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Texas recognizes a number of statutory exceptions to the warrant requirement, as well as exceptions developed through case law. One statutory exception provides for the arrest of an individual who has committed an offense in the presence of the police officer. See Article 14.01, Texas Code of Criminal Procedure. “[T]he information afforded to the officer by his senses must give the officer reason to believe that a particular suspect committed the offense.” State v. Steelman, 93 S.W.3d 102 (Tex.Crim.App. 2002)[emphasis in original]. Another statutory exception appears in the Texas Transportation Code, which allows blood to be drawn from drivers in fatal accidents. Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002), cert. denied 538 U.S. 1060 (2003).


Under the “plain view doctrine”, “once officers are lawfully in a position to observe an item first hand, the owner’s privacy interest in that item is lost.” Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983). See also U.S. v. Osunegbu, 822 F.2d 472 (5th Cir. 1987) [searching post office box and outside of mail].


 However, the officer must obtain his view from a location where he has a right to be. U.S. v. Jackson, 588 F.2d 1046, 1053 (5th Cir. 1979) [“[w]e have not hesitated to find an illegal search where the government agent trespasses in order to secure his plain view”]; U.S. v. Whaley, 781 F.2d 417, 418 (5th Cir. 1986) [a sheriff ‘drove onto the driveway of a residence where his car’s lights illuminated …plants he had observed from the roadway was unconstitutional since the officer was only able to make “positive identification” by driving his car onto the individual’s curtilage, thereby invading his privacy]; Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974)[same]; U.S. v. Ladson, 774 F.2d 436 (11th Cir. 1985) [agents who entered premises pursuant to a forfeiture order against the real estate’s owner, had no right to inventory the contents of those leased premises which belonged to the tenant]; U.S. v. Amuny, 767 F.2d 1113, 1125-29 (5th Cir. 1985) [holding that “climbing onto the wing [of an aircraft] and garnering an otherwise unavailable view through the front windshield constitute an unlawful search”, noting that “the plain view doctrine does not apply” to an observation obtained by such an intrusion];

Cf U.S. v. Martin, 806 F.2d 204 (8th Cir. 1986) [noting items in plain view in vehicle parked on public street lacked Fourth Amendment protection from unreasonable search, such that “plain view doctrine” did not apply].

The plain view doctrine does not controvert the rule that, absent exigent circumstances, a police officer must have a warrant to enter a home or its curtilage to make a search or seizure.

See In re T.H., 898 A.2d 908 (D.C. 2006) [A police officer who spied a box of illegal fireworks in the open cargo area of a parked sport utility vehicle did not have probable cause to arrest a back seat passenger for possessing the fireworks. The court decided that the presence of the fireworks in the car was not so suggestive of the defendant’s involvement in lawbreaking as to give rise to probable cause.]


Interpreting another passage from the dicta in Coolidge v. New Hampshire, 403 U.S. 443 (1971), the Supreme Court held that the Fourth Amendment does not prohibit warrantless seizure of evidence of crime in plain view, even where its discovery was not inadvertent. Horton v. California, 496 U.S. 128, 110 L.Ed.2d 112, 110 S.Ct. 2301 (1990).


The Supreme Court has held that in order for the “plain view” doctrine to warrant a seizure it must be “immediately apparent” to the searching officer that he has contraband or evidence of a crime before him.

Cases where not “immediately” apparent:

Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Arizona v. Hicks, 480

U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) [officers may not lift an object in order to read a serial number];

U.S. v. Gray, 484 F.2d 352 (6th Cir. 1973), cert. denied, 414 U.S. 1158 [serial nos. on firearms]; Williams v. State, 743 S.W.2d 642 (Tex.Crim.App. 1988) [not immediately apparent guns were stolen]; Nicholas v. State, 502 S.W.2d 169, 172 (Tex.Crim.App. 1973) [photographic negatives]; McGlynn v. State, 704 S.W.2d 18 (Tex.Crim.App. 1982) [prescription bottle]; Sullivan v. State, 626 S.W.2d 58 (Tex.Crim. App. 1981) [pill bottle]; Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L.Ed.2d 334 (1993) [plain view does not allow manipulation of an object to determined what it is].

But see U.S. v. Meyer, 827 F.2d 943 (3d Cir. 1987), abrogated by Horton v. California, 496 U.S. 128 (1990)[officer may rely on surrounding circumstances in determining immediate apparent nature]; U.S. v. Iredia, 866 F.2d 114 (5th Cir. 1989) [officer testified that during Belton search it was “immediately apparent” to him that an address book was probably incriminating evidence, the book’s seizure after the vehicle containing same was moved to a secret service garage was proper even though not seized during a search conducted with standardized police procedures].

In Texas, the one-time discovery of a single plastic bag containing marijuana residue in the garbage did not establish probable cause to search the house in light of the totality of other circumstances. See State v. Davila, 169 S.W.3d 735 (Tex. App-Austin 2005).


