CHAPTER SIX
SEARCHES FOR EVIDENCE
Learning Objectives
After studying this chapter, students should be able to:
2. Understand that searches hardly ever require warrants, except when officers want to
search homes. Know how officers can execute warrants to search homes “reasonably.”
3. Know that search warrants require both particularity and probable cause. Understand that,
4. Understand that the knock-and-talk technique is a powerful investigative tool that
5. Know and appreciate that the millions of searches incident to arrest are reasonable
6. Know that the millions of consent searches allow officers to search without warrants or
probable cause. Appreciate that without consent, officers couldn’t conduct the search.
7. Know how to determine the scope of consent; when consent can be withdrawn; and when
8. Understand that the searches of vehicles without warrants are constitutional because of
9. Understand that emergency searches are based on the idea that it’s sometimes impractical
to require officers to obtain warrants before they search. Know the four major types of
emergency searches.
Lesson Plan
I. Searches for Evidence
Learning Objective 1: Understand and appreciate the Criminal Procedure Ideal of balancing
crime control and individual privacy as it applies to searches for evidence.
What If Scenario
What if you the Supreme Court decided that all searches without warrants were
unreasonable? How would this affect crime control?
Class Discussion/Activity
Find a recent crime reported in the media. Identify what would be necessary if an
officer wanted a search warrant to further investigate that crime. Be specific.
Students in a large class can do this assignment in class as a group. Small classes can
do this assignment individually or as a class. If done separately or in small groups
have students come back together as a class to discuss what they found after they
have completed the activity.
A. Crime control couldn’t survive without searches, but the right against unreasonable
searches and seizures is one of the most difficult to protect.
B. The Fourth Amendment balances the need for searches against the invasion of
individuals’ privacy resulting from searches.
C. The three-step analysis used to examine government action is the same applied to stops
and frisks and arrests.
D. Searches for evidence of crime include:
2. Searches without warrants
II. Search Warrants
Learning Objective 2: Understand that searches hardly ever require warrants, except when
officers want to search homes. Know how officers can execute warrants to search homes
“reasonably.”
Learning Objective 3: Know that search warrants require both particularity and probable cause.
Understand that, with some exceptions, officers have to knock, announce their presence, and
give occupants an opportunity to open the door, before forcible entry of homes. Appreciate the
radical changes in the use of search warrants in the Digital Age.
What If Scenario
What if the Supreme Court removed the particularity requirement from search
warrants? How would this make it easier for police officers to do their job? What
abuse might occur as a result?
See Assignment 1
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Media Tool
“Dallas S.W.A.T. Narcotics Search Warrant”
http://www.youtube.com/watch?v=e2r9u2Rzct0
o YouTube video of the execution of a search warrant.
o Discussion: Why do you think officers might prefer a search warrant for
narcotics? Hint: Think about the particularity requirement. What do you
think the Supreme Court would say about the execution of the search warrant
in this video? What do you think about the execution of this search warrant?
Class Discussion/Activity
What is the purpose of requiring law enforcement officers to gain search warrants?
How do the purposes of such warrants differ today than from when the Constitution
was first drafted?
Class Discussion/Activity
What is the importance of the particularity requirement? Do you think that some
officers might abuse the search warrant if the particularity requirement were not
included? How is this similar to the particularity requirement for an arrest warrant?
How is it different?
A. The Fourth Amendment commands that officers get search warrants, but in reality there
are far more searches without warrants than with warrants.
B. Three elements are required to meet the Fourth Amendment’s warrant requirement:
2. An affidavit supporting probable cause
3. The “knock and announce” rule
a. The “knock and announce” rule requires two elements:
(1) Officers have to knock and announce they are officers with a search warrant
(2) Officers have to wait a “reasonable amount of time” before breaking and
entering.
