Police do not need a warrant to search arrested individuals for weapons or to search any area for which you have given your consent.
If you’ve been keeping up with this blog series on your 4th Amendment rights, you already know that while the 4th Amendment does protect against unreasonable searches and seizures, some searches are deemed reasonable even without a warrant. We’ve already discussed the plain view exception and the search incident to lawful arrest exception.
There are many more exceptions to cover, and in this blog we will discuss two more common search warrant exceptions that you or a loved one may encounter in the course of an arrest or criminal investigation.
Protective Pat-Down Search Exception
Sometimes also called the protective frisk search exception, this warrant exception is designed to ensure the safety of an arresting officer. If an officer approaches an individual to make a lawful arrest and they believe that individual may have a weapon on their person, they have the right to pat down that person’s outer clothing. If the police officer feels an object they believe may be a weapon or otherwise dangerous, they may remove it without a warrant.
This search exception brings up a multitude of gray areas. Sometimes, it is quite obvious that a suspect has a weapon and that the police officer is justified in performing a search and confiscating the item. Other times, it is not so obvious. For example, if an officer can see the outline of a gun beneath a shirt, this is a clear signal for them to perform a search without a warrant. But, if the officer is doing a pat-down and they feel a hard object in a pocket but can’t really tell what it might be or articulate why it might a threat to their safety, they may not be justified in removing the object. If they do remove the object and it does turn out to be evidence of a crime, this evidence may prove inadmissible in court because it was not obtained with a proper warrant.
Consent Exception
As the name implies, if a police officer asks your permission to search your person, your vehicle, or your property without a warrant and you grant them this permission, anything they find could be used as evidence against you in a criminal case.
It is important to remember that just because you consent to one type of search does not give the police the right to search anything and everything. For example if you consent to a search of your person to put police at ease that you are not carrying a weapon, this does not mean they can then start roaming through your home and searching other areas.
Both of these exceptions are highly complex and fact-intensive, and it is very important to retain a skilled criminal defense attorney to assist you in navigating these issues if evidence allegedly obtained under these search exceptions is going to be used against you in court.