U.S. v. Falcon, 766 F.2d 1469 (10th Cir. 1985) [court held that an audio tape discovered during a consent search could be listened to without a warrant].


However, one court has held that even after Texas v. Brown it is not “immediately apparent” that writings are evidence or instrumentalities of crime without reading same. U.S. v. McLernon, 746 F.2d 1098 (6th Cir. 1984) [it was not immediately apparent that a note pad and calendar were incriminating].

“The district court …apparently understood the Supreme Court’s Brown decision to have ‘qualified’ the immediately apparent test ‘by holding that the police need only have probable cause to believe the seized item has criminal significance or evidentiary value….” Our decisions predating and post- dating Brown, however, and the majority in Brown itself, have not only unequivocally adhered to the ‘immediately apparent’ test, but have embellished that test. We find absolutely nothing in the Supreme Court’s Brown decision to undermine the policies, principles and precedents which require us to determine whether the agents’ probable cause to believe the note pad and calendar were evidence of a crime was both immediate and apparent to them upon their ‘plain view’ of the objects. The note pad and the calendar themselves were undoubtedly in ‘plain view’.

Yet, we find that probable cause of criminality was neither immediate nor apparent to the agents from their plain view of the items. Unlike the sawed-off shotgun in Truitt and the knotted balloon in Brown, the note pad and calendar in this case were hardly ‘intrinsically’ incriminating. Indeed such items are found in plain view of virtually every desk across this country. We do not, and cannot, subscribe to a rule of law which allows officers of the state to seize an item as evidence merely because it is in ‘plain view’.” U.S. v. McLernon, 746 F.2d 1098 (6th Cir. 1984).

See also Scoggan v. State, 736 S.W.2d 239 (Tex.App.-1987), reversed and remanded on other grounds, 799 S.W.2d. 679 (Tex. Crim. App.1990) [magazines were not properly seized although in plain view when seizure of photos and clothes were authorized by the warrant].

But see Johnston v. U.S., 832 F.2d 1 (1st Cir. 1987) [adding machine tapes could be seized during search for evidence relating to drug trafficking because in plain view and police had probable cause].

The collective knowledge doctrine could be applied to establish that the incriminating nature of firearms was “immediately apparent” were during a protective sweep of suspect’s home officers did not themselves have knowledge of prior conviction, thereby making possession illegal. See U.S. v. Waldrop, 404 F.3d 365 (5th Cir 2005).


U.S. v. Dart, 747 F.2d 263 (4th Cir. 1984) [holding “it was not immediately apparent that any of the weapons first seen in the stack were unregistered or stolen”]; U.S. v. Bonitz, 826 F.2d 954 (10th Cir. 1987) [items used to convert a rifle into an automatic weapon and the rifle could not be seized since not in plain view]; U.S. v. Owen, 621 F. Supp. 1498 (E.D. Mich. 1985) [refusing to apply good faith exception to warrant seizure of weapons whose contraband character had not been immediately apparent]; U.S. v. Gray, 484 F.2d 352 (6th Cir.), cert. denied, 414 U.S. 1158 (1973); U.S. v. LaFerrera, 596 F. Supp. 362 (S.D. Fla. 1984) [searching of premises for evidence of theft of electricity pursuant to a valid search warrant, police found and removed weapons, although

it is permissible to secure the weapons for the safety of those conducting the search, absent probable cause to believe a crime has been or is being committed, police were not authorized in seizing the items in plain view because it was not immediately apparent that the items were illegal]; U.S. v. Szymkowiak, 727 F.2d 95 (6th Cir. 1984) [observation of an AR-15 rifle did not cause the illegal nature of the weapon to be “immediately apparent” so that it could be lawfully seized under the plain view doctrine]; State v. Cook, 332 S.E.2d 147 (W.Va. 1985) [evidentiary value of checkbook found during search of accused’s hotel room was not apparent until it had been opened and examined]; U.S. v. Robinson, 535 F.2d 881, 886 (5th Cir. 1976) [could not tell envelope with check [observable] was a stolen Treasury Check];U.S. v. Martin, 640 F. Supp. 543 (E.D.Ark. 1986) [notebook and folder which were nondescript].


Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) [moving stereo equipment constitutes seizure requiring probable cause].


Moya v. U.S., 761 F.2d 322 (7th Cir. 1985) [observation of the corner of a plastic bag protruding from accused’s luggage did not establish the degree of cause necessary to warrant belief same was contraband]; Texas

  1. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) [probable cause to believe that a small party balloon tied at one end was used to conceal narcotics].


The District of Columbia Court of Appeals has expanded the “plain view doctrine” to include the seizure of the contents of bags that when lawfully touched by a police officer are “so apparent to him as to bring them into his ‘plain view’.” U.S. v. Williams, 822 F.2d 1174, 1182 (D.C. Cir. 1987), overturned on other grounds, U.S.

