amendment warrant requirement also
necessitates that a warrant “particularly” describe the person or place to be searched or seized.
In other words, warrants must provide enough detail so that an o�cer can ascertain with
reasonable effort the persons and places identi�ed in the warrant.
For most residences a street address usually satis�es the particularity requirement, unless the
warrant designates an apartment complex, hotel, or other multiple-unit building, in which case
the warrant must describe the speci�c sub-unit to be searched. Warrants must describe
individuals with su�cient particularity so that a person of average intelligence can distinguish
them from others in the general population.
Neutral and Detached Magistrate
The magistrate before whom an o�cer applies for a warrant must be neutral and detached. This
quali�cation means that the magistrate must be impartial and not a member of the “competitive
enterprise” of law enforcement (see California v. Acevedo (https://caselaw.�ndlaw.com/us-
supreme-court/500/565.html)). Thus, police o�cers, prosecutors, and attorney generals are
disquali�ed from becoming a magistrate.
States vary as to the requirements that candidates must possess before they will be considered
quali�ed for the job of magistrate. Some states require that magistrates have an attorney’s
license, while others require only that their magistrates be literate.
Learn More About Fourth Amendment Warrant Requirements: Talk to an
Where a warrant is used, it must be lawfully obtained and executed. Any defect in this process
could result in the removal of harmful evidence in your case. A skilled lawyer knows what to look
for when it comes to warrants and can help you mount a strong defense. Get in touch with a
criminal defense attorney (https://lawyers.�ndlaw.com/lawyer/practice/criminal-law?�i=dcta) in
your area who can help you understand any issues related to the warrant requirement.
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Foundations of Law / Criminal Procedure / Protection from Unreasonable Searches and Seizures
/ Exceptions to the Warrant Requirement
Exceptions to the Warrant Requirement
Video-Course: Exceptions to the Warrant Requirement – Module 3 of 5
Video-Course: More Exceptions to the Warrant Requirement – Module 4 of 5
Short Video: Fourth Amendment: Exceptions to the Warrant Requirement (Part I)
Fourth Amendment: Exceptions to the Warrant Requirement (Part I)
Fourth Amendment-Warrant Requirement Exceptions (Part II)
Voluntarily acquiescing or complying with a request, by someone of suf�cient mental capacity; a decision made
in the absence of coercion or duress. Whether or not a party has given voluntary consent is determined by the
totality of the circumstances.
Making contact with a suspect’s outer clothing in order to determine, through touch, whether or not a concealed
weapon is present. An of�cer is not allowed to perform a frisk (or “pat-down”) to look for mere contraband,
evidence of a crime, fruits of a crime, or instrumentalities of a crime, but only for the presence of a weapon that
might put the of�cer or other people in the area at risk. A frisk is not a full search. If the frisk reveals the likely
presence of a weapon, a more thorough search may be permissible, and anything found at that point can be used
as evidence at trial.
There are six major exceptions to the warrant requirement.
1. Search Incident to Lawful Arrest
A search incident to lawful arrest does not require issuance of a warrant. In other words, if someone is lawfully arrested, the
police may search her person and any area surrounding the person that is within reach (within his or her “wingspan”). See
Chimel v. California, 395 U.S. 752 (1969). The rationale is that the search is permissible as a protective measure for police safety
and to secure evidence that might be destroyed.
EXAMPLE: Pursuant to an arrest warrant, John is taken into custody in his home. As the
police escort John out of his house, they search the area within his wingspan. After
securing John in his vehicle, the of�cers search the basement of the house. Any evidence
gathered from the basement will be excluded because it was not within John’s wingspan
as he left the home.
A search incident to lawful arrest also applies to the search of a vehicle, speci�cally when of�cers arrest the
occupants of a vehicle. In Arizona v. Gant, 556 U.S. 332 (2009) the U.S. Supreme Court held that an of�cer may
search a vehicle if the of�cer has a reasonable belief that the vehicle harbors weapons accessible to the arrestee (a
continuing threat to of�cer safety) and/or if the of�cer believes the vehicle harbors evidence concerning the crime of
2. Plain View Exception
No warrant is required to seize evidence in plain view if the police are legitimately in the location from which the
evidence can be viewed. For example, an of�cer cannot illegally enter a suspect’s back yard and then use the plain
view exception to seize an illegally kept alligator living in the pool. But, if on the premises to serve a warrant duly
issued to search for marijuana plants, the alligator, if in plain view, can rightly (though by no means easily) be seized.
