Warrantless Searches

Although the Fourth Amendment to the U.S. Constitution does not specifically require a warrant as a predicate to a valid search or seizure, the U.S. Supreme Court has generally imposed a warrant ‘‘preference’’ (see United States v. Chadwick [1977]). In other words, the Court tends to presume that warrant- less searches are unconstitutional. Despite the warrant preference, the Court has upheld warrantless searches in a variety of contexts. The Court’s decisions are fully consistent with the literal language of the Fourth Amendment, which only prohibits ‘‘unreasonable’’ searches and seizures. In general, in deciding whether a warrantless search is permissible, the Court asks whether it is reasonable to proceed without a warrant.

Over the decades, the Court has sustained a variety of exceptions to the warrant requirement. One such exception is the so-called ‘‘automobile exception’’ to the warrant requirement. Under this exception, the police may search an automobile when they have probable cause to believe that it contains the fruits, instrumentalities, or evidence of crime. In California v. Carney (1985), the Court held that this exception to the warrant requirement is justified by the ‘‘diminished expectation’’ of privacy associated with automobiles (diminished, vis-a`-vis, for example, homes), the fact that automobiles are mobile, and that probable cause to search a vehicle can arise unexpectedly. In defining the exception, the Court has held that the scope of the automobile exception can extend to any place in the vehicle that the police have probable cause to believe that the fruits, instrumentalities or evidence of crime can be found. In some cases, the exception will justify a search of the entire vehicle.

Warrantless searches have also been upheld at border crossings and airports. Border searches have generally been upheld on the basis that the United States has the right to control its borders and to prevent the introduction of contraband into the country. Airport searches have generally been upheld as consensual. In other words, by trying to avoid airplanes, passengers consent to searches of their persons and luggage.

Warrantless searches are also permitted under the search incident to legal arrest exception (see Chimel v. California [1969]). Under that exception, the police are entitled to search a suspect whom they have legally arrested because the person being arrested might have a weapon that he can use to effect escape, or may have evidence that could be destroyed. The search incident exception authorizes the police to conduct a search and to remove any weapons or evidence they find. However, given the justifications for the search, Chimel held the scope of the search should be limited to the area within the arrestee’s ‘‘immediate control.’’

In recent decades, in addition to continuing recognize the traditional exceptions to the warrant requirement, including those listed above, the Court has created new exceptions using the so-called ‘‘need’’ versus ‘‘intrusion’’ test. Under this test, first articulated in the Court’s decision in Camara v. Municipal Court (1967), the Court balances the ‘‘need’’ for the search against the level of ‘‘intrusion’’ caused by the search. Based on this balancing, the Court decides whether the police may search without a warrant. In Camara, the Court used this test to create a new exception for administrative inspections—inspections that are generally conducted by administrative officials (for example, food inspectors, elevator inspectors, mine inspectors) to determine whether individuals or businesses are in compliance with regulatory codes.

Perhaps the broadest use of the need versus intrusion test is in the so-called ‘‘stop and frisk’’ cases. The stop and frisk exception to the warrant requirement was first articulated in the Court’s landmark holding in Terry v. Ohio (1968). In that case, the Court used the need versus intrusion test to hold that, when a police officer reasonably believes that criminal activity is afoot and that the suspects are armed and dangerous, the officer may ‘‘stop’’ the individuals (a seizure under the Fourth Amendment) to make inquiry. If the officer stops the individuals, and his questions fail to dispel his fears, the officer can conduct a limited pat down of the suspect (a search for Fourth Amendment purposes) to determine whether he is in possession of weapons. In Terry, the officer had reason to believe that the suspects were carrying weapons in preparation for a holdup of a store. Since robbers usually carry weapons, the officer could reasonably conclude that the suspects were ‘‘armed and dangerous.’’ The officer stopped the suspects and made inquiry, but did not receive satisfactory responses. At that point, the officer frisked the individuals and found that they were in possession of concealed weapons. The Court upheld the pat down as a valid stop and frisk. The need for the search (to intervene against suspects who appeared to be engaged in criminal activity and who appeared to be armed and dangerous) outweighed the intrusion (the pat-down).

In a series of subsequent cases, the Court has extended the ‘‘need versus intrusion’’ test and the ‘‘stop and frisk’’ exception to a variety of contexts and authorized a number of other warrant-less searches. For example, in Maryland v. Buie (1990), the Court found that when the police entered a house to arrest a felony suspect, they had reason to believe that other armed individuals might be present in the house. Under such circumstances, the Court held that the police were justified in making a protective sweep of the house in an effort to ensure ‘‘that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.’’ The Court found that the ‘‘need’’ for the search (to protect the police against possible attack) justified the ‘‘intrusion’’ (a cursory inspection of the remainder of the house.

As the foregoing exceptions reveal, warrantless searches are a well-established part of police searches under the Fourth Amendment.

RUSSELL L. WEAVER

References and Further Reading

  • Weaver, Russell L., Leslie W. Abramson, John M. Burkoff, and Catherine Hancock. Principles of Criminal Procedure. St. Paul, MN: Thomson/West 2004.
  • Weaver, Russell L., Leslie W. Abramson, Ronald Bacigal, John M. Burkoff, Catherine Hancock, and Donald E. Lively. Criminal Procedure: Cases, Problems & Exercises. 2nd ed. St. Paul, MN: Thomson/West, 2001.

Cases and Statutes Cited

  • California v. Carney, 471 U.S. 386 (1985)
  • Camara v. Municipal Court, 387 U.S. 523 (1967)
  • Chimel v. California, 395 U.S. 752 (1969)
  • Maryland v. Buie, 494 U.S. 325 (1990)
  • Terry v. Ohio, 392 U.S. 1 (1968)
  • United States v. Chadwick, 433 U.S. 1, 9 (1977)

See also Privacy; Probable Cause; Stop and Frisk

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