  1. Caballero, 936 F.2d 1292 (D.C. Cir. 1991). However, an officer may not manipulate an item in a pocket to determine what is inside. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L.Ed.2d 334 (1993).


The Supreme Court, in an opinion by Justice Rehnquist criticized the “use of the phrase ‘immediately apparent'” as a “very likely … unhappy choice of words” in Coolidge v. New Hampshire, 403 U.S. 443, n. 24, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1978), “since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the ‘plain view’ doctrine.” Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983).

Rather than some “high degree of certainty” the Court held the officer needs only “probable cause to associate the property with criminal activity.” Texas v. Brown, 460 U.S. at 741.

“It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution and belief’ …that certain items may be contraband or stolen property or useful and evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.” Texas v. Brown, 460 U.S. at 741.

The Court found that the fact the particular “party balloon” seen in defendant’s vehicle was “knotted about one half inch from the tip” and that in the experience of the arresting officer (and a testifying chemist) “narcotics frequently were packaged’ in balloons of such “distinctive character”, coupled with the open glove compartment containing “several small plastic vials, quantities of loose white powder, and an open bag of party balloons”, constituted probable cause to seize the balloon in “plain view”. Texas v. Brown, 460 U.S. at 743.

The Supreme Court clarified the issue by holding that an object seen by officers in plain view after lawfully entering a residence may not be searched or seized unless the officers have probable cause to believe that the object is contraband or evidence of a crime. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

“We have not ruled on the question whether probable cause is required in order to invoke the ‘plain view’ doctrine. Dicta in Payton v. New York, 445 U.S. 573, 587 (1980), suggested that the standard of probable cause must be met, but our later opinion in Texas v. Brown, 460 U.S. 730 (1983), explicitly regarded the issue as unresolved. Texas v. Brown, 460 U.S. at 742 n.7 [plurality]; see also id. at 746 [Stevens, J., concurring].

We now hold that probable cause is required. To say otherwise would be to cut the ‘plain view’ doctrine loose from its theoretical and practical moorings. The theory of that doctrine consists of extending to non-public places such as the home, where searches and seizures without a warrant are presumptively unreasonable, the police’s longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband. See Payton v. New York, 445 U.S. at 586-587. And the practical justification for that extension is the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk – to themselves or to preservation of the evidence – of going to obtain a warrant. See Coolidge v. New Hampshire, 403 U.S. at 468 (plurality). Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i.e., the standard of probable cause. No reason is apparent why an object should routinely be seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for that same object if it had been known to be on the premises.” Arizona v. Hicks, 480 U.S. at 327.

The Court reaffirmed Hicks by holding that the manipulation of a hard object that was not a weapon constituted a search and therefore did not fit within the “plain view” or pat down exception to warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L.Ed.2d 334 (1993).

U.S. v. Johnston, 784 F.2d 416 (1st Cir. 1986) [“Immediately Apparent” requirement may be based upon cumulated knowledge of all officers but police cannot closely scrutinize an item to ascertain its incriminating nature]; U.S. v. Villarreal, 963 F.2d 770, 776 (5th Cir. 1992) [drums labeled as “phosphoric acid” with shipping orders indicating the same, yet which contained marijuana, did not outwardly reveal their contents, and therefore owner still had reasonable expectation of privacy in actual contents “Stated another way, a label on a container is not an invitation to search it.”]; State v. Griffith, 2011 Ohio 4476 (Ohio Ct. App. 2011) [small quantity of marijuana found in plain view (or smell) in passenger compartment is not reason to search the trunk, more is required].


If officers must scrutinize an item further, then its incriminating nature is not immediately apparent. U.S.

  1. Johnston, 784 F.2d 416 (1st Cir. 1986); State v. Gallegos, 712 P.2d 207 (Utah 1985) [noting independent outside investigation establishing probable cause precludes plain view doctrine’s element of “immediately apparent” illegality; item investigated must be named in warrant].


The concurring justices in Texas v. Brown were quick to point out that while the officer there had probable cause to believe he had evidence of a crime before him “… a closed container may not be opened without a warrant, even when the container is in plain view and the officer has probable cause to believe contraband is concealed within” [citing Chadwick and Sanders] unless “there was probable cause to search the entire vehicle” [under Ross] or [there was virtual certainty that the balloon contained a controlled substance “because the balloon was one of those rare single-purpose containers” which by its nature could not support any “reasonable expectation of privacy” [under Sanders]. Texas v. Brown, 460 U.S. at 747. [Stevens, J., concurring].

Accordingly, while officers may be entitled to seize opaque plastic wrapped packages that reeked of marihuana, they were required to obtain a warrant prior to opening and searching packages once the officer had rendered them to their own custody and control.

U.S. v. Miller, 769 F.2d 554 (9th Cir. 1985) [holding seizure of a clear plastic bag that fell out of defendant’s suitcase and a field test of the white powder inside were held to be lawful under the plain view doctrine. But the court held that a warrant was required to make incisions into a second bag and an opaque container in it because it was neither immediately apparent that it was contraband nor was it a “single purpose container”].

