Probable Cause Exceptions

PROBABLE CAUSE EXCEPTIONS

As with any rule, there are exceptions. Unfortunately, in American law there are not only exceptions,

but exceptions to the exceptions, and even exceptions to those exceptions. We try to make it the least

confusing as possible. Some of the main exceptions to probable cause, but a non-exhaustive list are: (1)

Search Incident to Arrest; (2) Exigency Circumstances; (3) Automobile Exceptions; (4) Plain View

Exceptions; (5) Inventory of Vehicles Exceptions; (6) Closed Container Exceptions; (7) Community

Caretaker Exceptions; (8) Apparent Authority to consent Exceptions; (9) Closed Military Bases

Exceptions; (10) Actual Authority to Give Consent Exception; (11) Consent Generally Exception; (12)

Parole/Probation Searches Exceptions; (13) Border Searches Exceptions; (14) Extended Border Searches

Exceptions; and (15) Protective Sweeps Exceptions.

SEARCH TO INCIDENT EXCEPTION

As discussed above, the United States Supreme Court has held "Among the exceptions to the warrant

requirement is a search incident to a lawful arrest." [Arizona v Gant, 556 U.S. 332, 338 (2009)]. This type

of search legally extends to the arrestee's person and the area within his immediate control, which

includes the area into which an arrestee might reach in order to grab a weapon or evidentiary items.

[Chimel v California, 395 U.S. 752, 763 (1969)]. and a "search can be incident to an arrest only if it is

substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest."

[Stoner v California, 376 U.S. 483, 486 (1964); United States v Chadwick, 433 U.S. 1, 15, 97 (1977),

abrogated on other grounds by California v Acevado, 500 U.S. 565 (1992)([W]arrantless searches of

luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest

either if the search is remote in terms of time or distance from the arrest, or no exigency exists.)].

Under this Doctrine, law enforcement may search personal property that is immediately associated

with the accused. [United States v Robinson, 414 U.S. 218, 236 (1973)("Having in the course of a lawful

search come upon the crumpled package of cigarettes, he was entitled to inspect it. . . ") United States v

Chadwick, 433 U.S. 1, 15, abrogated on other grounds by California v Acevado, 500 U.S. 565

(1992)(holding that a 200 pound, locked footlocker could not be searched incident to arrest)]. The

United States Supreme Court has limited this exception to not include an accused's cell phone. [Riley v

California, 134 S. Ct. 2473, 2484 (2014)(holding that the search - incident doctrine does not permit the

warrantless search of cell phones because "[a] search of the information on a cell phone bears little

resemblance to the type of brief physical search considered in Robinson.")].

It should be noted that as explained earlier, there are exception even to the exceptions. Therefore,

we highly suggest you read our section under whichever category may apply to you. For example, if you

are doing research on someone who was arrested by their automobile then read that section, or if you

are researching information of someone who was arrested by their home or a third-party's home then

read those sections. We continuously try our best to reduce the complexities of these topics into an easy

to follow steps, but such complexities still can cause one to navigate back and forth.

Probable Cause Exceptions 2

EXIGENCY EXCEPTIONS

In 2011, the United States Supreme Court held that there is also an exception to the warrant

requirement in cases of exigency. [Kentucky v King, 131 S. Ct. 1849, 1856 (2011)("One well-recognized

exception applies when the exigencies of the situation make the needs of law enforcement so

compelling that [a] warrant search is objectively reasonable under the Fourth Amendment."(quoting

Mincey v Arizona, 437 U.S. 385, 394 (1978))]. There are several examples of what courts have

considered exigency, such as (1) emergencies [Bringham City, Utah v Stuart, 547 U.S. 398, 403-04 (2006);

Michigan v Fisher, 558 U.S. 45, 48 (2009) (upholding warrantless entry into a home based on emergency

aid exception)]. Law enforcement only need an objectively reasonable basis to believe someone inside

the house needs assistance. [Michigan v Fisher, 558 U.S. 45, 47 (2009)(quoting Bringham City, Utah, 547

U.S. 398, 406 (2006)]; (2) if they are in hot pursuit [Kentucky v king, 131 S. Ct. 1849, 1856

(2011)("[p]olice officers may enter premises without a warrant when they are in hot pursuit of a fleeing

suspect.")(citing United States v Santana, 427 U.S. 38, 42-43 (1976))]. This exception is intended "to

prevent the imminent destruction of evidence." [Bringham City, Utah, 547 U.S. 398, 403 (2006)(citing

Ker v California, 374 U.S. 23, 40 (1963))] and for (3) officer safety. [Chimel v California, 395 U.S. 752, 763

(1969)]. The burden is on the government to prove the existence of an exigency. [United States v

Robinson, 414 U.S. 218, 243 (1973)].

