PROBABLE CAUSE EXCEPTIONS
As with any rule, there are exceptions. Unfortunately, in American law there are not only exceptions,
but exceptions to the exceptions, and even exceptions to those exceptions. We try to make it the least
confusing as possible. Some of the main exceptions to probable cause, but a non-exhaustive list are: (1)
Search Incident to Arrest; (2) Exigency Circumstances; (3) Automobile Exceptions; (4) Plain View
Exceptions; (5) Inventory of Vehicles Exceptions; (6) Closed Container Exceptions; (7) Community
Caretaker Exceptions; (8) Apparent Authority to consent Exceptions; (9) Closed Military Bases
Exceptions; (10) Actual Authority to Give Consent Exception; (11) Consent Generally Exception; (12)
Parole/Probation Searches Exceptions; (13) Border Searches Exceptions; (14) Extended Border Searches
Exceptions; and (15) Protective Sweeps Exceptions.
SEARCH TO INCIDENT EXCEPTION
As discussed above, the United States Supreme Court has held "Among the exceptions to the warrant
requirement is a search incident to a lawful arrest." [Arizona v Gant, 556 U.S. 332, 338 (2009)]. This type
of search legally extends to the arrestee's person and the area within his immediate control, which
includes the area into which an arrestee might reach in order to grab a weapon or evidentiary items.
[Chimel v California, 395 U.S. 752, 763 (1969)]. and a "search can be incident to an arrest only if it is
substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest."
[Stoner v California, 376 U.S. 483, 486 (1964); United States v Chadwick, 433 U.S. 1, 15, 97 (1977),
abrogated on other grounds by California v Acevado, 500 U.S. 565 (1992)([W]arrantless searches of
luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest
either if the search is remote in terms of time or distance from the arrest, or no exigency exists.)].
Under this Doctrine, law enforcement may search personal property that is immediately associated
with the accused. [United States v Robinson, 414 U.S. 218, 236 (1973)("Having in the course of a lawful
search come upon the crumpled package of cigarettes, he was entitled to inspect it. . . ") United States v
Chadwick, 433 U.S. 1, 15, abrogated on other grounds by California v Acevado, 500 U.S. 565
(1992)(holding that a 200 pound, locked footlocker could not be searched incident to arrest)]. The
United States Supreme Court has limited this exception to not include an accused's cell phone. [Riley v
California, 134 S. Ct. 2473, 2484 (2014)(holding that the search - incident doctrine does not permit the
warrantless search of cell phones because "[a] search of the information on a cell phone bears little
resemblance to the type of brief physical search considered in Robinson.")].
It should be noted that as explained earlier, there are exception even to the exceptions. Therefore,
we highly suggest you read our section under whichever category may apply to you. For example, if you
are doing research on someone who was arrested by their automobile then read that section, or if you
are researching information of someone who was arrested by their home or a third-party's home then
read those sections. We continuously try our best to reduce the complexities of these topics into an easy
to follow steps, but such complexities still can cause one to navigate back and forth.
Probable Cause Exceptions 2
EXIGENCY EXCEPTIONS
In 2011, the United States Supreme Court held that there is also an exception to the warrant
requirement in cases of exigency. [Kentucky v King, 131 S. Ct. 1849, 1856 (2011)("One well-recognized
exception applies when the exigencies of the situation make the needs of law enforcement so
compelling that [a] warrant search is objectively reasonable under the Fourth Amendment."(quoting
Mincey v Arizona, 437 U.S. 385, 394 (1978))]. There are several examples of what courts have
considered exigency, such as (1) emergencies [Bringham City, Utah v Stuart, 547 U.S. 398, 403-04 (2006);
Michigan v Fisher, 558 U.S. 45, 48 (2009) (upholding warrantless entry into a home based on emergency
aid exception)]. Law enforcement only need an objectively reasonable basis to believe someone inside
the house needs assistance. [Michigan v Fisher, 558 U.S. 45, 47 (2009)(quoting Bringham City, Utah, 547
U.S. 398, 406 (2006)]; (2) if they are in hot pursuit [Kentucky v king, 131 S. Ct. 1849, 1856
(2011)("[p]olice officers may enter premises without a warrant when they are in hot pursuit of a fleeing
suspect.")(citing United States v Santana, 427 U.S. 38, 42-43 (1976))]. This exception is intended "to
prevent the imminent destruction of evidence." [Bringham City, Utah, 547 U.S. 398, 403 (2006)(citing
Ker v California, 374 U.S. 23, 40 (1963))] and for (3) officer safety. [Chimel v California, 395 U.S. 752, 763
(1969)]. The burden is on the government to prove the existence of an exigency. [United States v
Robinson, 414 U.S. 218, 243 (1973)].