Likewise, where officers executing a search warrant seized documents in plain view but outside of the scope of the warrant, a separate search warrant was required to obtain the printed matter contained on the documents since same was not immediately apparent. LeClair v. Hart, 800 F.2d 692 (7th Cir. 1986) [officers dictated the contents of document verbatim into a tape recorder].

Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)[where federal agents were in lawful possession of videotapes which had been shipped in interstate commerce, the labels of which clearly indicated that the contents depicted sexually explicit materials, a warrant was nevertheless required for the agents to view the tapes. This is because, while it is illegal to ship obscene materials in interstate commerce, it is not illegal to ship merely sexually explicit materials. Since a label indicating sexually explicit contents does not per se indicate that the contents are obscene, the evidence of illegality was not “immediately apparent”].

Contra U.S. v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890, 899 (1985)[warrantless search of packages seized from a truck on a landing strip three days after the seizure was held permissible]; Cooper v California, 386 U.S. 58, 61-62, 17 L Ed 2d 730, 87 S. Ct. 788 (1967) [upholding as inventory of impounded vehicle warrantless search that took place seven days after seizure of automobile pending forfeiture proceedings].”

Comprehensive searches of computers have relied upon the plain view doctrine. Comprehensive Drug Testing v. United States, 621 F.3d 1162 (9th Cir. 2009) (en banc revised and superseded opinion “CDT III”). However some courts have rejected that a search of a computer could rely upon the plain view doctrine and must obtain a particular warrant not a general warrant if a computer is to be searched. See In re United States of America’s Application for a Search Warrant to Seize and Search Electronic Devices from Edward Cunnius, 770

  1. Supp. 2d 1138 (W.D. Wash. 2011) (invalidating a general warrant to search defendants computer unless a “filter team” is used).


 In U.S. v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) however, the Court held that a federal agent needed no search warrant to conduct a “field test” of a white powdery substance in a translucent plastic bag that had been turned over to the agent following its discovery by Federal Express, a private freight carrier. Relying on the private search doctrine, the Court reasoned that the DEA agents’ intrusion into the contents of the bag did not exceed the scope of the antecedent private search by Federal Express employees – who had examined the contents of the box “for insurance purposes” after it was damaged. After the freight carrier’s search, the box simply could not support any expectation of privacy.

According to the majority it did not matter whether or not the “powder” was actually in “plain view” when DEA agents arrived, as the contents had already been described to the agents and “there was a virtual certainty that a manual inspection …would not tell [the agent] anything more than he had already been told”.

And, analogizing the “field test” to the intrusion of luggage by sniffing canines approved in U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Court stressed the nature of information revealed by the test does not compromise any legitimate interest in privacy:

“A chemical test that merely discloses whether or not a particular item is cocaine does not compromise any legitimate interest in privacy. This is true, whether the result is positive or negative. If positive, the test has revealed the presence of a substance in which there can be no legitimate interest. If the results are negative nothing of special interest has been revealed.” U.S. v. Jacobsen, 466 U.S. at 123.


One of the “jealously and carefully drawn” exceptions to the warrant requirement is where law enforcement officers are faced with exigent circumstances requiring prompt action.

Courts have held such “exigent circumstances” to include:


 Warden v. Hayden, 387 U.S. 294 (1967); U.S. v. Crespo, 834 F.2d 267 (2d Cir. 1987); U.S. v. Tabor, 722 F.2d

596 (10th Cir. 1983); U.S. v. Metzger, 778 F.2d 1195 (6th Cir. 1985).

But see U.S. v. Walker, 673 F. Supp. 292 (N.D. Ill. 1987) [warrantless search for others in house while proceeding with bail bond forfeiture warrant was impermissible because there was no danger presented].


U.S. v. Williams, 612 F.2d 735 (3d Cir. 1979), cert. denied, 445 U.S. 934 (1980); U.S. v. Impink, 728 F.2d 1228 (9th Cir. 1984); U.S. v. Palumbo, 742 F.2d 656 (1st Cir. 1984) [officers must use least restrictive intrusion in preventing destruction of evidence]; State v. Ramirez, 746 P.2d 344 (Wash. Ct. App. 1987) [smell of burning marijuana did not provide an exigent circumstance since the same provided suspicion of only minor crime violation].

Kentucky v. King, 131 S.Ct. 1849 (2011)[warrantless entry to prevent the destruction of evidence is allowed where police do not create the exigency through actual or threatened Fourth Amendment violation]

Computer Data; U.S. v. Bradley, 644 F.3d 1213 (11th Cir. 2011)[An officer shutting down a computer server for an entire business without a warrant to search the server was justified by exigent circumstances that employees would erase crucial evidence with a few keystrokes].