However, this exception does not apply if there is time to get a warrant. [Missouri v McNeely, 133 S.

Ct. 1552, 1572 (2013).] The United States Supreme Court has held that "technological developments

enable police officers to secure warrants more quickly" . . . so unless "there is compelling need for

official action and no time to secure a warrant" this exception does not apply. [Missouri v McNeely, 133

S. Ct. 1552, 1562, 1559 (2013)].

AUTOMOBILE EXCEPTIONS

In 1924 the United States Supreme Court recognized that citizens have an expectation of privacy in

their vehicles. [Carroll v United States, 267 U.S. 132 (1924)]. However, warrantless searches are

permitted with probable cause believing the vehicle contains contraband. [United States v Ross, 456 U.S.

798, 823 (1982)(citing Carroll v United States, 267 U.S. 132 (1924))]. This exception extends to any

containers found inside the vehicle so long as the search is limited to the actual object of the search.

[United States v Ross, 456 U.S. 798, 821-824 (1982)]. In other words, "[p]robable cause to believe that a

container in the trunk of a taxi contains contraband or evidence does not justify a search of the entire

cab." [United States v Ross, 456 U.S. 798, 824 (1982)].

This exception was crafted due to the impractibility of getting a warrant before the vehicle drives

away. [United States v Ross, 456 U.S. 798, 803-04 (1982)]. The United States Supreme Court has held "If

a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth

Amendment. . . permits police to search the vehicle without more." [Pennsylvania v Labron, 518 U.S. 938, 940 (1996)(per curiam)]. Although this is not completely true, because even when a car is not

immediately mobile, law enforcement have another justification at their disposal: "the lesser

expectation of privacy from its use as a readily mobile vehicle." [California v Carney, 471 U.S. 386, 391

(1985)].

INVENTORY SEARCHES OF VEHICLES EXCEPTIONS

Once the accused has been arrested and law enforcement impounded the vehicle a search is

permitted for creating an inventory. [Florida v Wells, 495 U.S. 1, 4 (1990)]. The United States Supreme

Court justifies this exception because it protects the owner's property and avoids disputes but the

search must be conducted pursuant to established procedures and policies. [Illinois v Layfayette, 462

U.S. 640, 648 (1983)]. However, there are no limits set by the Supreme Court of the scope or breath of

these policies. Law enforcement can have a policy of opening all containers or no containers as long as

the policy is not a ruse to fish for discriminating evidence. [Florida v Wells, 495 U.S. 1, 4 (1990)], and if

they happen to find something illegal then its legal to use. One should remember that the bar for what

qualifies as a ruse is very high for an accused to meet and very low for the government to overcome.

This exception applies when law enforcement lawfully arrest the occupant of an automobile, [New

York v Belton, 453 U.S. 454, 460 (1981)("[W]hen a policeman has made a lawful custodial arrest of the

occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger

compartment of that automobile.")]. Although in 2009 the United States Supreme Court clarified "that

Belton does not authorize a vehicle search incident to a recent occupants arrest after the arrestee has

been secured and cannot access the interior of the vehicle." [Arizona v Gant, 556 U.S. 332, 335 (2009)].

This exception does apply, however, if law enforcement reasonably believes that evidence of the

offense of arrest might be found in the vehicle. [Arizona v Gant, 556 U.S. 332, 335 (2009)], however, the

United States Supreme Court restricted this exception. "In many cases, as when a recent occupant is

arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant

evidence." [Arizona v Gant, 556 U.S. 332, 343, (2009)(citing Atwater v Lago Vista, 532 U.S. 318, 324

(2001) and Knowles v Iowa, 525 U.S. 113, 118 (1998)).

PLAIN VIEW EXCEPTIONS

The Plain view doctrine is used in a lot of situations. This exception to the warrant requirement

applies "if police are lawfully in a position from which they view an object, if (1) it's incriminating

character is immediately apparent, and (2) if the officers have a lawful right of access to the object, they

may seize it without a warrant." [Minnesota v Dickerson, 508 U.S. 366, 375 (1993)(citing Horton v

California, 496 U.S. 128, 136-37 (1990))]. However, the United States Supreme Court has held, "the

distinction between looking at a suspicious object in plain view and moving it even a few inches is much

more than trivial for purposes of the Fourth Amendment." [Arizona v Hicks, 480 U.S. 321, 325 (1987)].

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