(a) Reasonable is based on the totality of the circumstances
b. Regarding exceptions to the knock and announce rule, the Supreme Court has left
it to the lower courts to determine when it is reasonable to enter unannounced.
c. The Supreme Court has said that a blanket rule is unconstitutional.
See Assignment 4
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III. Searches without Warrants
Learning Objective 1: Understand and appreciate the Criminal Procedure Ideal of balancing
crime control and individual privacy as it applies to searches for evidence.
Learning Objective 2: Understand that searches hardly ever require warrants, except when
officers want to search homes. Know how officers can execute warrants to search homes
“reasonably.”
Learning Objective 5: Know and appreciate that the millions of searches incident to arrest are
reasonable without warrants, because they protect officers, prevent escape, and preserve
evidence. Understand the scope of incident searches, and know the types of crime and
circumstances that can be subject to these searches.
What If Scenario
What if your state decided that officers could not perform searches incident to lawful
arrest? What impact do you believe this would have on crime? Policing?
Media Tool
“Search Incident to Arrest”
http://www.officer.com/article/10331498/search-incident-to-arrest
o Police officer website discussing the impact of Arizona v. Gant.
o Discussion: How does the article written by a police officer view the Gant case
differently from other information you have read about Gant. Do you believe
that the article is accurate? Why or why not?
Class Discussion/Activity
Do you agree with the Supreme Court’s holdings regarding searches incident to arrest?
How does empirical research question the logic of these holdings?
A. The U.S. Supreme Court has repeatedly said the Fourth Amendment expresses a strong
preference for search warrants with a few well-defined exceptions.
B. The broad interpretation of the well-defined exceptions satisfies the strong preference of
law enforcement officers to search without warrants.
C. Exception searches far exceed warrant searches
D. Five major exceptions to warrant requirement
2. Consent searches
4. Container searches
5. Emergency searches
E. Searches Incident to Arrest
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(2) Prevent escape
2. Officers can only search the area under the immediate control of the arrested persons.
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F. The “grabbable area”
1. Includes the passenger area and any containers in the passenger area based on New
York v. Belton
3. Following challenges and criticism of Belton the Court upheld a constitutional
challenge to a search of a car after the defendant was arrested, handcuffed and locked
in the back seat of a police car (Arizona v. Gant)
G. The time frame of incident to arrest includes the time before, during, and after arrest.
H. Searches incident to misdemeanor arrests
1. U.S. v. Robinson bright-line rule.
(1) Possible danger to officers
(2) Logical impossibility of reviewing every police decision
c. There’s no automatic search incident to citation rule.
I. Searches incident to pretext arrests
2. In Whren v. U.S. the Supreme Court found such a search to be reasonable.
IV. Consent Searches
Learning Objective 6: Know that the millions of consent searches allow officers to search
without warrants or probable cause. Appreciate that without consent, officers couldn’t conduct
the search.
Learning Objective 7: Know how to determine the scope of consent; when consent can be
withdrawn; and when one person can consent for another. Appreciate the Criminal Procedure
ideal of evidence-based decision making and the empirical research of consent searches.
What If Scenario
What if the Supreme Court overturned the cases holding that officers could search a
passenger in a vehicle incident to lawful arrest? How would this impact the ability
of police officers to do their job? What impacts would be felt in your community?
Media Tool
“What Happens in Idaho if You Don’t Consent to a Search of Your Vehicle”
http://www.youtube.com/watch?v=ITJ502jbh0Y
o YouTube video of a dog sniff in Idaho.
o Discussion: Why was the dog sniff of the car not a search? Was this a pretext
search? Why did the officers stop the car? Do you think the stop was
reasonable?
Class Discussion/Activity
Can you think of any problems with consent searches? Are there any people who
might be particularly vulnerable to these kinds of searches? How might such
searches be abused?
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A. In consent searches, individuals give officers permission to search.
