This flow chart walks you through the analysis when you are faced with a hypothetical involving a search for, or seizure of, evidence. A hypothetical involving the seizure of evidence usually poses the question of whether the evidence will be admissible at trial. Under the exclusionary rule, if the search or seizure do not comply with the Fourth Amendment requirement that searches and seizures be reasonable, the evidence will be inadmissible.
The first step in the analysis is to determine whether a search took place. Police investigation only constitutes a search, for Fourth Amendment purposes, if it invades a reasonable expectation of privacy. If there is NO reasonable expectation of privacy, there is NO search, and therefore the evidence is admissible.
If there is a search, the next question is whether police had a warrant for the search. If police had a warrant, the search is valid if: (1) there was probable cause for the warrant; (2) it is sufficiently particular as to the place(s) to be searched and the item(s) to be seized; and (3) it is issued by a neutral and detached magistrate. If there is a warrant that meets these criteria, and the warrant’s execution was reasonable (within the scope of the warrant, etc.) the evidence will be admissible.
If there is a search, and there was no warrant, the evidence is only admissible if it falls within a recognized exception to the warrant requirement:
- Search Incident to a Lawful Arrest (SILA):
After making a lawful arrest, police may search the area of the arrestee’s immediate control without a warrant.
- Automobile Exception:
Police may search an automobile without a warrant if they have probable cause to believe there is contraband in the automobile. Very often, questions that test on the automobile exception focus on whether the target of the search qualifies as an automobile.
- Plain View:
If an item is in plain view, and the police have probable cause to believe is contraband, while police are legitimately on the premises where the contraband is found, they may seize the item.
- Consent:
Voluntary consent is an exception to the warrant requirement.
- Stop & Frisk:
Otherwise known as a “Terry stop.” Police may stop an individual for questioning if police have reasonable suspicion that criminal activity is afoot. A frisk is permitted if police reasonably believe the suspect is armed and dangerous.
- Exigent Circumstances:
Police may conduct a warrantless search and seizure if they are in hot pursuit of a fleeing criminal, there exists an emergency that poses a danger to the health and safety of third parties, or they reasonably believe evidence will be destroyed before they can obtain a warrant.