Exceptions to the fourth amendment warrant requirement

What are the exceptions to the Fourth Amendment warrant requirement?

You may already know that, if the police search your person, house, or vehicle without a warrant, any evidence they find will be excluded in court – they won’t be able to use it against you.

But did you know that, in many cases, police aren’t required to get a warrant before searching? When law enforcement can identify one of the many exceptions to the search warrant requirement, 1) they are not required to get a warrant, and 2) any evidence they find can be used against you in court…

In this article, we will provide an overview of the exceptions to the Fourth Amendment warrant requirement and the effect that this might have on your case, including:

• A brief description of the most common exceptions to the Fourth Amendment warrant requirement,
• Why it matters – how the exclusionary rule could affect your case, and
• How law enforcement officers are trained to use the Fourth Amendment exceptions to search your home or vehicle without a warrant.

WHAT ARE THE EXCEPTIONS TO THE FOURTH AMENDMENT WARRANT REQUIREMENT?

Despite what you may have heard, the Fourth Amendment to the US Constitution does not say that police must get a warrant before searching you or your home.

It does say that any searches or seizures by the government must be reasonable, and, if a warrant is issued, it must be based on probable cause, and it must be specific about where the police will search and what they are authorized to seize:

Amendment IV

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.

Article I, Section 10 of the SC Constitution contains a similar clause, with the added provision that the government will not unreasonably invade a person’s privacy:

SECTION 10.

Searches and seizures; invasions of privacy.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy 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, the person or thing to be seized, and the information to be obtained.

The courts have interpreted this as a requirement that 1) law enforcement have probable cause (or, in some cases, a reasonable suspicion) before searching or seizing a person, vehicle, or other property, and 2) law enforcement must get a warrant based on probable cause before searching or seizing a person, vehicle, or other property unless one of the many exceptions apply.

Even when an exception applies, the defendant can usually later challenge the search or seizure based on a lack of probable cause (or reasonable suspicion, depending on the circumstances) in court.

What are the Exceptions?

The exceptions to the Fourth Amendment warrant requirement include:

• Consent: Police will almost always begin a search by asking for consent because there is usually no need for a warrant if you or the owner of the property permit them to search.
• The automobile exception: Despite what you may have seen in YouTube videos, police do not need a warrant to search your vehicle during a traffic stop (if it is parked in the driveway that may be different), although they are required to have probable cause (or reasonable suspicion, depending on the circumstances).
• Search incident to arrest: When police are arresting someone, they do not need a warrant or additional probable cause to search the person or the immediate area around the person, because the person must be searched anyway.
• Inventory exception: When a vehicle is going to be towed following an arrest, police do not need a warrant to search the vehicle, because it is going to be searched and inventoried anyway.
• Inevitable discovery: As with search incident to arrest and the inventory exception, police do not need a warrant when the discovery of the evidence would have been inevitable whether the police got a search warrant or not.
• Plain view: If the police see contraband or other evidence of a crime in “plain view,” they do not need a search warrant to seize the evidence.
• Plain feel: If a police officer feels something that is obviously contraband during a pat-down or “Terry frisk,” they do not need a warrant to seize the contraband.
• Terry frisk/ Terry search: When law enforcement has a “reasonable suspicion” that a person is armed and dangerous or that “crime is afoot,” they do not need a warrant or probable cause to “frisk” the person, do a “pat down” searching for weapons, or search the interior of a vehicle where weapons could be found.
• Hot pursuit: Depending on the circumstances, police may not need a warrant to enter a home if they are actively pursuing a suspect.
• Exigent circumstances: Police are not required to get a warrant when there are “exigent circumstances” that would make it impracticable to get a warrant – for example when a suspect is likely to destroy evidence, escape, hurt someone, or present a danger to law enforcement officers.
• Protective sweep: When police make an arrest, they are allowed to make a protective sweep of the location to ensure there are no other individuals present who may present a threat to the officers.
• Open fields: Police can fly over a person’s property and look for evidence of contraband in “open fields” even when it is located on private property.
• Abandonment: If a person has abandoned their property, law enforcement can seize that property and search it (for example, a cell phone inadvertently left at a crime scene).
• Special needs exceptions: When the government’s interest in searching is more important than the individual’s interest in privacy (according to the court), the government does not need probable cause, although they may still be required to iden