In the 1971 movie Dirty Harry, antihero Harry Callaghan seizes a hunting rifle from a suspected serial killer’s apartment. The San Francisco District Attorney, along with an appeals court judge, inform a clearly agitated Dirty Harry that the evidence is inadmissible in court and that “Scorpio” must go free.
Apropos of nothing, Scorpio’s character was based on the real-life Zodiac serial killer, who was never apprehended.
That movie is now almost fifty years old, and it illustrates how much criminal law has changed over this period. Today, that rifle might be admissible under one of several search warrant exceptions.
If officers see contraband in the open, they may seize it. This straightforward rule is one of the most common search warrant exceptions. It’s especially widely-used in Parker County traffic stops.
There are a couple of limitations. First, partial plain view is sometimes an issue. For example, what if a Fort Worth police officer sees part of a gun grip protruding from underneath the seat during a traffic stop? Can the officer seize the gun, even though it is arguably not in “plain view?” Second, the officer must have a legal right to be at that location at that time.
If officers reasonably believe that someone may be in danger, they may enter a building without a warrant and seize any contraband they see in plain view. This emergency could be a report of shots fired or a gas leak, even if these reports are unverified.
There is very little law on the scope of these searches. If officers respond to a gas leak report, do they have the right to enter the first floor and the second floor as well as the garage to make sure everyone is safe?
Search Incident to Arrest
Until 2009’s Arizona v. Gant, officers had the right to conduct extensive searches following arrests. This power often led to abuses. Parker County officers could “arrest” a person for speeding and then almost literally tear the car apart right on the spot.
Gant limited these searches to weapons pat-downs related to officer safety. So, this exception is not used much anymore. However, if officers find drugs or other contraband during pat-downs, they may seize it, under the aforementioned plain view doctrine.
Although it was not a part of the Dirty Harry/Scorpio seizure, consent is a widely-used exception as well. To enter a building or open a locked box, officers only need the consent of the owner. In fact, the standard is even lower. In some cases, a roommate or even a passenger could give consent to search a house or car. The officers only need a reasonable belief that the person who gave consent had that authority.
Today’s police officers have broad powers to circumvent the Fourth Amendment. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. Convenient payment plans are available.