Illegal Searches; Warrantless Searches

Our right to be free from unreasonable search and seizure is found in the 4th amendment. In our society, the police and state agencies have always been able to circumvent  our rights because we don’t know how to protect ourselves. This blog explains a few Warrant Exceptions the police and other state agencies can exercise. This article is not even 1/4 of the information concerning our 4th amendment rights,warrants and warrant exceptions. However, it is aimed to engage and educate the driver and the driver’s passengers. 

In the past, evidence obtained during and illegal search or seizure could not be used against you. This Doctrine is called the “Fruit of the Poisonous Tree.” However new precedent (case outline below), has virtually done away with that long held doctrine in certain circumstances.  

Please protect yourselves with knowledge!

Warrant Exceptions 

Search Incident to Arrest:  

  1. person must be arrested
  2. arrest must be lawful 
  3. person must be reasonably contemporaneous in time and place with arrest 
  4. The search must not  exceed body and “grab area” or wingspan (area must be within suspect’s immediate control)  


Chimel  v. California (p. 335):
An arresting officer (probable cause arrest) may search only the area “within the immediate control” of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence. Any other search of the surrounding area requires a search warrant. Closed containers within the wingspan are also suspect to search. 

Automobile Search Incident to Arrest:

If you are stopped for a traffic infraction you must remember that the Entire passenger compartment and contents of any containers, Trunk not included,can be searched. However, there
must  be probable cause “PC” for the original arrest to do search INCIDENT to arrest.


New York v. Belton:  When a police officer lawfully makes a custodial arrest of an automobile occupant, the officer may search the entire passenger compartment of the vehicle incident to the arrest, including containers and occupants. (but no trunk)  

Thornton v. U.S.: Officers may search vehicles upon arrest if they have reason to believe that evidence “relevant to the crime of arrest” might be found in the vehicle, inside or next to car.

Wyoming v. Houghton: Police may search containers within the scope of the probable cause they have developed, regardless of who owns those containers (even passengers).


The police often surpass our 4th amendment right to be free from unreasonable searches (without warrant) because we  give them consent. Consent is a dangerous animal that only seems like you can pet it. Once you let consent out of its cage, it can turn very vicious. However, the state much show that consent was given voluntarily and without coercion. In order to fight an invalid consent use the totality of the circumstances to show coercion; things like education, intelligence, lack of advice, deprivation of food or water, sleep etc.

Police do not need a warrant or probable cause to search if they have your consent to search. The consent must be voluntary. The Person consenting must have authority or reasonably appear to have authority to consent. The consent cannot be a product of duress or coercion.


OH v. Robinette:consent does not require a knowing waiver, police need not tell consenter he has a right to refuse.

 Georgia v. Scott Fitz Randolph:  If one occupant gives consent and the other denies it, the police may not enter.  

 United States v. Drayton:Police do not have to inform citizens of their right to refuse a consent based warrantless search.

New Precedent:

Utah v. Strieff: The Supreme Court made a terrible decision to allow evidence obtained by police who’ve made an unlawful stop be considered in an arrest resulting from that stop. The case, centered on a white man in Utah, Edward Strieff, who was stopped by Salt Lake City Detective Douglas Fackrell.

Fackrell had not observed Strieff breaking any laws, but had suspicions that he was trafficking drugs. When the officer took the man’s ID and phoned in his info to dispatch, it turned out that Strieff had a warrant out for his arrest and had a small amount of narcotics on his person. Strieff’s attorneys wanted the arrest and resulting case to be dismissed since the evidence was obtained from an unlawful stop.

In a 5-3 decision, the court ruled that although the stop was unlawful, the evidence obtained from an unlawful stop   can be permitted in some circumstances.
What You Need to Know:

  1. You have the right to be free from illegal search and seizures under the 4th amendment. 
  2. Police and state agencies can circumvent your right in certain situations.
  3. Even if it is an illegal stop, a lawful arrest (warrant exception) can allow for evidence of a crime to become evidence in a trial. 

Call NubyLaw today to help you protect your rights! 


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