On police power stop and frisky and also search without warrant
The case law has developed many exceptions to the warrant requirement. It should be noted, however,
that in every such case probable cause is also required. Moreover, there are certain other exceptions to
the warrant requirement that do not require probable cause, which means that they cannot be
considered “search” or “arrest.” It is crucial to understand the difference that exists between the
measures covered by the Fourth Amendment and other forms of interference with an individual’s rights
and freedoms, such as the procedure known as stop and frisk. In concise terms, a police officer may stop
a person on the street and frisk her (conducting a pat down) without probable cause, if the police officer
believes that the person has committed, is committing, or is about to commit a crime and has a
reasonable belief that the person “may be armed and presently dan gerous.”139 The standard of
certainty required in such case is “reasonable suspicion” which requires a lower level of certainty than
probable cause and for that reason remains outside of the Fourth Amendment’s protection. And only if
stop and frisk gives rise to probable cause to believe that the suspect has committed a crime, should the
police be empowered to make a formal arrest and a full incident search of a person.140 There is no
doubt that stop and frisk should be considered as a coercive measure, perhaps of a lenient character,
but still infringing the rights and freedoms of every individual faced with such measure.
The list of exceptions from the warrant requirement is long. For instance, a warrant is not needed in
cases of so- called searches incident to arrest. This was justified in Chimel v. California, where the
Supreme Court stated that search without warrant is permitted “to remove any weapons that the
[arrestee] might seek to use in order to resist arrest or effect his escape” and to “seize any evidence on
the arrestee’s person in order to prevent its concealment or destruction.”142 This long- standing and
almost unquestionable practice of the criminal justice authorities has recently been reevaluated in the
context of unwarranted searches of the cellphones of arrestees.143 Another exception to the warrant
requirement is referred to as exigent circumstances. The allowance for the imposition of search or arrest
without a warrant is justified by the nature of the situation that requires the police to act immediately
where there is a danger to themselves or others, the foreseen possibility that evidence will be
destroyed, or that the suspect will escape.144 As it was held by the Supreme Court “where there are
exigent circumstances in which police action literally must be ‘now or never’ to pre serve the evidence
of the crime, it is reasonable to permit action without prior judicial authorization.”145 As distinct from
what is known from other systems of law discussed in this book but typical of the common- law systems,
these exceptions are not a result of normative regulation but are much more fragmented and result
from the extensive case law on the issue. Also, auto mobile searches are exempted from the warrant
requirement146 as well the so-called plain-view doctrine.147 But the common requirement for all these
is the existence of probable cause justifying the imposition of the measure.