In the very recent case, Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Court addressed the issue of whether the natural dissipation of alcohol in a person’s bloodstream constitutes an “exigent circumstance” justifying a warrantless blood draw. While recognizing that there may be circumstances in which obtaining a warrant impractical, the Court refused to adopt a per se rule allowing warrantless blood draws from DWI suspects. McNeely, 133 S. Ct. at 1555. In part II-B of the majority opinion, authored by Justice Sotomayor, in which Justices Scalia, Kennedy, Ginsburg and Kagan joined, the Court held that “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id. at 1563. Concurring in part and dissenting in part, the Chief Justice, joined by Justices Breyer and Alito made “no quarrel with the Court’s ‘totality of the circumstances approach as a general matter.” Id. at 1569 (Roberts, C.J., concurring in part, dissenting in part). The Chief Justice explained that, while “the majority offers no additional guidance, merely instructing courts and police officers to consider the totality of the circumstances,” he would prefer the Court to “[s]imply put, when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should come down to whether there is time to secure one.” Id. at 1574. (Roberts, C.J., concurring in part, dissenting in part).

The lone vote contrary to the rest of the Court was by Justice Thomas. He put forth that “[b]ecause the body’s natural metabolization of alcohol inevitably destroys evidence of a crime, it constitutes an exigent circumstance.” Id. (Thomas, J., dissenting).


Warden v. Hayden, 387 U.S. 294 (1967); U.S. v. Santana, 427 U.S. 38 (1976); U.S. v. Williams, 612 F.2d 735 (3d Cir. 1979), cert. denied, 445 U.S. 934 (1980).

See also Drug Enforcement Report, at 4 (August 8, 1988)[noting that pursuant to agreement between U.S. Forrest Service and DEA, forest rangers are “deputized” to engage in “hot pursuit” of marijuana growers off of national forest land].


U.S. v. Collazo, 732 F.2d 1200, 1204 (4th Cir. 1984) [“The Government will not be allowed to plead its own lack of preparation to create an exigency justifying warrantless entry”]; Niro v. U.S., 388 F.2d 535 (1st Cir. 1968); U.S. v. Satterfield, 743 F.2d 827, 845 (11th Cir. 1984) [protection against unknown accomplice returning to the house while the officers took the arrestees to jail and obtained a search warrant “…is not the type of circumstance[] that creates an urgent need for immediate actions”.); U.S. v. Thompson, 700 F.2d 944, 950 (5th Cir. 1983); U.S. v. Morgan, 743 F.2d 1158, 1163 (6th Cir. 1984) [defendant posed no risk until officers surrounded home and flooded it with high-powered spotlights]; U.S. v. Allard II, 600 F.2d 1301, 1304 n.2 (9th Cir. 1979);

U.S. v. Hultgren, 713 F.2d 79 (5th Cir. 1983) [government created delays and inconvenience of presenting facts to magistrate]; U.S. v. Dowell, 724 F.2d 599 (7th Cir.), cert. denied, 104 S.Ct. 1683 (1984).

But see U.S. v. Gomez, 652 F. Supp. 715 (S.D.N.Y. 1987) [prior to knocking on apartment door and identifying themselves, police lacked probable cause for a search warrant; but, upon hearing breaking glass inside closed apartment, their acts in entering apartment to prevent flight and to avoid destruction of evidence were reasonable response to exigency, and not a police-created exigency]; U.S. v. De Los Santos, 810 F.2d 1326 (5th Cir. 1987) [informant stated that defendant was going to go to a house to pick up heroin. Agents had to follow defendant to discover location of house, wait for defendant to leave in order to search house to discover no drugs, and then agents formed reasonable belief that defendant had picked up drugs in order to arrest him]; Kentucky v. King, 131 S.Ct. 1849 (2011)[police followed suspect who just bought drugs from undercover agent into apartment complex only to loose him. After smelling burning marijuana at one door they knocked and announced, heard evidence being destroyed, and entered the premesis without a warrant to find that this was not the person they were searching for but never the less arrested him and charged him with drugs obtained from this warrantless entry. This was not police created exigency].


 Where officers had 90-120 minutes during which they could at least attempt to obtain a telephone arrest warrant, their failure to do so undermines their claim of exigent circumstances. U.S. v. Alvarez, 810 F.2d 879 (9th Cir. 1987). See also U.S. v. Patino, 830 F.2d 1413 (7th Cir. 1981) [officers had 40 minutes]. A static-only 911 call by its self did not provide police officers with the exigent circumstances necessary to conduct a warrantless search of the residence from which the call originated. U.S. v. Martinez, 643 F.3d 1292 (10th Cir. 2011).

But see U.S. v. Aquino, 836 F.2d 1268 (10th Cir. 1988) [court was concerned about warrantless entry of home after lapse of time without a warrant but upheld conviction].



Where a citizen’s Fourth Amendment protections are diminished under a “safety” statute, regulation, or exception, the scope of any governmental intrusion undertaken pursuant to that exception must be limited to the safety purpose that warranted the intrusion in the first place.


