Text: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
(Most of the below info from http://en.wikibooks.org/wiki/US_Criminal_Law/Searches_without_a_warrant)
Comments
The 4th amendment doesn't not say that search requires a warrant. Instead it says they must "reasonable".
Case law has defined multiple instances where searches don't require a warrant and that's not anything new. Included in the "no-requirement-for-warrant: category are the following: I've included relevant cases in brackets when I can scarf one up.
1. Consent
No warrant or probable cause is required to perform a search if a person with the proper authority consents to a search. The person has the right to refuse to give consent and except in limited cases may revoke consent at any point during the search.
- Schneckloth v. Bustamonte
- Lee v. United States
- Lopez v. United Stats
- Hoffa v. United States
- United States v. Herzbrun "no constitutional right to revoke his consent to a search of his bag once it entered the X-ray machine and he walked through the magnetometer"
2. Motor Vehicle Exception
- Carroll v. United States "Allows an officer to search a vehicle without a warrant as long as he has probable cause to believe that evidence or contraband is located in the vehicle."
- Wyoming v. Houghton Ownership of objects searched in the vehicle is irrelevant to search legitimacy.
- United States v. Ludwig Search warrant is not required even with little or no risk of the vehicle being driven off.
- California v. Carney Motor vehicle exception applies to a motor home. The court did however, make a distinction between readily mobile motor homes and parked mobile homes.
-United States v. Forrest applied the exception to boats and in United States v. Hill to house boats.
-United States v. Nigro and United States v. Montgomery the motor vehicle exception was found to also include airplanes.
3. Emergency Exception
Allows officers to enter and search a residence in certain circumstances when these circumstances prevent them from obtaining a search warrant or consent. The courts commonly apply a test known as the Mitchell Test in determining if an emergency search was valid. This test requires the officer to have had “reasonable grounds to believe” that there was an emergency and an immediate need for police assistance, the search was not motivated primarily by an intent to arrest or seize evidence and there must have been a “reasonable basis approximating probable cause” to believe the area searched was associated with the emergency
- Minnesota v. Olsen Preventing escape was found to be a valid emergency circumstance.
- United States v. Santana Preventing the destruction of evidence and the hot pursuit of a criminal suspect are valid reasons to conduct an emergency search.
- Warden v. Hayden Established warrantless searches to prevent harm to the officers or others.
- Thompson v. Louisiana and Mincey v. Arizona Officer may enter and search a residence in order to render immediate aid to a person in need of assistance.
4. Plain View Doctrine
Allows an officer to seize without a warrant, evidence and contraband found in plain view during a lawful observation.
5. Open Fields
-Hester v. United States Fourth Amendment does not protect open fields and therefore there are no requirements for warrants or probable cause. Police may perform warrantless searches of open fields even if this search would amount to trespassing.
-Oliver v. United States Abandoned effects, refuse, and public places are not be protected by the Fourth Amendment.
6. Nation's borders
Searches made along the nation's borders were authorized by the First Congress , in The Act of July 31, 1789. These searches can be made without a warrant, probable cause, or even some degree of suspicion.
- United States v. Ramsey Searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration” "People at immigration points may be searched and be held for up to 16 hours on reasonable suspicion alone. Searches performed near but not at the nation's borders however, are not included.'
(my added - not from web site) ***Big issue kind at the heart of much current debate - What's the application to data crossing the national border?***
7. Crime Scenes
The scene can and must be preserved while the warrant is being sought and everything seen while in the residence is admissible as probable cause.
8. Prison
-Hudson v. Palmer Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.
9. Probation
- Griffin v. Wisconsin Neither warrant nor probable cause is required to search the home of a person on probation provided “reasonable grounds” for a search exists.
10. Searches Incident to a Lawful Arrest
- Chimel v. California Officer may perform a warrantless search during or immediately after a lawful arrest. This search is limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon or destroy or hide evidence
11. Searches of Public School Students
- New Jersey v. T.L.O While the Fourth Amendment to apply to searches conducted by public school officials because “school officials act as representatives of the State, not merely as surrogates for the parents.” But also, “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” "Neither the warrant requirement nor the probable cause standard applied, rather a reasonableness standard is used. In order for the search to be valid “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” Additionally searches must, “not (be) excessively intrusive in light of the age and sex of the student and the nature of the infraction” or discriminatory on the basis of age, sex, or race."
12. Warrantless Interceptions of Communications
- Hoffa v. United States "Use of informants to capture the contents of conversations, does not violate the other party's Fourth Amendment rights and Fourth Amendment protections do not apply to a “wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it."
- Lopez v. United States Tapes (of attempted bribe) admissible because the agent was one of the parties in the recorded conversations.
- United States v. White “(I)f the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent."
- United States v. Longoria Law enforcement may use individuals to record conversations they are a party to, or overhear, even if they do not understand the conversation.
13. Intercept for Foreign Intelligence Purposes: (Note that this is derived via a different article. The URL is: http://www.ask.com/wiki/Warrantless_searches_in_the_United_States?o=2801&qsrc=999&ad=doubleDown&an=apn&ap=ask.com)
In re: Sealed Case No. 02-001, the United States Foreign Intelligence Surveillance Court of Review:
"...the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it."
"...FISA could not encroach on the President's constitutional power...."
"...Even without taking into account the President's inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable."
"The "balancing test drawn from Keith" is a reference to United States v. U.S. District Court, in which the Supreme Court of the United States established a legal test to determine whether the primary use of the warrantless search was to collect foreign intelligence, as per presidential authority, or whether that primary use is to gather evidence for use in a criminal trial."
Now for the next part of the 4th Amendment. Agree that if a search does require a warrant, that warrant requires a showing of probably cause.
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