B. Most of the people who consent to a search are innocent, young, poor, and non-White.
C. Officers favor consent searches because:
1. They make the job easier
3. They have virtually no limits.
4. They allow discretion and power where targets are unlikely to say no to a search.
D. Two theories of consent
1. Waiver test of consent to search asks
2. Voluntariness of consent to search looks at the police officer’s state of mind.
3. A signed consent form can prove that a suspect voluntarily consented to a search.
E. Empirical research and consent searches
1. Although the Supreme Court expressed confidence in the lower courts to scrutinize
the voluntariness of consent to search empirical research shows that lower courts find
that consent was voluntary in all but the most extreme cases.
F. The scope of consent
2. The scope of consent searches is a major in crotch searches, a tactic used in drug
enforcement. (U.S. v. Rodney)
a. The Supreme Court has not yet addressed this issue.
G. Withdrawing consent
1. The Supreme Court has not yet addressed the issue if someone who has voluntarily
consented may later withdraw the consent.
2. Lower courts have ruled that people can withdraw consent but must do so
unambiguously.
What If Scenario
What if your state eliminated third-party consent searches? How would this make it
easier for suspects to avoid arrest?
H. Third-party consent searches
1. There’s both an objective and a subjective rule to decide whether one person can
2. The U.S. Supreme Court adopted the apparent authority objective test as the
minimum requirement.
See Assignment 2
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V. Vehicle Searches
Learning Objective 8: Understand that the searches of vehicles without warrants are
constitutional because of their mobility and the reduced expectation of privacy in vehicles. Know
that searches of containers and persons within the vehicles without warrants are “reasonable” as
long as they’re based on probable cause.
A. Vehicle Searches
1. Searches of vehicles based on probable cause don’t require warrants because:
3. Searches of containers in vehicles
4. Searches of vehicle passengers
a. The vehicle exception included the passengers purse.
VI. Emergency Searches
Learning Objective 9: Understand that emergency searches are based on the idea that it’s
sometimes impractical to require officers to obtain warrants before they search. Know the four
major types of emergency searches.
A. Emergency (Exigent) Searches
2. If police officers have probable cause to search, and they reasonably believe evidence
is about to be destroyed, they can search without a warrant.
4. If officers have probable cause to believe either that a suspect has committed a violent
crime or that they or others in the community are in immediate danger, they can
search without obtaining a warrant.
Lecture Notes
Crime control could not survive without searches, but the power to search comes at a price.
The Fourth Amendment does not prohibit all searches, only “unreasonable” searches. In our
examination of Fourth Amendment searches, we will follow the same three step process used in
examining arrest: (1) Was the government action a search?; (2) If it was a search, was it
reasonable?; (3) If it was unreasonable, should the evidence be excluded?
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executing warrants to search homes, officers have to “knock and announce” their presence before
entering. Exceptions to the “knock and announce” rule include circumstances in which officers
need to enter unannounced in order to prevent violence, the destruction of evidence, or the escape
of suspects. Officers must wait a reasonable amount of time after announcing their presence to
break and enter in the event the occupants refuse to allow them in.
Most searches do not require warrants in order to be reasonable. Some searches require
neither warrants nor probable cause. Searches incident to lawful arrests based on probable cause
are considered reasonable without warrants because they protect officers, prevent suspects from
escaping, and preserve evidence. They include searches of arrested persons and the immediate
area within their control (“grabbable area”). The “grabbable area” includes the passenger
compartment of vehicles suspects occupied when they were arrested. The motive of the arresting
officer is irrelevant so long as probable cause supports the arrest. Police may also search the
containers within the passenger compartment. Searches incident to arrest include the time before,
during, and after the arrest.
Consent searches require neither warrants nor probable cause, allowing officers to search
where they could not otherwise do so. The government has to prove consent was voluntary;
consenting persons can withdraw their consent at any time if they can demonstrate their clear
intent to stop the search. The scope of the consent depends on whether the officer reasonably
believed the person consented to the scope of the search.