Under the “public safety” exception to the requirement of giving Miranda warnings, an accused’s custodial statements may be admissible despite their nature and regardless of the officer’s motivation in questioning the suspect.

New York v. Quarles, 467 U.S. 649, 651, 81 L.Ed.2d 550, 554, 104 S.Ct. 2626 (1984) [officers may inquire as to location of firearm allegedly used in crime to protect supermarket patrons despite failing to give Miranda warnings to arrestee].

“[O]verriding considerations of public safety justified the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon.” New York v. Quarles, 467 U.S. at 651.

“Although Terry and Long speak in terms of an objective test (‘reasonableness’) for determining the officer’s frisk for weapons, we do not read those cases as permitting a frisk where, although the circumstances might pass an objective test, the officers were not actually concerned for their safety.”

U.S. v. Lott, 870 F.2d 778 (1st Cir. 1989) [protective search of vehicle or person must be justified by officer’s subjective concern].

Texas expanded the public safety exception in recognizing a “community caretaking” exception to the warrant requirement. Wright v. State, 7 S.W.3d 148 (Tex.Crim. App. 1999); State v. Cavanaugh, No. 01-04-00194CR not selected for publication (Tex. App. Hous. [1st Dist] 2005); Huschle v. State, No. 05-05-00907 CR (Tex. App. Dal. 2006).

“In evaluating whether an officer reasonably believes that a person needs help, courts may look to a list of four non- exclusive factors: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and 4) to what extent the individual, if not assisted, presented a danger to himself or others.” Corbin v. State, 85 S.W.3d 272 (Tex.Crim. App. 2002).

However, if the court finds that the officer was primarily motivated by a “non-community caretaking purpose”, the community-caretaking exceptions is not applicable and cannot be used to justify his intrusion. Swaffar v. State, 258 S.W.3d 254 (Tex.App.-Fort Worth 2008).


However, the Supreme Court has held that where police officers enter premises under the emergency exception to the warrant requirement, their search is limited to the purpose warranting their initial intrusion. Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 94 L.Ed.2d 347, 355 (1987). Unless that safety purpose amounts to a criminal violation in a regulated industry such as statutes regulating “chop shop” junkyards. New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987).

“Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i.e., probable cause. No reason is apparent why an object should routinely be seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for the same object if it had been known to be on the premises.” Arizona Hicks, 480 U.S. at 327.

See also Minnesota v. Dickersen, 508 U.S. 366, 113 S. Ct. 2130, 124 L.Ed.2d 334 (1993) [a frisk permitted in Terry stop for safety purpose, once satisfied may not manipulate an object to determine if crack cocaine].

The Supreme Court held that The Fourth Amendment’s emergency aid doctrine permits law enforcement officers to make a warrantless entry of a home when they are presented with circumstances that would lead a reasonable officer to believe that an occupant is seriously injured or in imminent danger of being seriously injured, regardless of the officers’ actual motives for making the warrantless entry; a threat of ongoing violence within a home is a sufficiently serious danger to justify a warrantless entry of the home under the emergency aid doctrine. Law enforcement officers’ actual, subjective motives for making a warrantless entry of a home are irrelevant to whether the entry is “reasonable” for purposes of the Fourth Amendment’s emergency aid doctrine. In a unanimous opinion, the court left unanswered a number of divisive questions about the doctrine, but it did make clear that facts that indicate a threat of ongoing domestic violence will allow police to make a warrantless entry of a home. See Brigham City, Utah v. Stuart, 547 U.S. 398 (2006).

Also see Shepherd v. State, 273 S.W.3d 681 (Tex.Crim.App.,2008). [Finding that “the emergency doctrine does not apply when police are carrying out their crime-fighting role by conducting a search based on probable cause to gather evidence of a crime. Rather, the doctrine allows the police to engage in conduct that would otherwise violate the Fourth Amendment if they are acting on reasonable belief that doing so is immediately necessary to protect or preserve life or avoid serious injury.” (emphasis added and internal quotations omitted)]

Also see Glazner v. State, 175 S.W.3d 262 (Tex.Crim.App.2005). [The search of Appellant’s person was not unlawful. A pat-down search is permitted if the cop can “point to specific and articulable facts, which, taken with rational inferences from those facts, reasonably warrant the intrusion.” The officer need not feel personally threatened, or be absolutely certain the person is armed to justify the pat-down. The officer testified at the suppression hearing that he saw what he believed was a knife in the defendant’s pocket. Therefore, the pat-down was justified because Martin believed Appellant might be armed.]


Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

“[T]he ‘murder scene exception’ …is inconsistent with the Fourth and Fourteenth Amendments …the warrantless search of Mincey’s apartment was not constitutionally permissible simply because a homicide had recently occurred there.” Mincey v. Arizona, 437 U.S. at 395.

Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984) [unanimously declined to read a “murder scene” exception into the Fourth Amendment].