EXAMPLE: The police are called to Donald’s house by neighbors who see him beating up
his wife, Victoria. After properly entering the house (without a search warrant – see
emergency exception below), police notice Donald’s prized gun collection hanging on the
wall. Fortunately for the of�cers, the guns are not loaded. Unfortunately for Donald, many
of them are illegal and Donald is arrested for battery as well as for the illegal guns, which
If consent is given by a person reasonably believed by an of�cer to have authority to give such consent, no warrant
is required for a search or seizure. So, if a suspect’s “signi�cant other” provides police with a key to the suspect’s
apartment, and police reasonably believe that she lives there, the search will not violate suspect’s Fourth
Amendment rights even if she did not live there and even if she, in fact, lacked authority to consent. See Illinois v.
Rodriguez, 497 U.S. 177 (1990).
EXAMPLE: Of�cer Warren knocks on a murder suspect’s door. The door is answered by
the suspect’s 6-year-old child, Timmy. The of�cer asks Timmy, “Is it okay if I come in and
talk to your Dad? He’s expecting me.” And then walks into the apartment. He then sees
the suspect, Roland, sitting on the sofa oiling his illegal Tommy-gun, the suspected
murder weapon. He arrests Roland for possession of the gun and seizes the evidence.
Because Timmy, being a small child, was not legally able or authorized to give consent,
the entry was illegal and the evidence will be excluded.
4. Stop & Frisk
Police may stop a suspect so long as there is a reasonable suspicion of a criminal act and the of�cer can articulate
facts leading to that suspicion. The evidence necessary for “reasonable suspicion” here is something beyond mere
suspicion, but is less than the level required for probable cause. If there is reason to believe that the person may be
armed and dangerous, the police can also frisk the suspect. See Terry v. Ohio, 392 U.S. 1 (1968).
EXAMPLE: Of�cer P. Harker’s peers often joke that he has something akin to a “spidey-
sense” which tells him when folks are up to no good. While enjoying a cup of coffee at
his favorite donut shop, Of�cer Harker’s neck hairs stand up straight. He immediately
goes outside where he sees Ivan walking down the street, carrying a small duffel bag. He
orders Ivan to stop and drop the bag. When the bag falls, Of�cer Harker hears the
clanging of metal against metal. He then frisks Ivan and discovers a hidden pistol in Ivan’s
pocket. He then searches the duffel bag and discovers ammunition and several illegal
hunting knives. Despite the fact that Of�cer Harker’s “spidey-sense” proved accurate
once again, the evidence will be excluded as he cannot articulate any reason why he
stopped Ivan, other than his unusually active neck hairs.
5. Automobile Exception
Because vehicles are obviously highly mobile, a warrant is not required to search vehicles if police have probable
cause to believe the vehicle contains evidence of a crime, the instrumentalities of crime, contraband, or the fruits of
a crime. Although commonly referred to as the “automobile exception,” this rule applies to any vehicle, including
boats. While in some ways, it is quite a broad exception, this rule limits the ability to search those areas that might
contain evidence of the type suspected to be present. In other words, if police suspect that the occupant of a boat is
smuggling people across the border, searching a small tackle box on board would not be permissible. However, if
they were looking for drugs, they could search the tackle box. The rationale is that, if an of�cer has to take the time
to obtain a warrant, the vehicle might be out of reach before the warrant can be issued and executed. See Carroll v.
United States, 267 US. 132 (1925).