Although the Supreme Court has not ruled on whether consent can be revoked once it is
given, lower courts and states court have done so. These courts have unanimously ruled that
consent can be withdrawn but that withdrawal must be unequivocal.
Third-party consents are lawful so long as an officer reasonably believes the third person has
the authority to consent. Courts look at the totality of circumstances in analyzing whether
consent was voluntary. There are two types of third party consents: actual authority and apparent
authority. Actual authority is when someone has the authority to allow a search. Apparent
authority is when someone the police believe has the authority gives consent but actually does
not have such authority. Both types have been held to be reasonable by the Supreme Court.
Searches of vehicles without warrants are reasonable under the Fourth Amendment because
vehicles are mobile and people have a reduced expectation of privacy in their vehicles. Searches
of containers in vehicles without warrants are “reasonable” as long as police officers have
probable cause to search the vehicle. Officers can also search “containers” attached to people,
such as wallets, pockets of clothing, or purses, if they have probable cause to search the vehicle
and the “containers” are capable of concealing the object of the search.
Key Terms
particularity requirement: Requirement that a warrant must describe the place to be
searched and the persons or things to be seized. (p. 199)
knock-and-announce rule: The practice of law enforcement officers knocking and
announcing their presence before a home to search it. (p. 199)
searches incident to arrest: A search made of a lawfully arrested suspect without probable
cause or warrant. (p. 202)
“grabbable” area: The arrested person and the area within his or her immediate physical
control. (p. 205)
citations: Substitutions for arrest. (p. 211)
pretext arrests: An arrest done as a pretext to provide the opportunity for some other action
police wish to take. (p. 212)
consent searches: Searches where individuals give police permission to look through their
home or possessions or to do a body search of some kind. (p. 214)
waiver test of consent to search: Asks (1) whether the person knew she had a right to refuse
consent, (2) intended to give up (waive) the right, and (3) gave it up voluntarily. (p. 216)
voluntariness test of consent searches: A test in which the totality of circumstances is used
to determine whether a consent to search was obtained without coercion, deception, or
promises. (p. 216)
unequivocal acts or statements withdrawal of consent rule: To withdraw a consent to
search, the withdrawal must be supported by unambiguous acts or unequivocal statements.
(p. 226)
third-party consent searches: One person can consent for another person to a search. (p. 227)
actual authority consent: Only someone who in fact has the legal authority to consent for
someone else can give law enforcement officers permission to search that other person’s
home or property. (p. 227)
apparent authority consent: Consent given by someone who law enforcement officers reasonably
believe, but who in fact does not, have authority to consent for another person. (p. 227)
assumption of risk source of third-party consent authority: Consent to search is based on
emergency searches/exigent circumstances searches: Exceptions to the warrant
requirement based on the idea that it’s sometimes impractical (even dangerous) to require
officers to obtain warrants before they search. (p. 237)
hot pursuit: An emergency created by the need to apprehend a fleeing suspect. (p.238)
Assignments
1. If you’re fortunate enough to have a law enforcement officer as a student or have access to an
officer, have them bring into class a copy of an actual search warrant and the affidavit that
supports it with redacted names and addresses. Students will be impressed with how much work
goes into preparing an affidavit. Have the officer describe going to a magistrate with an affidavit
and request for a search warrant. It will help students understand the level of detail required
2. Have students discuss the circumstances of who can consent to a search for someone else:
roommates who share a common living space v. roommates who have divided the living
area; a homeowner and a house guest; an employer and an employee’s locker or locked desk
drawer. There are any number of scenarios and variations of those scenarios that students can
3. The Supreme Court has left the determination of voluntariness to lower courts. Have students
locate a lower federal or state court case that involved a challenge to a consent search or
assign them one that you have found. Have students brief the case and write a paper
4. Have students write a paper discussing the importance of searches in crime control and
balancing the importance of that crime control with the invasion of privacy. Have them
identify social or political climates which may impact the way that courts decide these types