Thompson v. Louisiana, 469 U.S. 14, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984).

“Petitioner’s attempt to get medical assistance does not evidence a diminished expectation of privacy on her part. To be sure, this action would have justified the authorities in seizing evidence under the plain view doctrine while they were in petitioner’s house to offer her assistance. In addition, the same doctrine may justify seizure of evidence obtained in the limited ‘victim-or-suspect’ search discussed in Mincey. However, the evidence at issue here was not discovered in plain view while the police were assisting petitioner to the hospital, nor was it discovered during the ‘victim-or-suspect’ search that had been completed by the time the homicide investigators arrived. Petitioner’s call for help can hardly be seen as an invitation to the general public that would have converted her home into the sort of public place for which no warrant to search would be necessary.” Thompson v. Louisiana, 469 U.S. at 22.


 Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641 (1984):

“If a warrant is necessary, the object of the search determines the type of warrant required. If the primary object is to determine the cause and origin of a recent fire, an administrative warrant will suffice.

If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched.

Because the cause of the fire was then known, the search of the upper portions of the house, described above, could only have been a search to gather evidence of the crime of arson. Absent exigent circumstances, such a search requires a criminal warrant.

Even if the mid-day basement search had been a valid administrative search, it would not have justified the upstairs search. The scope of such a search is limited to that reasonably necessary to determine the cause and origin of a fire and to ensure against rekindling.” Michigan v. Clifford, 464 U.S. at 294, 298.


In two cases decided the same day, the Supreme Court upheld drug testing in the work place after finding same constitutes a search subject to Fourth Amendment protections. Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 103 L.Ed.2d 639 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L.Ed.2d 685 (1989).

In Skinner, the Court upheld railroad safety regulations which authorized drug testing of certain employees without a warrant or probable cause after finding same constitutes a search.

The majority first holds that drug testing is a search reasoning that “[t]here are few activities in society more personal or private than the passing of urine,” Skinner v. Railway Labor Executives Ass’n., 489 U.S. at 602; and then holds that Fourth Amendment protections are not invoked since the privacy interests involved are minimal, a contradiction exposed by Justice Marshall in his dissent:

“The majority’s characterization of the privacy interests implicated by urine collection as ‘minimal’ is nothing short of startling. This characterization is, furthermore, belied by the majority’s own prior explanation of why compulsory urination constitutes a search for the purposes of the Fourth Amendment:

‘There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.'” Skinner v. Railway Labor Executives Ass’n., 489 U.S. at 679 [relying on National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L.Ed.2d 685 (1989)].

The fact that the majority can invoke this powerful passage in the context of deciding that a search has occurred, and then ignore it in deciding that the privacy interests this search implicates are ‘minimal’, underscores the shameless manipulability of its balancing approach.” Skinner v. Railway Labor Executives Ass’n., 489 U.S. at 679.

In National Treasury Employees Union v. Von Raab, in a five-to-four decision, the Supreme Court held that drug testing of U.S. Customs Service employees seeking transfer to positions which directly involved the interdiction of illegal drugs, required the carrying of a firearm or required the handling of “classified” materials did not violate the Fourth Amendment. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L.Ed.2d 685 (1989).

Likewise, in the special setting of a high school, the Supreme Court upheld suspicionless urinanalysis drug testing policy against a Fourth Amendment challenge, reasoning that requiring all students who participated in competitive extracurricular activities was a reasonable means of furthering the school’s important interest in preventing drug use among school children. Board of Education of School District No. 92 of Pottawatomie County, v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002).

In another setting, the roadside stop of a driver suspected of driving while intoxicated, a warrant is required before an officer may draw and test the blood of the driver. The doctrine that one consents to a breath test by driving a vehicle on the highways does not invalidate a search of drawn blood conducted pursuant to a lawfully obtained warrant for the same. See Beeman v. State, 86 S.W.3d 613 (Tex.Crim.App. 2002) [implied consent statute did not preclude taking of blood sample pursuant to search warrant issued under Fourth Amendment, and thus result of test was admissible].


Justice Scalia, in a forceful dissent, warns of the dangers inherent in the war on drugs in our society:

“There is irony in the Government’s citation, in support of its position of Justice Brandeis’s statement in

Olmstead v. United States, 277 U.S. 438, 485, 72 L.Ed. 944, 48 S.Ct. 564, 66 A.L.R. 376 (1928) that

‘[f]or good or for ill, [our Government] teaches the whole people by its example.’ Brief for United States at 36. Brandeis was dissenting from the Court’s admission of evidence obtained through an unlawful Government wiretap. He was not praising the Government’s example that ‘the end justifies the means,” Olmstead v. United States, 277 U.S. at 485. An even more apt quotation from that famous Brandeis dissent would have been the following:

“[I]t is …immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Olmstead v. United States, 277 U.S. at 479.

