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posted on 8/23/18

It has been almost 50 years since Dirty Harry hit the big screen in 1971. In this scene, loose canon crimefighter Harry Callaghan meets with the San Francisco District Attorney and an appeals court judge. They inform a discombobulated Harry that the evidence he seized from a suspected serial killer would be inadmissible in court.

Criminal defense has changed a lot since then. Today, the search warrant rule is much more prosecutor-friendly than it was back then. In fact, the exceptions to this requirements are so broad that they have effectively swallowed the general rule.

Plain View

Harry seized a hunting rifle and some other evidence as he pursued a fleeing suspect. Furthermore, the rifle was out in the open when he grabbed it.

Today, this evidence would be admissible under the plain view doctrine. If officers legally detain a suspect, they may seize any contraband that they find in plain view. This rule applies to guns, drugs, and any other criminal implements. In some cases, that could include things which are otherwise legal, like cash or a ski mask, thatmay be tied to a prior bank robbery.

Officers cannot circumvent this rule. For example, they cannot use thermal imaging to bring items into plain view. They must also have a right to be at that place at that time. This part of the rule would have been an issue in the Dirty Harry seizure.

Exigent Circumstances

Harry did not see Scorpio (the serial killer suspect) commit a crime. However, he did have some reason to believe that a hostage may have been in danger. Today, such a belief may trigger the exigent circumstances exception to the search warrant requirement.

Normally, officers must have warrants to enter another person’s business or dwelling. But if they believe that there is trouble at that location, they may enter without a warrant to ensure safety. While there, they may seize any items in plain view.

The scope of these searches is sometimes an issue. For example, if officers enter a house in response to reports of a gas leak, do they also have the right to enter an unattached garage? Probably not.

Other Exceptions

The consent exception sometimes comes up in warrantless building searches as well. If the owner gives consent, officers may search a building or car to their heart’s content. Actually, the person giving consent need not even be the owner. Officers must only have a reasonable belief that the person had authority to give consent. That may be a roommate whose name is not on the lease.

Locked containers have a higher expectation of privacy and the scope of consent searches may be limited. If a roommate gives consent to search an apartment, officers probably cannot open a locked box in the other roommate’s bedroom. That person has a higher expectation of privacy in that box.

Before 2009’s Arizona v. Gant, officers often used the search-incident-to-arrest exception. Officers could “arrest” suspects for rather trivial crimes, like speeding, and then tear their cars apart looking for contraband. But Gant sharply limited the scope of such searches. So, this exception is open to attack my motions to quash the search.

Contact Assertive Attorneys

Warrantless searches are PRESUMED to be unreasonable. It is the state’s burden to show that a warrantless search IS reasonable. However, the state only has to show that the search was reasonable if your attorney files the appropriate motions to contest the search.

For a confidential consultation with an experienced criminal defense lawyer in Schaumburg, contact Glasgow & Olsson.