By Elia V. Pirozzi
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The exceptions to the warrant requirement of the Fourth Amendment to the U.S. Constitution have been framed by the U.S. Supreme Court under a standard of reasonableness that balances the need for the search or seizure against the invasion such a search or seizure would entail. Maryland v. King, 133 S.Ct. 1958 (2013).
The objective of this installment in a three-part series on search and seizure basics and its accompanying self-study tests is to review the rules and applicable case authority for various exceptions to the general warrant requirement of the Fourth Amendment. Readers will learn of all the major exceptions that typically arise in this type of litigation.
Where probable cause exists to believe that a vehicle contains contraband or evidence of a crime, an officer can conduct a warrantless search. Maryland v. Dyson, 527 U.S. 465, 466-67 (1999); U.S. v. Ross, 456 U.S. 798 (1982). The automobile exception to the warrant requirement has three components: (1) probable cause, (2) a vehicle and (3) a search of limited scope. The test is whether the totality of the circumstances, "viewed through the lens of common sense," would make a reasonably prudent person believe that a search of the automobile would reveal contraband or evidence of a crime. Florida v. Harris, 133 S.Ct. 1050 (2013).
The "automobile exception" applies to all types of mobile vehicles and vessels. See, e.g., California v. Carney, 471 U.S. 386 (1985) (motor home); People v. Allen, 78 Cal. App. 4th 445 (2000) (bicycle). The inherent mobility of motor vehicles provides a categorical exigency and, consequently, the government is not required to demonstrate the existence of a specific exigent circumstance. Dyson, 527 U.S. at 466-67. The analysis centers on the (1) physical limits of the search and (2) period of time in which the search must be accomplished. The permissible physical scope of the search is "no narrower - and no broader - than the scope of a search authorized by a warrant," and justifies the search of every part of the vehicle and its contents that may conceal the object of the search. California v. Acevedo, 500 U.S. 565 (1991). If the police have probable cause to search a vehicle, "[t]here is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure" provided its retention is not delayed indefinitely before the search is completed. U.S. v. Johns, 469 U.S. 478 (1985); U.S. v. Sharpe, 470 U.S. 675.
Investigative ("Terry") Stop
An investigative ("Terry") stop is constitutionally reasonable when (1) the police have reasonable suspicion to detain the individual and (2) the detention is temporary and limited in duration to the purpose of the stop. See In re James D., 43 Cal. 3d 903 (1987).
(1) Non-traffic stop. An officer may briefly detain a person for investigative purposes without probable cause if, based objectively on specific and articulable facts, she has a reasonable suspicion that criminal activity is in process (or is about to occur) and the detained person is involved in the activity. U.S. v. Sokolow, 490 U.S. 1 (1989); Terry v. Ohio, 392 U.S. 1 (1968). An "inchoate and unparticularized suspicion," or hunch, on the part of the police is inadequate. Sokolow, 490 U.S. at 7. Furthermore, the investigative detention must be "brief" and no longer than the time reasonably needed to effectuate the purpose of the stop. Sharpe, 470 U.S. at 685-86; Florida v. Royer, 460 U.S. 491 (1983). The evaluation will be dependent on whether the officer was diligent in confirming his suspicions. Id.
(2) Traffic stop. A temporary detention of a person during an automobile stop is a seizure for Fourth Amendment purposes. Whren v. U.S., 517 U.S. 806 (1996). Ordinary traffic stops are regarded as investigatory detentions requiring the officer to "articulate specific facts justifying the suspicion that a crime is being committed." People v. Hernandez, 45 Cal. 4th 295 (2008). The "reasonable suspicion" required to constitutionally justify a traffic stop is dependent upon both the content of the information in the possession of the police and its level of reliability. Alabama v. White, 496 U.S. 325 (1990). This standard takes into account the "totality of the circumstances." U.S. v. Cortez, 449 U.S. 411 (1981). An objectively reasonable suspicion that a law has been violated is a sufficient basis for a traffic stop, even if the officer's suspicions are subsequently proven incorrect. People v. Watkins, 170 Cal. App. 4th 1403 (2009). Moreover, a reliable anonymous tip will substantiate an investigative stop if it creates reasonable suspicion of criminal activity. Navarette v. California, 134 S.Ct. 1683 (2014). Furthermore, police questioning on unrelated matters is constitutionally permissible provided it does not unduly prolong the traffic stop. People v. Tully, 54 Cal. 4th 952 (2012).
Pat-Down Search ("Terry Frisk")
When a person is detained during a lawful Terry (or traffic) stop, an officer may conduct a limited pat-down or frisk of the suspect's outer clothing for weapons provided (1) the officer has reasonable suspicion that he is dealing with an armed and dangerous subject and (2) the scope of the frisk is limited to a search for weapons. Terry, 392 U.S. at 30-31. The propriety of the frisk requires the underlying detention to be legally valid and the officer's reasonable belief that he is dealing with an armed and dangerous individual. Arizona v. Johnson, 555 U.S. 323 (2009). The scope of the frisk is limited to necessary measures to discover and confiscate any weapon. Terry, 392 U.S. at 24. If the protective search goes beyond this purpose the fruits of the search must be suppressed. Minnesota v. Dickerson, 508 U.S. 366 (1993).
"'[E]xigent circumstances' means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence." People v. Ramey, 16 Cal. 3d 263 (1976). This factual determination requires consideration of the seriousness of the offenses at issue and the degree to which a delay in procuring a warrant "would pose a threat to police or public safety." Conway v. Pasadena Humane Soc'y, 45 Cal. App. 4th 163 (1996). The actions of the officers are evaluated objectively as to whether they were justified by exigent circumstances. People v. Hull, 34 Cal. App. 4th 1448 (1995).
