Search and Seizure: Exceptions to Warrant

by Tim Baldwin

In Montana and United States Constitutions, warrantless searches and seizures are per se invalid. However, there are several exceptions to this rule. The recognized exceptions to a warrantless search and seizure follow: (1) exigent circumstances existed; (2) the citizen gave voluntary and knowing consent for the officer to enter, search and seize; (3) the officers obtained evidence in “plain view”; (4) the officers obtained evidence under the Public Caretaker Doctrine; (5) the search was made pursuant to the Defendant’s terms of probation; and (6) the officers obtained evidence under the Inevitable Discovery Doctrine. I will explain each exception briefly.

Exigent Circumstances

Exigent circumstances have been defined as follows.

those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

United States v. Zermeno (9th Cir.1995), 66 F.3d 1058, 1063 (quoting United States v. McConney (9th Cir.1984), 728 F.2d 1195, 1199, cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)). Exigent circumstances are not a subjective determination. The officer must have facts to justify a search and seizure under the exigent circumstances exception.

Additionally, Montana law requires that the officers knock and announce their presence before a search. In State v. Hill, the Montana Supreme Court stated,

In Montana, the ‘knock and announce’ rule requires that government agents knock and announce their presence prior to entering an individual’s home without a warrant unless exigent circumstances are present.

Hill, 345 Mont. 95, 102, 189 P.3d 1201, 1207 (2008). The officer must have a reasonable belief to determine whether exigent circumstances exist. And “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Richards v. Wis., 520 U.S at 394 (1997). If no exigent circumstances and the officer did not knock and announce his presence to search, the officer cannot search person or property without a warrant.

Consent

The Montana Supreme Court has set forth the factors used to determine whether consent was given voluntary and without coercion. It stated the following in State v. Munson as follows.

This test focuses on “the nature of [the individual’s] subjective understanding,” Schneckloth, 412 U.S. at 230, 93 S. Ct. at 2049, which in turn depends on “the characteristics of [the individual] and the details of the interrogation,” Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047. A number of considerations are pertinent to this inquiry, such as whether the individual was in custody or under arrest at the time consent was requested; whether consent was sought after the search had already been conducted; whether the individual was expressly informed that he or she had the right not to consent to the search; whether the individual was told that a search warrant could be obtained; whether the individual was advised of his or her constitutional rights; the repeated and prolonged nature of the questioning; the individual’s age, education, and intelligence; and whether the individual was threatened or coerced in any manner.

Munson, 2007 MT 222, P51, 339 Mont. 68, 169 P.3d 364, 2007 Mont. LEXIS 403 (Mont. 2007). Where the State cannot prove that consent was given voluntary and knowingly, the officer’s search of that person or property is illegal and must be suppressed.

Along with the rule of consent, the Montana Supreme Court has ruled that, in cases where an officer observes evidence of a person who is in a place of privacy, that person must have knowingly exposed himself to the public for the officer’s observations to be admissible. The Montana Supreme Court said,

[P]ersons have an actual (subjective) expectation of privacy…within the confines of their private homes and enclosed structures and which they do not knowingly expose to the public.

State v. Siegal, 281 Mont. 250, 275, 934 P.2d 176, 191, 1997 Mont. LEXIS 39, 48, 54 Mont. St. Rep. 158 (Mont. 1997); see also, State v. 1993 Chevrolet Pickup, 2005 MT 180, P14, 328 Mont. 10, 15-16, 116 P.3d 800, 804 (Mont. 2005) (“Voluntary relinquishment of one’s interest in an item or one’s control over that item is akin to the legal concept of abandonment”); State v. Wilson, 218 Mont. 359 (Mont. 1985).

If a person does not give voluntary and knowing consent, the officer cannot search without a warrant. And unless a person exposes himself knowingly to the public, the officer’s observations of that person inside a place of privacy are inadmissible.

Plain View Doctrine

The Montana Supreme Court in State v. Lewis, (Mont. 2007) stated the Plain View Doctrine this way:

the plain view doctrine…“allows peace officers, under certain circumstances, to seize evidence in plain view without a warrant.” State v. Loh, 275 Mont. 460, 468, 914 P.2d 592, 597 (1996). If, while a law enforcement officer is lawfully present on an individual’s property, and in the course of his or her lawful presence, the officer discovers evidence in plain view, and if its incriminating nature is “immediately apparent,” then that evidence may be seized and used against the defendant at trial.

Id., 2007 MT 295, P22, 340 Mont. 10, 17-18, 171 P.3d 731, 737 (emphasis added). In short, if an officer is not a place lawfully to begin with, nothing he observes in plain view is admissible. For example, say an officer views illegal drugs on a person’s kitchen counter, but the officer is not in the house lawfully, then the officer’s “plain view” observations are illegal. The officer’s presence must be lawful before his “plain view” is admissible.

Caretaker Doctrine

The Montana Supreme Court described the Caretaker Doctrine this way.

The community caretaker doctrine, like the Terry investigative stop, is a recognized exception to the Fourth Amendment’s and Article II, Section 11’s prohibitions against unreasonable searches and seizures. Lovegren, PP 16-17. This doctrine is operative in cases where law enforcement initiates contact with a citizen not in order to investigate the commission of a crime, but to investigate a potential vehicle accident, or otherwise ensure the safety of citizens.

State v. Graham, 2007 MT 358, P25, 340 Mont. 366, 373, 175 P.3d 885, 890, 2007 Mont. LEXIS 612, 13-14 (Mont. 2007). The Montana Supreme Court has stated further,

once…the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure implicating not only the protections provided by the Fourth Amendment, but more importantly, those greater guarantees afforded under Article II, Sections 10 and 11 of the Montana Constitution as interpreted in this Court’s decisions.

