And there are even more situations where the government can search without a warrant:
A police officer may legally enter a building without a warrant in an emergency situation in order to prevent serious injury or death or to prevent the destruction of property or evidence.
When I was prosecutor, the police called me one night to say that a man had confessed to killing his girlfriend. The police immediately went to the girlfriend’s house, entered without a warrant and discovered her body. They did a search of the whole house to be sure no one else was present. Then they called me.
What they had done was correct, but any evidence discovered in a more thorough search could have been kept out of the murder trial, if it later turned out that the killer also lived there (he did). The house was sealed off and we obtained a search warrant so they could process the whole crime scene.
If a police officer is in a place he is allowed to be, he can search for and seize evidence of a crime, if that evidence is plainly observable to his senses.
- This means he can enter a car and grab a sawed-off shotgun sticking out from under the seat if he makes a lawful traffic stop and notices it through the car window.
- If–during a “stop & frisk” pat down–the officer feels an object which he is certain is drug paraphernalia, he may reach into the pocket (a search) and take out the object (a seizure).
- The same could apply to other senses (e.g.smell of marijuana).
An exception to this exception would be if the officer walked to the front door of a house and noticed a marijuana plant happily growing in the light from the front window. If it appears no one is home and no one is likely to remove or destroy the “plain view” evidence, the officer will need to get a search warrant to get inside.
Another class of exceptions are where the purpose is not the discovery of evidence and not usually done by police. These administrative searches are conducted for health and safety reasons, and include such inspections as fire inspections, building inspections, inspections of regulated businesses, border searches and prison searches. A DWI checkpoint roadblock is another permissible seacrh/seizure. Local schools may also come under this exception.
The inventory search is another type of search, not based on probable cause, but with the purpose of safeguarding others’ property, and protecting the police from accusations of theft. The police may make a complete inventory of a person and their immediate belongings, including vehicles which the police have properly taken into custody.
This exception is a big one–and worthy of a separate post. We’ll save it till next time.