7 Exceptions to the Warrant Requirement
(Principles Police Rely on to Search or Arrest)
What prevents the police from searching every young male with dreadlocks? The 4th Amendment and Supreme Court case law.
The privacy interests of individuals in this country are embodied by the 4th Amendment to the United States Constitution. The case law over the years reflects the Supreme Court’s interpretation of the 4th Amendment as applied to particular circumstances. Today, there is a large body of law on both the federal and state level court systems. Why do we care about these cases? Simple. If a stop is unlawful, or if a search is illegal, the evidence found as a result of that illegality may be suppressed (ultimately helping the defendant win the case). In many cases, the easiest way from arrest to courtroom victory is through the veins of the 4th Amendment.
General Rule: Police Need Warrant to Search or Arrest
Very generally speaking, police need a warrant if they want to arrest or search you. Just like most rules, exceptions apply. It is important to know and understand your rights and privacy interests, and the first step is learning when the police can impede your liberty interests without a warrant from a magistrate based on probable cause.
This is an extremely important area of criminal law and procedure – not just in Virginia, but across the country – because the principles are derived from the United States Constitution and United States Supreme Court. Furthermore, many criminal cases are won through a “motion to suppress.” If police have exceeded the bounds of what is permitted, then one or more doctrines may apply, most notably the “exclusionary rule,” which essentially states that a 4th Amendment violation should lead to the exclusion of evidence improperly seized.
7 ways police make arrests, perform searches, and seize property
If you are arrested, police may search not only what is on your immediate person, but also the area within your immediate control.
This means compartments in a vehicle, under a passenger seat, and basically anywhere your arms can extend or reach.
How do police sometimes exceed the boundaries of this exception to the warrant requirement? First, the police may not rely on a warrantless search incident to arrest if the person is not in custody (for example, if you are issued a citation or Summons and are free to leave).
Second, the underlying arrest must be lawful. Discussion related to lawful or unlawful arrests is beyond the scope of this article (for more on when this charge often arises, read about the charge, Assault on a Police Officer on our main assault page).
Police can search your vehicle if it is impounded.
According to several cases3, if a vehicle is seized, or even impounded, a search without a warrant can be conducted as long as there is a danger or chance it will be moved. This can happen if you are arrested for Driving While Intoxicated (or in a number of other situations, for example, if there is a warrant for your arrest).
It is also important for passengers to recognize the risks involved if traveling with another person who is stopped. If lawfully stopped, the driver and passenger(s) can be detained.4
Police can search your car if a passenger in that car is arrested.
If the passenger (or driver for that matter) is arrested, then police are allowed to search:
- The passenger compartment, if the arrested passenger is within reaching distance when the search takes place.5 ; or,
- Other areas, if it is reasonable to think the vehicle contains contraband or evidence linked to the alleged offense.
If the police are in lawful custody of a vehicle, they may search it without a warrant even if no crime has been committed.
The case law that has developed over time stands for the principle that it is OK for police to search an impounded vehicle, as long as it is pursuant to standard operating procedures, and for the protection of:
- Your car or your property;
- The police / officer from allegations of theft / missing property; and/or
- Both the public and police from harm items could pose.7
The police are not allowed to use the inventory search exception to the warrant requirement to conduct an investigation-type search. It must be pursuant to the purposes laid forth above.8
You do or say something to give consent (and it is voluntary).
Consent seems like a straightforward concept. Either one gives consent or they do not …or at least, one would assume the analysis would be so easy. Here are a few things to consider:
- You can be deemed to have consented to a search by non-verbal means. However, doing nothing (mere acquiescence) is not enough.
- Consent must be voluntary; voluntariness is determined by all of the surrounding circumstances. Coercion and / or duress may render consent involuntary in some cases.
- Your roommate or spouse can give consent to search if there is shared power over the household. Furthermore, the law enforcement official must reasonably belief the person providing the consent to enter and search indeed possesses such authority to consent.
The principles from this section to take away:
First, a consensual encounter with a police officer is one in which a person would feel free to not listen or obey the officer’s command to search. The consensual encounter is one in which you would feel completely free to ignore the officer and continue to carry out your business.
Second, police do not need to tell you that you have a right to refuse consent.9
(side-note: Personally, this does not make much sense to me, because no encounter with law enforcement is a fair encounter in that most people I know who have been in a situation report feeling anxiety and fear. Coercion and duress are not permitted of course, but there is some level of stress whenever a civilian encounters a law enforcement official who may suspect them of a crime (or they would not be conducting an investigation). Officers who are overly nice or friendly may be seeking to elicit information. No officer will be able to legally punish you for exercising your right to refuse consent. If that happens, then your Virginia criminal lawyer will remedy the issue.
There is something going on to warrant an extreme action (exigent circumstance).
An exigent circumstance is one so extreme, that a warrant would be impractical and/or the time required to obtain one would pose a threat to the safety of officers or the public.
Consider the following factors that are used to analyze whether or not a warrantless entry may be justified:
- How urgent was the situation and surrounding circumstances?
- Do the police have a reasonable belief you had a weapon?
- Did probable cause exist at the time of the entry?
- Is there a strong chance that had the police not apprehended you, you would have escaped?
- Did you recently enter the premises after being pursued?
- Was the alleged underlying offense a very serious or violent crime?
- Was the situation so urgent that it would have been a danger to take the time required to obtain a warrant?
- Did the officer reasonably believe that evidence was about to be destroyed?
- Was there a danger to other people, including but not limited to police at the scene?
- Is there information to suggest you are aware of an investigation or pursuit of you and/or of your narcotics or contraband?10
The exigent circumstances exception allows police to enter or apprehend without a warrant is factually driven, just like all 4th Amendment analysis. In this particular area, however, the courts have provided many examples of relevant factors applicable to many cases.
