Do You Have a Warrant? The Fourth Amendment & Warrantless Searches

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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. – The Fourth Amendment (1791)

Just the other day, I was watching a movie on Netflix. In one scene, two police officers knocked on the door of a teenage house party. The parents of the kid hosting the party were, of course, out of town. The police continued to knock and the kids inside continued to ignore them. “Do you have a warrant?” The teenagers yelled through the door, infuriating the two police officers.

As I watched this scene, I thought about all of the times I’ve heard that question posed in movies or television shows such as Law & Order? “Do you have a warrant?” It then dawned on me that many people don’t know that there are situations, in which, law enforcement can conduct a search of your home or car without a warrant—known as warrantless searches. Just in case you didn’t know, there are exceptions to the warrant requirement of the Fourth Amendment.

Exceptions to the Warrant Requirement of the Fourth Amendment

In general, warrantless searches are unconstitutional unless they fall within one the following warrant exceptions:

  1. Search Incident to a Lawful Arrest
  2. Automobile Exception
  3. Plain View
  4. Consent
  5. Searches Pursuant to a Stop
  6. Hot Pursuit
  7. Exigent Circumstances

Search Incident to a Lawful Arrest

In order to protect arresting officers and to prevent the destruction of evidence, law enforcement making an arrest may conduct a cursory scan or protective sweep of the defendant’s person as well as the area within the defendant’s immediate control. Thus, if police officers are arresting a suspect within his or her home, they may search the suspect’s residence provided that there is reasonable suspicion that danger is lurking (i.e. they can open a closet door to see if an armed individual could possibly be hiding there but not a dresser drawer).

Automobile Exception

The Supreme Court has ruled that when a vehicle is lawfully stopped, the police can search the area within arm’s length of the driver without a warrant, provided that there is probable cause and not just a mere hunch that the driver is involved in wrongdoing.

Plain View

Under the plain view doctrine, a police officer may follow an arrestee into his or her house and then lawfully seize any contraband that is in plain view. The police may seize property that is clearly visible in plain view without a warrant if: (1) the police are lawfully present at the place where the object can be seen; (2) the officers have a lawful right of access to the object; and, (3) it is immediately apparent that the object is incriminating.


An individual may voluntarily waive his Fourth Amendment rights and consent to the search of his or her home/car. Warrantless searches based on consent require no justification. However, in order for a defendant’s consent to be effective, it must be a voluntary and intelligent decision made without coercion. In regards to third-party consent, the person consenting must have either actual or apparent authority to consent. Therefore, a person who is not an owner or occupant of the premises being searched cannot give consent. However, a person who is at the scene and has a key to the premises is assumed to have apparent authority to consent to the search.

Searches Pursuant to a Stop

Within the meaning of the Fourth Amendment, a stop is a seizure. A stop may take place in public/on the street, or within a person’s home or car. Although probable cause is not required for a short, investigatory stop, reasonable suspicion that criminal activity/wrongdoing may be taking place is constitutionally required.

Hot Pursuit

When a police officer is in “hot pursuit” of a suspect who is fleeing the scene of a crime and the suspect runs into a house—whether he lives there or not—the police officer may seize any evidence and/or contraband they find in the residence.

Exigent Circumstances

Quite possibly the most utilized warrantless search exception is that of exigent circumstances. Which, allows law enforcement in emergency situations to conduct a warrantless search or seizure where they suspect that evidence may be lost or destroyed before a warrant can be obtained.

Supreme Court Rulings & the Warrant Requirement Exceptions

In Minnesota v. Olson, 495. U.S. 91 (1990), the Supreme Court held that a state court had applied the correct standard when it identified the following exigencies as circumstances that justified the warrantless entry of a home: (1) hot pursuit of a feeling felon; (2) imminent destruction of evidence; (3) the need to prevent a suspect’s escape; or (4) risk of harm to the police or others, inside or outside of the dwelling.

In Kentucky v. King, 131 S. Ct. 1849 (2011), the police smelled burnt marijuana emanating from an apartment door, which gave them probable cause to search the premises for drugs. Instead of seeking a warrant, the officers knocked loudly on the door and announced their presence. The officers stated that they “could hear people inside moving” and “it sounded as though things were being moved inside the apartment.” The officers believed that drug evidence was about to be destroyed and they entered the apartment without a warrant. The Supreme Court held that their entry was constitutional.

Chimel v. California, 395 U.S. 752 (1969), is the benchmark search-incident-to-lawful-arrest case. In Chimel, the police had an arrest warrant for Chimel but not a search warrant. They arrested Chimel in his three-bedroom home for burglary and then proceeded to search the entire premises and seize various items. In a 7-2 ruling, the Court concluded that the police may conduct a warrantless search of the arrestee and the area in his immediate control, but that they could not search the entire house without a warrant.

In Washington v. Chrisman, 455 U.S. 1 (1982), a college student was arrested in a public place for underage possession of alcohol. He sought permission to retrieve his identification from his dorm room. The arresting officer agreed and followed him to his room. While the college student was inside, the officer remained outside the door but could see that marijuana and drug paraphernalia was inside the room. The officer entered the room and seized the items. The Court held that the warrantless entry was permissible.

The automobile exception was first established in the Supreme Court case, Carroll v. United States, 267 U.S. 132 (1925). In Carroll, federal officers stopped the occupants of a vehicle on the highway and searched it without a warrant for “bootleg” liquor. At the time of the stop, the officers had probable cause to search the vehicle for contraband but did not have authority to arrest the occupants unless they found evidence in the vehicle. The Court upheld the warrantless search for contraband, stating that “in cases where the securing of a warrant is reasonably practicable, it must be used.” The Court went on, however, to state that “a necessary difference exists between a search of a [dwelling house]” and an automobile because a “vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”

Contact Bixon Law

An experienced attorney can accurately explain to you whether or not a particular search is lawful or unlawful. Depending on the facts, the exceptions to the warrant requirement mentioned in this blog post may or may not be applicable to your case. And, if they aren’t, you Fourth Amendment rights may have indeed been violated. If you believe you are a victim of an unlawful search or seizure, please call us at 404-551-5684 for a free consultation today.

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