Warrant Exceptions – Darren Chaker

Darren Chaker

The most common exceptions include:

No Search:  There is no search when an officer “observe(s) criminal activity with the naked eye from a vantage point accessible to the general public.”  (United States v. Garcia (9th Cir. 367 1993) 997 F.2 1273, 1279; People v. Ortiz (1994) 32 Cal.App.4th 286, 291.)

A plain sight observation of contraband or other evidence made while the officer is in a place or a position he or she has a lawful right to be does not involve any constitutional issues.  (People v. Block (1971) 6 Cal.3rd 239, 243; North v. Superior Court (1972) 8 Cal.3 301, 306.)
No Expectation of Privacy:  There is no expectation of privacy in anything voluntarily exposed to public view.  (People v. Benedict (1969) 2 Cal.App.4th 400.) “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”  (Katz v. United States (1967) 389 U.S. 347, 351 [19 L.Ed.2nd 576, 582.)

The Plain Sight Observationvs. the Right To Enter a Residence:  When observing contraband within a residence from the outside, a warrantless entry into those premises to seize the contraband would not be justified absent exigent circumstances.  (Horton v. California (1990 496 U.S. 128, 137, fn. 7 [110 L.Ed.2nd 112, 123]; United States v. Murphy (9th Cir. 2008) 516 F.3rd 1117, 1121.)  A search warrant authorizing the entry of the residence must first be obtained.

Exigent Circumstances:  The presence of exigent circumstances will excuse the lack of a warrant.  “Exigent Circumstances” are present, as a general rule, whenever there is no reasonable opportunity for the police officers to stop and take the time to get a search warrant.   (See United States v. Ventresca (1965) 380 U.S. 102, 107 [13 L.Ed.2nd 684, 688].)
There are additional exceptions, such as crossing the border, DUI test, being on probation, however the above are just a few to start with.

© 2011 Darren Chaker. All Rights Reserved.

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