However, this exception does not apply if there is time to get a warrant. [Missouri v McNeely, 133 S.
Ct. 1552, 1572 (2013).] The United States Supreme Court has held that "technological developments
enable police officers to secure warrants more quickly" . . . so unless "there is compelling need for
official action and no time to secure a warrant" this exception does not apply. [Missouri v McNeely, 133
S. Ct. 1552, 1562, 1559 (2013)].
AUTOMOBILE EXCEPTIONS
In 1924 the United States Supreme Court recognized that citizens have an expectation of privacy in
their vehicles. [Carroll v United States, 267 U.S. 132 (1924)]. However, warrantless searches are
permitted with probable cause believing the vehicle contains contraband. [United States v Ross, 456 U.S.
798, 823 (1982)(citing Carroll v United States, 267 U.S. 132 (1924))]. This exception extends to any
containers found inside the vehicle so long as the search is limited to the actual object of the search.
[United States v Ross, 456 U.S. 798, 821-824 (1982)]. In other words, "[p]robable cause to believe that a
container in the trunk of a taxi contains contraband or evidence does not justify a search of the entire
cab." [United States v Ross, 456 U.S. 798, 824 (1982)].
This exception was crafted due to the impractibility of getting a warrant before the vehicle drives
away. [United States v Ross, 456 U.S. 798, 803-04 (1982)]. The United States Supreme Court has held "If
a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth
Amendment. . . permits police to search the vehicle without more." [Pennsylvania v Labron, 518 U.S. 938, 940 (1996)(per curiam)]. Although this is not completely true, because even when a car is not
immediately mobile, law enforcement have another justification at their disposal: "the lesser
expectation of privacy from its use as a readily mobile vehicle." [California v Carney, 471 U.S. 386, 391
(1985)].
INVENTORY SEARCHES OF VEHICLES EXCEPTIONS
Once the accused has been arrested and law enforcement impounded the vehicle a search is
permitted for creating an inventory. [Florida v Wells, 495 U.S. 1, 4 (1990)]. The United States Supreme
Court justifies this exception because it protects the owner's property and avoids disputes but the
search must be conducted pursuant to established procedures and policies. [Illinois v Layfayette, 462
U.S. 640, 648 (1983)]. However, there are no limits set by the Supreme Court of the scope or breath of
these policies. Law enforcement can have a policy of opening all containers or no containers as long as
the policy is not a ruse to fish for discriminating evidence. [Florida v Wells, 495 U.S. 1, 4 (1990)], and if
they happen to find something illegal then its legal to use. One should remember that the bar for what
qualifies as a ruse is very high for an accused to meet and very low for the government to overcome.
This exception applies when law enforcement lawfully arrest the occupant of an automobile, [New
York v Belton, 453 U.S. 454, 460 (1981)("[W]hen a policeman has made a lawful custodial arrest of the
occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile.")]. Although in 2009 the United States Supreme Court clarified "that
Belton does not authorize a vehicle search incident to a recent occupants arrest after the arrestee has
been secured and cannot access the interior of the vehicle." [Arizona v Gant, 556 U.S. 332, 335 (2009)].
This exception does apply, however, if law enforcement reasonably believes that evidence of the
offense of arrest might be found in the vehicle. [Arizona v Gant, 556 U.S. 332, 335 (2009)], however, the
United States Supreme Court restricted this exception. "In many cases, as when a recent occupant is
arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant
evidence." [Arizona v Gant, 556 U.S. 332, 343, (2009)(citing Atwater v Lago Vista, 532 U.S. 318, 324
(2001) and Knowles v Iowa, 525 U.S. 113, 118 (1998)).
PLAIN VIEW EXCEPTIONS
The Plain view doctrine is used in a lot of situations. This exception to the warrant requirement
applies "if police are lawfully in a position from which they view an object, if (1) it's incriminating
character is immediately apparent, and (2) if the officers have a lawful right of access to the object, they
may seize it without a warrant." [Minnesota v Dickerson, 508 U.S. 366, 375 (1993)(citing Horton v
California, 496 U.S. 128, 136-37 (1990))]. However, the United States Supreme Court has held, "the
distinction between looking at a suspicious object in plain view and moving it even a few inches is much
more than trivial for purposes of the Fourth Amendment." [Arizona v Hicks, 480 U.S. 321, 325 (1987)].
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