Attorneys get asked often, “When can officers search you or your car without a warrant?” Well first off, if an officer ever asks, “Can you empty your pockets for me?” or “Can I take a look in your car?” or anything similar, the answer is always a polite “No you may not.” In the thousands of hours of police video I have watched over the years, one thing that always surprised me was how willingly people consented to officers searching a person and their car. The clients’ response when I asked why they consented was always “They were going to search anyway.” That may be true, but they must follow the rules.
There are five exceptions to the warrantless search rule but they still all require probable cause that would meet the requirements necessary to get a warrant. Generally, probable cause exists when the officer has trustworthy information that criminal activity has occurred or is about to occur. The five exceptions are:
- Plain View. It is exactly as it sounds. The officer is lawfully in a place where he/she can see the item that they have probable cause to believe is either contraband or evidence of a crime.
- Mobile Conveyance. This is a search of your vehicle. Laws are in a constant flux about when officers have probable cause for this type of search, however they can search in all containers in the vehicle in which they believe the “probable cause” evidence can be found. In other words (and for illustrative purposes only), if the evidence the officer is looking for is an elephant, the officer cannot search the glove box.
- Destruction of Evidence is an exigent circumstance that allows an officer to conduct a search. In the movies this if often portrayed by the officers knocking on the drug house and busting in as the drugs are being flushed down the toilet. But like all the Hollywood scenarios, in reality things are not that simple. I have seen this most often used in getting blood drawn when someone suspected of driving under the influence is being taken by ambulance to the hospital. The officers know they need the person’s blood before any medication or fluids are administered that could alter the results of the test.
- Fresh Pursuit is another exigent circumstance permitting a search. Here the officer is in immediate or continuous pursuit of a person that the officer has probable cause to believe has committed a serious crime – and if the person enters a structure, the officer needs probable cause to believe the person is inside the structure in order to search the physical location.
- Emergency Scene is the last of the exigent circumstances. This is the warrantless entry for the safety of the public. Entry into a building absent a warrant is permitted if, for example, law enforcement receives a 9-1-1 call where the caller is screaming “They are going to kill me.” or officers arriving on a scene and hear “Help, they are killing me.” Of course, this too has requirements to be reasonable.
In addition to the warrantless searches requiring probable cause, there are five types of searches that do not require probable cause or have a determination that the need for it, as articulated by the officer, is enough to be probable cause. You are probably starting to see that there can be small nuances in a criminal case that can impact whether or not a search was legal. This is where an experienced criminal defense attorney can make a real difference…and I will cover the next five scenarios in my next article. Stay tuned!
About the Author: Ms. Angel is a criminal defense attorney with years of experience as both a prosecutor and a public defender, as well as a law enforcement experience.
This article is for general information only and is not intended as and does not constitute legal advice or solicitation of a prospective client. It should not be relied on for legal advice in any factual circumstance.