Exceptions to the 4th Amendment Warrant Requirement
The United States Constitution provides certain protections for every citizen of the U.S. In order to receive your best possible defense to criminal allegations, it is important to know these constitutional rights and the potential arguments a prosecutor may raise. One of the most important defenses a defendant can assert to their criminal charges is the unlawfulness of certain searches and seizures.
Under the Fourth Amendment, a person’s personal space and effects must be protected from unreasonable intrusion by law enforcement. When a defendant claims law enforcement either did not have a warrant to search and/or seize their property or person or that law enforcement officials proceeded with a search and seizure with a defective warrant, the prosecution most likely will attempt to raise “exceptions” to the warrant requirement.
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Exceptions To the Warrant Requirement
Searches and seizures in violation of the Fourth Amendment are presumptively unreasonable unless the prosecution can meet its burden of overcoming this presumption. When a defendant raises a Fourth Amendment search and seizure violation as a defense to the charges against them, the prosecution may attempt to raise one or more of the following arguments.
Search Incident To A Lawful Arrest
A lawful arrest is one based on probable cause (“reasonable suspicion”) and sufficient information derived from a trustworthy source. If the arrest conforms to probable cause requirements, the search is constitutionally valid.
The prosecution may argue that the alleged incriminating evidence was seized under “exigent” (i.e., urgent) circumstances, in the presence of imminent destruction, alteration, loss, or confiscation of such evidence.
In the absence of imminent destruction or loss of the evidence, the claim of “exigent circumstances” will fail. State v. Wangul, Ohio App. 8 Dist.,2002. Also, if the exigent circumstances are of the arresting officer’s own making, the court will not consider the argument (e.g., as when a defendant is spotted watering marijuana plants and there is no reason to believe that the evidence will be imminently destroyed). State v. Jenkins,104 Ohio App.3d 265, 661 N.E.2d 806 Ohio App. 1 Dist.,1995.
Plain View Exception
The prosecution may argue that a warrant was not required for evidence in “plain view.” This means that the evidence was conspicuous and readily visible to law enforcement.
The plain view exception to the warrant requirement does not apply when the search and seizure extend beyond the visible purview or area where the evidence is located, State v. Simmons, Ohio App. 4 Dist.,2006 (the plain view exception did not apply to the police deputy’s seizure of marijuana from a gun safe, where the defendant did not validly consent to the search). Similarly, evidence seized in plain view is not justified in the absence of a warrant, valid consent, or exigent circumstances to justify entry onto premises to seize the evidence, State v. Hawkins, Ohio App. 2 Dist.,2003.
Consent to Search
Authorization to search for evidence can provide the prosecution with an exception to the warrant requirement, Schneckloth v. Bustamonte (1973), 412 U.S. 218. However, the scope of a validly consensual search must be strictly limited to the terms of consent (i.e., to the area where the evidence may be contained or hidden). State v. Robinson, 103 Ohio App.3d 490, 659 N.E.2d 1292 Ohio App. 1 Dist.,1995 (police officers exceeded the scope of the defendant’s consent when they forced their way over a threshold and into an apartment after the defendant attempted to bar the officers’ entry), State v. Mack, 118 Ohio App.3d 516, 693 N.E.2d 821 Ohio App. 6 Dist.,1997 (consent to “search the ashtray” did not extend to a search of the defendant’s fanny pack, located on the car seat).
Where general consent is given for a search for evidence, and the individual authorized to give consent volunteers specific information as to where the evidence may be found, a search of that particular area is within the scope of the original consent. However, a consensual search cannot extend to an area in which the defendant has a reasonable expectation of privacy, State v. Bradford, Ohio App. 4 Dist.,2010 (the police officer observed marijuana in an outbuilding, where the public was not implicitly invited).
Consent to a search may not only be limited but may also be revoked at any time, even after the search has begun. The withdrawal of consent will be valid if the defendant unequivocally (unmistakably) withdraws consent by conducting him/herself or in a manner which demonstrates a reasonable withdrawal of consent, State v. Riggins, Ohio App. 1 Dist.,2004.
Waiver of the Statutory Precondition For Non-Consensual Entry
This is a waiver of the notice requirement under Ohio Rev. Code § 2935.12. That section provides that the officer or other authorized individual who, after being denied entry to premises, must give notice of his/her intention to execute a search warrant before breaking down a door or window to gain entry. In order to waive the notice requirement, the “affiant” (i.e., one who swears to the affidavit) must do the following:
- Demonstrate a serious risk of physical harm to him/herself, to the law enforcement officers, or to other individuals who will execute the warrant at the particular building or dwelling where the search will be conducted;
- A statement setting forth the facts upon which the affiant’s belief is based including, but not limited to, the names of all known persons who pose the risk of series physical harm; and
- Verification of the address of the premises to be searched in relation to the alleged criminal offenses or violations underlying the request for the search warrant’s issuance. Ohio Rev. Code § 2933.231(B)(1-3).
The issuing judge or magistrate will grant the request for a waiver only if they believe there is probable cause to believe the above-mentioned conditions. Ohio Rev. Code § 2933.231(C).
The “hot pursuit” doctrine holds that a person should not be able to avoid arrest simply by fleeing from a public to a private place. The pursuit must take place from a public to a private venue. Police officers may lawfully enter a private residence
without a warrant if they are in hot pursuit of a suspect.State v. Mathis, Ohio App. 9 Dist.,2004. However, this scenario does not exist when the alleged offender is already inside of a private dwelling, where there is an expectation of privacy, State v. Cummings, Ohio App. 9 Dist.,2002.
“Good Faith” Exception
The “good faith exception” to the exclusionary rule (i.e., an exception to the inadmissibility of evidence based on a defective search warrant) may be asserted when an officer’s mistaken reliance on a defective warrant issued by a neutral and detached judge or magistrate is found to be objectively reasonable. That is, evidence obtained on the basis of a defective warrant may only be admissible when at the moment the mistaken belief was formed, there must have been sufficient cause for a reasonable person to share that same belief. “Good faith” refers to the collective knowledge and experience of the law enforcement community as a whole, not that of the individual arresting officer.
How Is “Good Faith” Determined?
The concept of good faith is based on such factors as a cost-benefit analysis, the circumstances of the search, its place and duration, the extent of intrusion, the good faith suspicions of the law enforcement officer, and the tangible nature of the object seized. OHJUR CRIMLAW § 127.
When Does the “Good Faith Exception Fail?”
The good faith exception to rule requiring suppression of evidence that was seized does not apply in four instances:
- When the magistrate or judge was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;
- When the issuing magistrate wholly abandoned his judicial role;
- When an officer claims to rely upon a warrant based on an affidavit so lacking in probable cause as to conclude that his or her belief in the existence of probable cause was entirely unreasonable; or (4) Depending on the circumstances of the particular case, a warrant may be so facially deficient, (i.e., in failing to particularize the place to be searched or the things to be seized), that the executing officers cannot reasonably presume it to be valid. U.S.C.A. Const. Amend. 4., Ohio Ct. App. 6th Dist.,2007).
“Good Faith Exception” Burdens of Proof
The burden is on the state to prove that the good faith exception applies in a particular case. The defendant has the burden of showing by a preponderance (i.e., the greater weight) of the evidence that the affidavit issued in support of the warrant was so wholly lacking in probable cause (“reasonable suspicion”) so as to render belief in its existence entirely unreasonable.