Those who lose because of the lack of understanding that begot the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us – who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.” National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L.Ed.2d 685 (1989) [relying on Olmstead v. U.S., 277 U.S. 438, 485 (1928)].


The Supreme Court has expanded the “closely regulated” business exception to include “junkyards”.

New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987).

“An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home     This expectation is particularly attenuated in commercial property employed in ‘closely regulated’ industries. The Court observed in Marshall v. Barlow’s, Inc., ‘[c]ertain industries have such a history of government oversight that no reasonable expectation of privacy.   could exist for a proprietor over the stock of such an enterprise.” Marshall v. Barlow’s, Inc., 436 U.S. 307 at 313.

Because the owner or operator of commercial premises in a ‘closely regulated’ industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search.   has lessened application in this context. Rather, we conclude that, as in other situations of ‘special need’. where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment.

This warrantless inspection, however, even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met.

First, there must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made. See Donovan v. Dewey, 452 U.S. 594 at 602 [stating ‘substantial federal interest in improving the health and safety conditions in the Nation’s underground and surface mines’]; United States v. Biswell, 406

U.S. 311 at 315 [noting regulation of firearms is ‘of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders’]; Colonnade Corp. v. United States, 397 U.S. 72 at 75 [interest “in protecting the revenue against various types of fraud”].

Second, the warrantless inspections must be “necessary to further [the] regulatory scheme”. Donovan v. Dewey, 452 U.S. at 600.

For example, in Dewey, we recognized that forcing mine inspectors to obtain a warrant before every inspection might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act – to detect and thus to deter safety and health violations. Donovan v. Dewey, 452 U.S. at 603.

Finally, ‘the statute’s inspection programs, in terms of the certainty and regularity of its application, [must provid[e] a constitutionally adequate substitute for a warrant.’ In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. See Marshall v. Barlow’s, Inc., 436 U.S. at 325 [Stevens, J., dissenting]. To perform this first function, the statute must be ‘sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.’ Donovan

  1. Dewey, 452 U.S. 594 at 600. In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be ‘carefully limited in time, place, and scope.” United States v. Biswell, 406 U.S. 311 at 315.

See also Robinson v. State, 728 S.W.2d 858 (Tex. 1987) [Texas has such a statute];U.S. v. Schafer, 461 F.2d 856 (9th Cir. 1972) [Plant Pest Act Case where the court stated the four requirements for a warrantless “administrative search”].

Again, these include:

  1. a significant public protection is involved,
  2. the intrusion involved is minimal,
  3. the goal is not the discovery of a crime, and
  4. the governmental purpose would be thwarted by requiring a

Contra U.S. v. Thomas, 973 F.2d 1152 (5th Cir. 1992) [an administrative search will not be invalidated because searching agent reasonably suspected crime, and was searching for evidence of same, even where no administrative searches were ever conducted for any other reason].


The government cannot use a civil forfeiture “seizure” warrant to search for and to gain evidence or to physically intrude upon an owner. U.S. v. Ladson, 774 F.2d 436 (11th Cir. 1985). See also Forfeiture Searches of Real Property, 25 AMER. CRIM. L. REV. 59 (1987).


In U.S. v. Verdugo-Urquidez, 494 U.S. 259, 108 L.Ed.2d 222, 110 S.Ct. 1056 (1990), the Supreme Court held the Fourth Amendment does not apply to the search of an alien’s property, by U.S. agents, located in a foreign country. In a 6 to 3 opinion written by Rehnquist, the Supreme Court held that:

“[W]e think it significant to note that [the Fourth Amendment] operates in a different manner than the Fifth Amendment, which is not at issue in this case. The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. The Fourth Amendment functions differently. It prohibits ‘unreasonable searches and seizures’ whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is ‘fully accomplished’ at the time of a unreasonable governmental intrusion. For purposes of this case, therefore, if there were a constitutional violation, it occurred solely in Mexico. Whether evidence obtained from respondent’s Mexican residences should be excluded at trial in the United States is a remedial question separate from the existence vel non of the constitutional violation.

“…What we know of the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters. The Framers originally decided not to include a provision like the Fourth Amendment, because they believed the National Government lacked power to conduct searches and seizures.

“…The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.

“…Justice Stevens’ concurrence in the judgment takes the view that even though the search took place in Mexico, it is nonetheless governed by the requirements of the Fourth Amendment because respondent was ‘lawfully present in the United States…even though he was brought and held here against his will.’ But this sort of presence — lawful but involuntary — is not of the sort to indicate any substantial connection with our country. The extent to which respondent might claim the protection of the Fourth Amendment if the duration of his stay in the United States were to be prolonged — by a prison sentence, for example –

– we need not decide.” [citations omitted–Kennedy and Stevens concurring/ Brennan, Marshall, and Blackmun Dissenting]. U.S. v. Verdugo-Urquidez, 494 U.S. 259, 108 L.Ed.2d 222, 110 S.Ct. 1056 (1990).

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