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The Fourth Amendment of the U.S. Constitution protects people from unreasonable government search and seizure. The South Carolina Constitution, Article I, Section 10, also prohibits unreasonable search and seizure.
But that doesn’t mean that the police always need a warrant to conduct a search. There are circumstances when law enforcement can conduct a search without a warrant.
Understanding Warrantless Searches: What the Law Says in South Carolina
The law doesn’t prohibit all law enforcement searches; South Carolina law protects us from searches that are unreasonable.
A warrantless search can be valid, however, the police can only search without a warrant in certain situations.
When Can the Police Search Without a Warrant?
The police can search without a warrant in the following circumstances:
Consent Given
The police can search if the person consents to it. If the police ask, “Is it okay if I look in your car?” you can say no. Then, the police would need to get a warrant or rely on some other kind of exception. The same is true if they ask to search your home or your personal belongings – you can say no. If you say yes, law enforcement can search without a warrant.
Common issues surrounding consent searches are third-party consent (when someone else can consent for you), and if there is a legitimate expectation of privacy in the area searched.
Urgent Circumstances
Sometimes, there isn’t time to get a warrant. A person may be in danger and need immediate assistance. Police may need to respond quickly to an emergency. When someone sees law enforcement nearby, they might try to destroy evidence while the police get the warrant. These exceptions are called exigent circumstances or hot pursuit. Payton v. New York, 445 U.S. 573 (1980).
Search Incident to Lawful Arrest
If the police lawfully arrest someone, they can search them. For example, the police could arrest someone for not having a valid driver’s license. Then, they could conduct a frisk of the person during the arrest. If the search reveals contraband, the person could be prosecuted. However, the underlying arrest must be lawful. United States v. Robinson, 414 U.S. 218 (1973).
Plain Sight, Plain View
Law enforcement officers can seize evidence when they see it. If something illegal or evidence of a crime is out in the open, the police don’t need a warrant to take it. The seizure falls under the clear view or plain sight exception. For the exception to apply, the law enforcement officer must have the legal right to access the area or observe the situation. Horton v. California, 496 U.S. 128 (1990).
No Legitimate Expectation of Privacy
The right to be free of unreasonable search and seizure applies to people, not things. The police can search a place where people don’t have the right to an expectation of privacy. An example is garbage left out for collection. California v. Greenwood, 486 U.S. 35 (1988).
Border Searches
Generally, officials can search people and property entering the United States. They may do so without a warrant. However, there is still scrutiny, especially in circumstances where the search is conducted a significant distance from the physical border.
What Officers Can Legally Seize Without a Warrant
If law enforcement can lawfully search without a warrant, they may seize evidence of a crime or anything illegal that they find. Even if the items seized are not what law enforcement might find, they may seize them, if allowed by law. There are still limitations for warrantless searches. Law enforcement cannot detain a person for an unreasonable time for the purpose of a search or conduct an overly invasive search.
Probable Cause
To search someone without a warrant, law enforcement officers must have probable cause. Because the right to be free of unreasonable search is so important in the United States, and more specifically South Carolina, the actions of law enforcement officers are subject to scrutiny by the courts. Law enforcement officers must be able to articulate the reason for their actions; their reasons must be reasonable.
The police cannot just go to court and say that they relied on their years of experience as a law enforcement officer. If they cannot articulate an exception to the warrant requirement, and if their reasons are not reasonable, the evidence may be suppressed.
Draper v. United States, 358 US 307 (1959).
What about a pat down? Do the police need a warrant for a pat down search?
A pat down is when the police feel the outer layer of a person’s clothing to see if they have weapons.
The pat down is done for police safety. Even though a warrant is not required to do a pat down, the police may not pat down anyone they please. Instead, they must have a reasonable suspicion that the person to be searched is armed. (Terry v. Ohio).
What To Do if You Feel Your Rights Were Violated During a Warrantless Search
Do you think your rights may have been violated by a warrantless search? Are you wondering if law enforcement did the right thing? Contact Shealey Law Firm. We handle criminal defense and civil rights violation cases. Contact us for a consultation and get legal help today.