Graham, 340 Mont. at 373, citing State v. Lovegren, 2002 MT 153, 310 Mont. 358, 51 P.3d 471, 2002 Mont. LEXIS 315 (Mont. 2002). If the officer makes contact with a person under the Caretaker Doctrine, he must not be investigating the commission of a crime and must be making contact only to investigate a citizen’s peril. Then, once the officer sees that no peril exists, he must cease his contact. Any evidence the officer observes from the pretense of “caretaker” is illegal and inadmissible.

Probationer

The Montana Supreme Court has explained the general rule of law regarding the search of a probationer this way:

The search of a person may be conducted pursuant to a valid search warrant or in accordance with a judicially recognized exception. Section 46-5-101, MCA. In Montana, a probation officer may search a probationer’s residence without a warrant so long as the officer has reasonable cause for the search. See State v. Roper, 2001 MT 96, P12, 305 Mont. 212, P12, 26 P.3d 741, P12; State v. Beaudry, 282 Mont. 225, 228, 937 P.2d 459, 460-61 (1997); State v. Burchett, 277 Mont. 192, 195, 921 P.2d 854, 856 (1996); State v. Boston, 269 Mont. 300, 305, 889 P.2d 814, 817 (1995); and State v. Burke, 235 Mont. 165, 169, 766 P.2d 254, 256-57 (1988). “The ‘reasonable cause’ standard is substantially less than the probable cause standard required by the Fourth Amendment because of the probationer’s diminished expectation of privacy . . . .” Burchett, 277 Mont. at 195-96, 921 P.2d at 856 (citing Burke, 235 Mont. at 169, 766 P.2d at 256-57, and Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987)). Admin. R. M. 20.7.1101(7) further underscores our precedent by permitting a warrantless search of a probationer’s or parolee’s person, vehicle or residence only “upon reasonable cause.”

State v. Moody, 2006 MT 305, P12, 334 Mont. 517, 521, 148 P.3d 662, 665, 2006 Mont. LEXIS 635, 5-6 (Mont. 2006) (emphasis added). There are many issues that surround these kinds of searches. Suffice it to say, searches may be illegal against a probationer if the search was not conducted by the probation officer, was conducted not according to the terms of the sentence order (e.g. not at the probationer’s home, not his vehicle), and was conducted to investigate a new crime.

Inevitable Discovery Doctrine (IDD)

The Montana Supreme Court has adopted the United States Supreme Court’s definition of the IDD:

It is clear that the cases implementing the exclusionary rule begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity. Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means–here the volunteers’ search–then the deterrence rationale has so little basis that the evidence should be received.

State v. Ellis, 2009 MT 192, P54, 351 Mont. 95, 111, 210 P.3d 144, 154-155, 2009 Mont. LEXIS 226, 32-33 (Mont. 2009), quoting Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377, 1984 U.S. LEXIS 101, 52 U.S.L.W. 4732 (U.S. 1984).

In explaining the IDD the Montana Supreme Court recognized, “inevitable discovery most often applies when the investigatory procedures were already in progress prior to the illegal search.” Ellis, 351 Mont. at 111. The Court in Ellis showed, “evidence seized [that] was not the inevitable product of a legal search already in progress” does not qualify under the IDD. The Court explained the facts for its ruling as follows.

The police who responded to Ellis’s residence had no authority to search any part of his home, much less seize evidence of a crime which he allegedly committed; the officers were not involved in a legal search already in progress when they seized evidence from S.S.’s bedroom and person.

Ellis, 351 Mont. at 111. The Court reasoned that conducting searches where a warrant is needed prevents the State from using any evidence obtained from the illegal search under the IDD. The Court in Ellis used a Ninth Circuit Court of Appeals case to explain its ruling, stating,

In Mejia, the Ninth Circuit Court of Appeals rejected the contention that the inevitable discovery doctrine applied where law enforcement officers had probable cause to conduct a search, but simply failed to obtain a warrant. Mejia, 69 F.3d at 319. In so holding, the Court of Appeals explained that it has never applied the inevitable discovery exception

“so as to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant. As we stated in Echegoyen, to ‘excuse the failure to obtain a warrant merely because the officers had probable cause and could have obtained a warrant would completely obviate the warrant requirement.’”

Mejia, 69 F.3d at 320 (citing Echegoyen, 799 F.2d at 1280 n. 7; United States v. Johnson, 22 F.3d 674, 683 (6th Cir. 1994)). The Court of Appeals further stated:

“If evidence were admitted notwithstanding the officers’ unexcused failure to obtain a warrant, simply because probable cause existed, then there would never be any reason for officers to seek a warrant. To apply the inevitable discovery doctrine whenever the police could have obtained a warrant but chose not to would in effect eliminate the warrant requirement.

“We are neither free nor willing to read the warrant requirement out of the Constitution. Accordingly, even if we assume that the detectives were in possession of competent evidence showing probable cause at the time of the search, the inevitable discovery doctrine would not justify introduction of the evidence seized without a warrant.”

Ellis, 351 Mont. at 112. Like the Plain View Doctrine, the officers must have been in a lawful search for this doctrine to apply. If the officer did not have a lawful reason to be present or to be searching to begin with, then no evidence discovered as a result of his presence and searching is admissible.

Conclusion

The Montana and United States Constitutions require warrants for searches and seizures, but you can bet that officers and prosecutors will try to use these exceptions where they can. Many times, people do not know their rights in these areas and give them up too eagerly thinking that the officers will help them later. Had these citizens simply reserved their rights, they would be in a much better position. Search and Seizure law comprises the bulk of criminal law. Suffice to say, if you have been charged with a crime and the officers have conducted any searches and seizures, you need to consult with any attorney about your case.

If you have been charged with a crime and need a criminal defense attorney, email Tim Baldwin at timbaldwin@outlook.com.