EXAMPLE: Of�cer Demidum has reason to believe that an abandoned car on the corner
contains illegal drugs in the trunk. The car is missing all four wheels and is up on cinder
blocks, and the engine was stolen long ago. Assuming that the automobile exception
applies, Of�cer Demidum uses a crowbar to force open the still-working lock on the
trunk. There, he �nds 10 kilos of cocaine. Rushing back to the station house to show off
the evidence to his Captain, Of�cer Demidum runs into Judge Sosad. Judge Sosad says
“You should have called me �rst. While it’s great to get the drugs off the street,
unfortunately we can’t use this as evidence against anyone. The search was illegal, as the
automobile exception to the warrant requirement only applies when the vehicle is
actually capable of being moved. That’s the whole point of the exception!” A dejected
Demidum continues on to the station, where he has to tolerate cars drawn in shaving
cream on his locker for the next month.
6. Emergencies/Hot Pursuit
The rationale here is similar to the automobile exception. Evidence that can be easily moved, destroyed or otherwise
made to disappear before a warrant can be issued may be seized without a warrant. Furthermore, if a suspect enters
private property while being pursued by of�cers, no warrant is required to enter that property in order to continue
pursuit, even if the suspect is in no way connected with the property owner.
In Kentucky v. King, 563 U.S. 452 (2011), the U.S. Supreme Court clari�ed exactly how far the exigent/emergency
exception applies. In King, Kentucky police attempted to purchase illegal drugs from a suspect. After the
transaction, the suspect proceeded toward a nearby apartment complex. An of�cer radioed that he saw the suspect
go into the apartment on the right. When of�cers entered the apartment building, they smelled marijuana emanating
from the apartment on the left, therefore, they knocked, extremely hard (“as loud as they could”), on the door and
announced their presence. After the of�cers heard shuf�ing and a toilet �ush, noises considered to be “consistent
with the destruction of evidence,” the of�cers kicked in the door and found a gentleman (not the original suspect) on
a sofa smoking marijuana and cocaine. Upon further search of the apartment law enforcement located more illegal
drugs and paraphernalia. At trial, King �led a motion to suppress, but was denied at both the state circuit court and
court of appeals levels. On review, the Kentucky Supreme Court reversed and held the search violated the Fourth
Amendment. The case then proceeded via writ of certiorari to the United States Supreme Court. The United States
Supreme Court, reversing the Kentucky Supreme Court, held that no warrant was required because the of�cers
faced exigent circumstances, an emergency situation, where it was reasonable to conclude that evidence was being
EXAMPLE: While running from police, Fred enters Joe’s garage and the police follow Fred
in. (They are not required to give up pursuit until such time as they can obtain a search
warrant for the premises.) While in Joe’s garage, police notice illegal drugs in plain view.
They can arrest Fred for his crimes, and they can also seize the drugs and arrest Joe for
possession of the drugs, even though Joe had nothing to do with Fred and the police
were in Joe’s garage only because of the hot pursuit of Fred!
Unless the fact-pattern �ts one of the six exceptions discussed above, a warrant is required for police to conduct a
search or seizure. Note that for Exception 1, search incident to a lawful arrest, and Exception 5, the automobile
exception, although no warrant is required, there is a probable cause requirement. For a search incident to a lawful
arrest, the of�cer must have had probable cause for the original arrest. If the original arrest was unreasonable or
unlawful, the evidence discovered from the search will be excluded as fruit of the poisonous tree (see the
subchapter on the Exclusionary Rule). For the Automobile Exception, the of�cer must have probable cause to believe
that the vehicle contains evidence of a crime, instrumentalities of a crime, contraband, or fruits of a crime, whether
the vehicle is moving or already stopped. Exception 4 (“stop and frisk”) does not require probable cause, but does
require “reasonable suspicion.” Only Exception 3 (consent) requires no grounds on the part of the police for making
Fourth Amendment: Exceptions to the Warrant Requirement (Part I)
Fourth Amendment-Warrant Requirement Exceptions (Part II)
Video-Course: Exceptions to the Warrant Requirement – Module 3 of 5
Video-Course: More Exceptions to the Warrant Requirement – Module 4 of 5
Short Video: Fourth Amendment: Exceptions to the Warrant Requirement (Part I)
Short Video: Fourth Amendment-Warrant Requirement Exceptions (Part II)