Police do not need a warrant to seize evidence in plain sight or evidence found when searching your person following an arrest.
Though the 4th Amendment does provide protection against unreasonable searches and seizures, this does not necessarily mean law enforcement officers must secure a warrant in every situation. A large body of case law has developed to help describe the various situations where it would not be unreasonable for an officer to conduct a search in the field without a warrant. These situations are known as “warrant exceptions.” In this blog, we will take a look at two common exceptions.
Search Incident to Lawful Arrest Exception
The first exception has a somewhat complicated name but is actually relatively straightforward. If you are under lawful arrest for a crime, you are subject to a full custodial search. This search includes your person and any immediate areas around you.
For example, if a police officer enters a home lawfully, sees an individual with drug paraphernalia lying on the table next to them, and it appears the individual has been using a drug, that person is subject to arrest. After making the arrest, police can go through the person’s pockets and search the immediate area around them to look for more evidence of drug crimes. For example they could search the chair the person was sitting in and the table where the paraphernalia was found. They might even look inside the table’s drawers if it has any. However, the police would not be able to search other parts of the room, other rooms, or other structures on the property without a warrant under this exception.
Plain View Exception
If a police officer is going about their normal lawful business and they see evidence of a crime out in plain view, they can seize this evidence under the plain view exception.
For example, let’s say a police officer pulls over an individual for an ordinary, lawful traffic stop. Perhaps they had a taillight out, were speeding, or missed a stop sign. If the officer can see any item that indicates to that officer that the individual in the car has been engaged in a crime (such as a bag of drugs or a handgun), the officer can seize that item as evidence without a warrant.
Even though these exceptions may seem simple, they have been disputed in the courts. For example, cases have been heard on whether a gun that creates an outline in a pocket or beneath a shirt is in plain view or not. The rulings are all over the place, making it extremely important to hire an experienced criminal defense attorney for any case touching on possible a search warrant exception issue.
