Under Utah criminal law, an arrest is an action in which a police officer takes away a person’s freedom in some significant way. A person can be arrested when an officer has a good reason to believe the person has committed a crime or is in the process of committing one. A police officer doesn’t have to say “you’re under arrest” for an arrest to occur – a command such as “Stand still” or “Come along” usually is enough. If you or anyone you know has been arrested, contact an experienced Salt Lake City Utah criminal defense lawyer.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. A search without a warrant by government agents is presumptively unreasonable. Even so, under certain circumstances, the Supreme Court has recognized that a warrantless search does not offend the Fourth Amendment. A search conducted pursuant to valid consent is an exception to both the probable cause and the warrant requirements of the Fourth Amendment. The Court has developed several lines of consent-search jurisprudence: (1) citizen-defendant consent searches, (2) third-party consent—citizen with actual authority, and (3) third-party consent—citizen with apparent authority. Our hypothetical is based on the apparent authority variety.
Defining consent is a critical step in order to determine the applicable line of jurisprudence. Generally, the police search of property without a warrant or without probable cause is constitutional if it was made pursuant to voluntary consent. The question of whether consent was voluntary or the product of duress or coercion is a question for the courts. In any event, voluntariness is to be determined from all the circumstances. The confessor’s knowledge of a right to refuse consent may be a factor in the totality of the circumstances, but not a dispositive one.
Involuntary consent occurs when the circumstances created by the police cause the target (confessing party) of the search surprise confusion or fright—so much so that the citizen’s will to say no is overcome. Similarly, consent has been invalidated where it was the product of threats. Courts have considered many factors in the totality of the circumstances.
Citizen Yields to a Policeman’s Claim of Authority to Search
Pursuant to a Warrant—Acquiescence
There is no voluntary consent when a citizen complies with a policeman’s untruthful assertion that he possessed a warrant to conduct a search. Such a concession is not voluntary consent, but unlawful acquiescence. A citizen who acquiesces to a policeman’s claim of authority cannot voluntarily consent.
Third-Party Consent—Actual Authority versus Apparent Authority
Where a person other than the target of the search gives consent to the police another type of consent analysis applies: third-party consent. Under the third-party consent exception, the consent may be obtained from someone other than the target of the search. There are two varieties of third-party consent.
First is the actual authority variety. Under this category of consent, in order for a third party to have authority to give consent, he must (actually) possess common authority over or have other sufficient relationship to the premises or effects sought to be searched. A prosecutor offering to prove third-party consent pursuant to this theory must show that the third-party consenter possessed common authority over the premises, and that possession is valid against the absent non-consenting person with whom that authority is shared. Consequently, the target (non-consenting party) of the search has assumed the risk that the third-party consenter would admit others.
Second is the apparent authority variety. This type of third-party consent does not require either joint access or assumption of risk. The Supreme Court has said that as with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: Would the facts available to the officer at the moment warrant a man of reasonable caution in the belief’ (apparent) that the consenting party had authority over the premises? Hence, if a third party appears to have actual authority and the police reasonably rely on that appearance, the consent is valid. Indeed, the officer’s reasonable reliance may be incorrect, but such an error will not invalidate a third-party consent because the Fourth Amendment only requires the government to act reasonably. Under this version of third-party consent the test is reasonableness.
A search or seizure conducted without a warrant is presumptively unreasonable. However, a warrantless entry may be reasonable if based on exceptional circumstances. An exceptional circumstance occurs when there are exigent circumstances in which to preserve the evidence of the crime police action literally must be now or never. In other words, under exigent circumstances it is permissible for the police to act without prior judicial approval.
Now-or-never searches have included warrantless entry (1) to a suspect’s home due to exigent circumstances, (2) to provide emergency aid, (3) to search a readily mobile automobile, and (4) to conduct searches and seizures for evidence that is in imminent danger of destruction.
Warrantless Search of a Movable Car
The so-called automobile exception allows the police to conduct a warrantless search of a car under exigent circumstances. Where the police have probable cause that an automobile contains contraband, but it is not practical for the police to secure a warrant, the police may conduct a warrantless search of that automobile because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
The main rationale for permitting a warrantless search of an automobile is that automobiles are readily movable, and the opportunity for a search is fleeting. The automobile could only be lawfully searched (1) without a warrant if the search was conducted at the scene of the stop, or (2) with a warrant where the search was conducted at the police station.
Under this lesser expectation of privacy rationale, it is permissible for the police to conduct a warrantless removal of paint scrapings from the exterior of a citizen’s car. An automobile’s interior (entitled to protection of at least those areas not exposed to public view) from its exterior (not entitled to protection).
