LAW BASICS FOR THE NON-SHARKIES – EXCEPTIONS TO THE WARRANT RULE PART 1

(As always, this isn’t to be taken as any kind of legal advice, just some very simplified basics for the lay person, and a little bit of ranting lawyer.)

I said in my last post I would put up the exceptions to the warrant rule in the next one.  There are 11  Well, it’s complex so I’m actually going to do the exceptions in two parts (I know, I know, I keep teasing you).

Today will be on exceptions if you’re NOT traveling in a vehicle.

1. Search incident to a lawful arrest: They have to do the search at basically the same time they are arresting you and it has to be in the areas you could reach.  The idea is that cops should be able to search the person and nearby for weapons or evidence the person may try to grab or destroy before they’re hauled out.

2. Plain view: If the things in plain view and it’s obviously something illegal, then the officer can seize it.  This has been extended to plain touch, as in if the cop can touch the object and it’s incriminating character is immediately apparent then the cop can seize it.

3. Consent: as long as it’s voluntary and intelligent.  This one seems like a duh, but it’s often overlooked.  Or people think they have to say yes if a cop asks them if he can search.  Now, third party consent is where it gets really complicated here.  Basically if the person has a right to use the area, then she can say yes or no to a search, but it gets really iffy on what counts as having a right to the area and even if the person didn’t, did the cops reasonably believe the person did.

4. Stop and frisk.  Yep, you read right, the cops can stop you on the street and frisk you right there as long as they have “reasonable suspicion.”

5. Exigent Circumstances: Like they believe the evidence will disappear if they have to wait for a warrant, like the suspect will wash the blood out from under his fingertips.

6. Hot pursuit: If they’re running after you and you hit your threshold, you don’t just get to call olly olly oxen free.  They can follow you in.

7. Special needs searches: Stuff like searching kids’ stuff in school.  The basic rule is it’s reasonable to search as long as the measures are reasonably related to the objective of the search and it’s not excessively intrusive.

8. Admin: This is like airline passengers being fondle… I mean searched by TSA, businesses being searched when they’re in a highly regulated industry, parolees and their homes being searched, and government employees’ files at work.

9. And my big favorite: Searches “at the border.”  There’s a lot more to it, but basically the 4th amendment goes out the window if you’re trying to cross, or are even near, the border.

So that’s how the cops can search and seize your stuff even without a warrant.  And I can tell you, it’s a hell of a lot more common for them to do that than to get a warrant first.

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