One of the exceptions to the warrant requirement is something called “Exigent Circumstances”. It is also one of the most hotly litigated issues in criminal court – usually because they involve police officers who are making tough judgment calls in the field or who are taking advantage of the exception when they know they did an unlawful search.
Exigent circumstances exist when a life is in danger or there is a danger of evidence being destroyed. For example, if police are called to a house regarding a domestic disturbance and arrive to hear a person inside yelling for help, they are allowed to enter the residence. Police are not required to endanger someone’s life by taking the time to get a warrant.
When a police officer conducts a lawful stop or detention, such as a traffic stop for speeding, the police officer is allowed to conduct a pat down for officer safety. During this type of search, the officer is looking for any kind of weapon that could be sed against him during your encounter, such as a gun, knife, or hypodermic needle.
If the police office discovers contraband during this search, he does not violate any search and seizure laws, even though he was only looking for weapons. For example, during this search, if the police officer detects something in your pocket that feels like a crack pipe or a marijuana pipe he can then retrieve the item without a warrant or your permission.
That said, the police officer is not allowed to go beyond the scope of a search for officer safety. For instance, in one Supreme Court case, the officer patted down a suspect and recovered a pack of cigarettes. The officer then opened the pack of cigarettes and found drugs. The court excluded the drugs finding that the additional search into the pack of cigarettes went beyond a search for officer safety.
Many basic drug cases result from car searches. A good defense attorney should be well versed in automobile searches, since there are so many nuances to that area of the law. Automobile searches are particular since there is a lower expectation of privacy when someone is in their car… a car is not like your house.
In order for police to search a car, there only needs to exist probable cause. For example, if an officer pulls someone over for speeding, and as the officer approaches, he smells the odor of burnt marijuana, the officer can then search the car.
Officers are always allowed to conduct a search incident to a lawful arrest. This means that if the officers lawfully arrest someone, they can search that person, and the area around them, in order to ensure officer safety. This type of search applies to cars as well. Up until 2009, officers were allowed to search a car incident to a lawful arrest, regardless of where the arrestee was. However, in the case of Arizona v. Gant, officers arrested Gant for driving with a suspended license, placed him in handcuffs in the back of the patrol car, and then searched Gant’s car and found drugs. The Supreme Court ruled that police could only search a car if there was a reasonable belief the arrestee could access the car. Since Gant was already in the police car, he could not have reasonably accessed his car.
Details for Your Lawyer
If you are arrested, and evidence is taken, here are some questions that your defense attorney should ask (keep in mind, these questions only scratch the surface of a proper case analysis):
- Why were you stopped?
- Did the police have a warrant?
- If there was no warrant, did the police ask for permission to search?
- If the police found something, where was it found?
- If the person was patted down, and evidence was found, how was the evidence packaged/contained?
- If the suspect was pulled over in his car, why was he pulled over?