The automobile exception is applicable to motor homes because a motor home is more like an automobile than a home. Although this exception relied on the ready mobility of the vehicle and on the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for transportation, it curiously implied that the automobile exception may apply to a vehicle even if that vehicle is situated in a way or place that objectively indicates that it is being used as a residence.
Arrest without a Warrant in a Public Place
The United States Supreme Court has consistently observed that it is a cardinal principle that warrantless searches are per se unreasonable under the Fourth Amendment. However, the Court has recognized that this cardinal principle is subject to a few specifically established and well-delineated exceptions. One such delineated exception is that the Fourth Amendment does not require a warrant to make a valid arrest for a felony offense.
Where a police officer has probable cause that a citizen has committed a criminal offense (no matter how minor), the police may arrest without balancing (governmental and individual interests) costs and benefits or without determining whether the arrest of the citizen was in some sense necessary. Balancing, however, may be appropriate under special circumstances.
Moreover, a person’s capacity to claim the protection of the Fourth Amendment, does not depend on a property right but on whether that person had a legitimate expectation of privacy in the invaded place. However, one who merely claims to be legitimately on the premises may not claim the protection of the Fourth Amendment. On the other hand, a house guest may claim such an expectation of privacy in his host’s premises.
A search incident to a lawful arrest involves two types of warrantless searches: the arrestee’s person and the area within his immediate control. The justification or reason for the police authority to conduct a search of the arrestee’s person after a lawful arrest rests as much on the need to disarm the suspect, in order to take him into custody, as it does on the need to preserve evidence on his person for later use at trial.
A custodial arrest based on probable cause is a reasonable intrusion under the Fourth Amendment. And as the arrest was lawful, a search of the person incident to that lawful arrest requires no additional justification. Consequently, a full search of the person (and any containers on his person) is always reasonable as an incident to a lawful custodial arrest. Moreover, this reasonable search of the person was not dependent on the existence of police department policy establishing the conditions under which a full-scale body search should be conducted.
The Fourth Amendment is implicated when a government agent conducts a search or seizure. A search or seizure is presumptively reasonable if it was made pursuant to a warrant or a recognized exception to a warrant. A search incident to a lawful custodial arrest is a recognized exception to the warrant requirement. And, a search incident to a lawful custodial arrest allows the arresting officer to conduct a warrantless search of the arrestee’s person and the area within his immediate control. Moreover, the police may conduct a warrantless search of a person incident to a seizure other than a custodial arrest, and based on fewer facts than required to establish probable cause.
There is no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion that the search or seizure entails.
In order to justify an intrusion on a citizen’s Fourth Amendment interests on a less-than-probable-cause basis a police officer must be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant that intrusion. Moreover, the state must show that those facts known by the officer at the moment of the seizure or search would warrant a man of reasonable caution in the belief that the action taken was appropriate.
A law enforcement agent may stop a citizen on facts that amount to less than probable cause to arrest if the officer can point to specific and articulable facts that, taken together with rational inferences from those facts, would warrant a man of reasonable caution in the belief that a brief investigative stop is appropriate. Consistent with this stop the officer may take steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. And when conducting that pat-down if the officer feels what he immediately recognizes as contraband (non-weapon), he may reach inside the clothing and seize it pursuant to the plain feel doctrine.
The Fourth Amendment is implicated when the government conducts a search or seizure. A seizure may involve a custodial arrest, a stop and frisk, a stop and interrogate (including a traffic stop), or a situation when either a police officer uses physical force to detain a person or a person submits or yields to a police officer’s show of authority. On the other hand, consensual encounters or those unrelated to the detection and investigation of criminal conduct do not implicate the Fourth Amendment: for example, when police are engaged in so-called community care taking tasks (i.e., removing abandoned cars from the highway).
A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the government’s action, by means of physical force or show of authority, terminates or restrains the person’s freedom of movement through means intentionally applied. Generally a seizure does not occur simply because a police officer approaches an individual and asks a few questions (this is a consensual encounter), so long as a reasonable person would feel free to disregard the police and go about his business. Indeed, no justification is required for the police to approach (consensually encounter) a citizen under such circumstances.
Criminal law essentially deals with crime. If you have been arrested by the police, the first thing you need to do is call an experienced Salt Lake City Utah criminal defense lawyer. As a person charged with a crime, you have the right to an attorney. Exercise your right. This right is guaranteed by the constitution of the United States of America to protect you.
Salt Lake City Utah Criminal Attorney Free Consultation
When you need a criminal lawyer in Salt Lake City Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. Drug Crimes. Sex Crimes. White Collar Crimes. Assault. Battery. And More. We want to help you.
8833 S. Redwood Road, Suite C
itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506