(1) Hot pursuit. Police officers may enter a residence without a warrant when they are in hot pursuit of a fleeing suspect and have probable cause to arrest him for a serious or grave offense. See Welsh v. Wisconsin, 466 U.S. 740 (1984); Kentucky v. King, 131 S.Ct. 1849 (2011). The "fresh pursuit" of a fleeing suspect must be "substantially continuous" without a reasonable opportunity on the part of law enforcement to procure a warrant; but the suspect need not be in physical view at all times. People v. Escudero, 23 Cal. 3d 800 (1979). The "emergency or dangerous situation" must be serious enough that delayed entry into a home to procure a warrant would pose a significant danger of injury to the police or others. Minnesota v. Olson, 495 U.S. 91 (1990) (no danger where suspect was getaway driver and murder weapon recovered). The "gravity of the underlying offense" is a factor to be considered in determining if an identifiable exigency exists and the associated penalty is the clearest indicator of gravity. Welsh, 466 U.S. at 753-54, 754 n.14.
(2) Imminent destruction of evidence. The need to prevent the imminent destruction of evidence has "long been recognized" as an adequate justification for the warrantless search of a home. Kentucky v. King, 131 S.Ct. at 1856. Nevertheless, the police must have probable cause to believe that contraband or evidence of a crime is on the premises. People v. Bennett, 17 Cal. 4th 373 (1998). The severity of the underlying offense is an important consideration. Welsh, 466 U.S. at 753-54, 754 n.14. Moreover, the officers must reasonably believe that the evidence would be destroyed if they had to wait for a warrant. Illinois v. McArthur, 531 U.S. 326 (2001). There must also be "no time to secure a warrant." Michigan v. Tyler, 436 U.S. 499 (1978). Notably, this exception can apply to destruction of physical evidence or to evidence contained within the body. See, e.g., Missouri v. McNeely, 133 S.Ct. 1552 (2013) (blood draw). In either case, the circumstances must indicate that the evidence will become unavailable through the immediate danger of its destruction. See Schmerber v. California, 384 U.S. 757 (1966). However, "the natural dissipation of alcohol in the blood [does not] categorically" support a finding of exigency making any warrantless extraction of a blood sample constitutionally reasonable. McNeely, 133 S.Ct. at 1563. Whether the natural dissipation of alcohol in the blood in a specific instance creates an exigency "must be determined case by case on the totality of the circumstances," including the current procedures for obtaining a warrant and the ready availability of a magistrate to review the warrant application. Id. at 1563, 1568.
A police officer may seize evidence or contraband in plain view provided (1) he has the right to be in the place where the observation was made, (2) he had a lawful right of access to the object, and (3) the incriminating nature of the evidence is "immediately apparent." Horton v. California, 496 U.S. 128 (1990). Access to observe the objects or activity must be accomplished by lawful means giving the officer the right to be in the position to view the object. People v. Rogers, 21 Cal. 3d 542 (1978). The incriminating nature of an item will be considered immediately apparent when an officer has probable cause to believe that the item is stolen, contraband, or evidence of a crime. Dickerson, 508 U.S. at 375. Although inadvertent discovery of the evidence is a characteristic of most legitimate plain view seizures, "it is not a necessary condition." Horton, 496 U.S. at 130, 140.
When an authorized person freely consents to a search of property or his person, a warrantless search is constitutionally reasonable. Georgia v. Randolph, 547 U.S. 103 (2006). The manifestation of consent must be the product of free will. People v. Zamudio, 43 Cal. 4th 327 (2008). Consent searches require that (1) consent be given by the defendant, by one who has the authority to give consent, or by one who the police reasonably believe has the authority to consent; (2) the person's consent is voluntary; and (3) the search does not exceed the scope of the consent granted. Illinois v. Rodriguez, 497 U.S. 177 (1990) (factors 1 and 2); People v. Valencia, 201 Cal. App. 4th 922 (2011) (factors 2 and 3). The applicable test in determining consent is whether, from an objective standpoint, the officer's belief that the defendant consented to the search was reasonable under the circumstances. People v. Machupa, 7 Cal. 4th 614 (1994). Voluntariness of consent is a question of fact determined by considering "all the circumstances" of an individual consent. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Consent to a search may be withdrawn at any time before the search is completed thus immediately terminating the earlier consent. People v. Hamilton, 168 Cal. App. 3d 1058 (1985). Furthermore, the consent of a person who possesses "common authority" over a premises or effects is valid against an absent, nonconsenting person with whom that authority is shared. U.S. v. Matlock, 415 U.S. 164 (1974). In assessing the objective reasonableness of the officer's belief, the court will consider whether the facts available to the officer would warrant a person of reasonable caution and belief that the consenting party had authority over the premises. Rodriguez, 497 U.S. at 188. Nevertheless, consent to search by one occupant can be negated by an adult co-occupant who is present at the scene and expressly refuses to permit entry. Randolph, 547 U.S. at 106. By comparison, an occupant who is absent as a result of a lawful detention or arrest is viewed similarly to an occupant who is absent for any other reason. Fernandez v. California, 134 S.Ct. 1126 (2014). The scope of a consent search is measured objectively by what a reasonable person would have understood based on the exchange or conversation between the police officer and the consenting individual. Florida v. Jimeno, 500 U.S. 248 (1991).
Elia V. Pirozzi is a judge on the San Bernardino County Superior Court.