The principle that you should take away from this section:
The exigent circumstances exception only applies if the officer had an objectively-founded, reasonable basis to think such exigent or urgent circumstances existed at the time of entry. If a reasonable officer under the circumstances would not have had a reasonable basis to believe the situation was so dire, then the exception should not apply and the entry or arrest may be unlawful.
An illegal item is in plain view; or, an officer smells marijuana and can localize it to your person.
If something is clearly visible in plain view, law enforcement may seize the object only if:
- it is immediately obvious it is illegal in nature, and
- the officer was legally located in an area where the illegal item can be seen.
If a person has a baggie or container in their hand, or a rolled cigarette, does law enforcement have the right to rely on the plain view doctrine?
Absent other facts, no. An item commonly used for a legal, legitimate purpose may not be used to support a seizure based on plain view even if it is something frequently used for illegal purposes. Other criminal activity must accompany the otherwise innocuous item.11
Possession of marijuana charges frequently arise from an officer gaining probable cause from the odor of marijuana on a person. Under what is called the plain smell doctrine, a police officer who smells marijuana on you may search for marijuana.12
Some Virginia criminal lawyers and Fairfax defense attorneys believe the plain smell doctrine is not a proper principle of law and should be changed. Our Fairfax criminal lawyer shares this opinion.
Hopefully, the plain smell doctrine will cease to exist one day; it is perhaps the most frequently used basis for probable cause to search vehicles and people for marijuana. One issue some local Northern Virginia criminal attorneys have is that there are too many similar odors for the odor of Cannabis for plain smell to be considered reliable. Furthermore, there is too much wiggle room and personal perception as far as what does or does not smell like marijuana for the human nose to be used as a tool for detecting a plant with thousands and thousands of varieties and strains. K-9 units are one thing, but probable cause as a result of an odor an officer reasonably believes to be marijuana stretches the 4th Amendment’s privacy concerns to the limit.
What are police not allowed to do?
Here are a few things the police are not allowed to do:
- If law enforcement officials place a GPS device on a vehicle, it is a search. And if it is considered a search, it must be supported or will be considered illegal.
- Police are not allowed to set up generalized roadblocks for purposes of trying to control crime. This sounds strange if you have ever seen a DWI checkpoint before, but the courts have held a specific DWI type checkpoint is allowed, but absent special circumstances, general crime control roadblocks are not.6
- The police may not use the inventory search (of an impounded vehicle) as a pretext to conduct searches that are investigatory in nature (meaning, they are not for the purposes stated under #4).
- The police may not use a false claim of lawful authority to obtain consent – if they do, it is not voluntary.
- The police may not rely on plain view to seize an item if it is something used for legitimate purposes, even if it is often something used for illegitimate purposes (unless other facts and circumstances suggest criminal activity).
Examples Using Frequently Committed Offenses
Driving while intoxicated (DWI) is a charge that often must go to trial. One of the most common ways a Virginia criminal attorney or local Fairfax DWI lawyer goes about winning a case is an attack on probable cause. The officer may arrest the driver if he or she has probable cause to believe he or she was driving while intoxicated. The field sobriety tests, evidence of odor or slurred speech, as well as preliminary breath test results can form the basis for probable cause. The traffic stop also may be challenged on similar principles of law. Many DWI trials come down to the video evidence of the accused, namely, how well they performed the field tests and how the driving behavior appeared to the arresting officer prior to making the traffic stop.
Virginia Marijuana Possession
Many marijuana possession cases in Virginia involve a motor vehicle stop. Just like the DWI example above, there must be a reason to pull (stop) the vehicle. The officer must observe a violation of law. If the traffic stop is based on a mere hunch, then the case should be dismissed. Second, the smell of marijuana is often the basis for searching (and forming probable cause), thus resulting in a possession of marijuana charge. Never put yourself in a situation where you are in a vehicle with marijuana. It is a poor decision.
Drunk in Public / Public Intoxication in Virginia
Public intoxication (whether it is an alleged violation of a city ordinance, or Virginia Code) is just a Class 4 misdemeanor, but it looks poorly on one’s record (it is a criminal charge, despite the relatively small penal consequences). To eventually expunge the charge, the case must be won (or dropped). How can a drunk in public or public intoxication charge be won? Probable cause: did the officer have probable cause to believe the individual was intoxicated? For example, slurred speech and bloodshot eyes may be factors, but are not enough. There must be some behavior or other actions indicative of intoxication.
To learn more about the particular scenarios on your day in court, talk to our skilled and experienced local Fairfax criminal lawyer and Northern Virginia defense attorney:
For a consultation or to speak with a local Fairfax criminal lawyer and Northern Virginia defense attorney, contact us or call us today.
References Cited by the Author and our Local Northern Virginia Criminal Attorney
[1 and 2 omitted]
 See Florida v. Meyers, 466 U.S. 380 (1984); Patty v. Commonwealth, 218 Va. 150 (1977)
 Maryland v. Wilson, 519 U.S. 408 (1997)
 Davis v. United States, 131 S. Ct. 2419 (2011); Arizona v. Gant, 556 U.S. 332 (2009)
 Illinois v. Lidster, 540 U.S. 419 (2004)
 South Dakota v. Opperman, 428 U.S. 364 (1976)
 Reese v. Commonwealth, 220 Va. 1035 (1980)
 Jean-Laurent v. Commonwealth, 34 Va. App. 74 (2000); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Florida v. Bostick, 501 U.S. 429 (1991).
 See Generally Brigham City v. Stuart, 547 U.S. 398 (2006)
 Grandison v. Commonwealth, 274 Va. 316 (2007); Horton v. California, 496 U.S. 128 (1990)
 Bunch v. Commonwealth, 51 Va. App. 491 (2008).
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