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Exceptions to the Warrant Requirement

 Exceptions to the Warrant Requirement

The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure in their persons, homes, papers, and effects against unreasonable searches and seizures. The due process clause of the Fourteenth Amendment extends this right to protect against intrusions by state governments. See Mapp v. Ohio.

As a general rule, warrantless searches and seizures are per se unreasonable. There are however "a few 'jealously and carefully drawn exceptions' to the warrant requirement." See State v. Garvin. The state bears the burden of showing that the search falls within one of the "narrowly drawn" exceptions. See State v. Jones.  Below are listed well known exceptions.

Search Incident to Arrest Exception

During the lawful arrest of a suspect, the arresting officer may conduct a warrantless search of the arrestee in order to remove any weapons and to search for and seize any evidence on the arrestee's person to prevent its concealment or destruction. The officer may also search the area within the arrestee's immediate control where he or she might gain possession of a weapon or destructible evidence. The exception only applies when the officer intends to formally, lawfully arrest a person and remove him or her to the law enforcement station.

Caretaker Exception
Law enforcement officers may conduct warrantless, full body searches of an arrestee prior to incarceration. Such a search is permitted in order to prevent the introduction of weapons, illegal drugs, and other contraband into a jail or prison, and to protect the arrestee's property and the jail administration's liability for claims of lost or damaged property. Also, law enforcement officers may conduct warrantless searches of a probationer's home where an explicit condition of that person's probation is to submit to warrantless searches at any time.

Plain View Exception

Law enforcement officers may seize incriminating evidence that is in "plain view" without a warrant, provided that the following is true: (1) the officer is in the area lawfully; (2) while in that area, he or she makes an inadvertent discovery of incriminating evidence; and (3) it is immediately apparent to the officer that the item is evidence. For example, if, upon executing a search warrant on a person's home for evidence of tax fraud, the officer sees illegal drugs sitting in plain view on the kitchen table, the officer may seize the drugs without amending the search warrant.

Investigative Stop and Protective Search Exception
In what is known as a "Terry stop", a police officer may briefly stop and detain an individual for investigation without a warrant if the officer reasonably suspects the person is engaged or about to be engaged in criminal conduct. The officer may also briefly frisk the individual for weapons if he reasonably believes his safety or that of others is endangered. For a Terry stop and frisk to be permissible, the State must show that  (1) the initial stop is legitimate; (2) a reasonable safety concern exists to justify the protective frisk for weapons; and (3) the scope of the frisk is limited to the protective purposes. See Terry v. Ohio.

Consent Exception

A person may consent to a warrantless search and seizure. Consent to a search effectively waives that person's constitutional right against unreasonable searches and seizures. A person does not have to give law enforcement officers consent to conduct a warrantless search and seizure, he may revoke his consent at any time, and he may limit his consent (i.e., he may consent to a search of only a limited area and/or for a limited purpose). Also, consent must be voluntary — consent may not be obtained through duress or coercion. 

Exigent Circumstances Exception

Law enforcement officers may conduct warrantless searches and seizures where exigent circumstances exist. For example, warrantless searches and seizures are permitted where the delay associated with obtaining a search warrant would threaten the destruction of evidence or endanger the safety of third persons. Officers may enter a dwelling, vehicle, or other area of privacy if they have a reasonable belief that there is an immediate need for their assistance for the protection of life or property, the search is not primarily motivated to arrest and seize evidence, and there is probable cause to associate the emergency with the place to be searched.



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