Search Incident to Arrest - Needs Tags Columns - LawOfficer.com

Search Incident to Arrest

An overview

 


 

Jason Schuck, Esq., LexisNexis Legal Analyst | Sunday, February 8, 2009

Upon the lawful arrest of a person, the arresting officer is entitled to search both the person of the suspect and the area that was in the immediate control of the suspect prior to the arrest. This exception is premised on the notion that the arrest of a suspect, when based on probable cause, is per se reasonable with respect to the Fourth Amendment. Since this intrusion on an individual's freedom is by definition lawful, a search incident to the arrest requires no additional justification the arrest itself establishes the authority to search.

Notice that the arrest must be lawful, i.e., based on probable cause. If an arrest is later deemed improper, all evidence seized in the search incident to that arrest will be suppressed.

Under this exception, a search of all effects in the suspect's possession is permissible. However, as mentioned, the scope of the search must be limited to the suspect's person, or what is in, or potentially could be in, the suspect's immediate control. A region is deemed within the "immediate control" of the suspect when he or she might immediately and easily gain possession of a weapon or destructible evidence from that area (Chimel v. California 395 U.S. 752 (1969)). Factors a court may consider in determining the scope of a suspect's area of immediate control include the following:

  • the number of suspects arrested,
  • the number of officers present,
  • the officers' physical positioning with regard to the suspects and the place searched,
  • whether the officers displayed their guns, and
  • the distance between the suspect and the place searched (U.S. v. Hudson, 100 F.3d 1409 (9th Cir. 1996); U.S v. Parra, 2 F.3d 1058 (10th Cir. 1993)).

An officer may reach into a suspect's pockets during a search incident to arrest (U.S.v. Humphries, 372 F.3 653 (4 Cir. 2004); U.S.v. Pratt, 355 F.3 1119 (8 Cir. 2004); U.S.v. Goddard, 312 F.3 1360 (11 Cir. 2002)). A search of closed pack of cigarettes found in an arrestee's pocket has also been upheld (U.S.v. Robinson, 414 U.S. 218 (1973)). The search may extend to a wallet, purse, shoulder bag or briefcase carried by or within reach of the suspect (U.S.v. Johnson, 846 F.3 279 (5 Cir. 1988); U.S. v. Molinaro, 877 F.2d 1341 (7 Cir. 1989); U.S. v. Moreno, 569 F.2 1049 (9 Cir. 1978)). At least one federal court has even held that the call records and text messages stored in a cell phone kept on a suspect's person may be "searched" (i.e. read) incident to the suspect's arrest (U.S.v. Finley, 477 F.3 250 (5 Cir. 2007)).

The search may precede the arrest, as long as probable cause for the arrest exists independently of what is found during the search and probable cause to arrest exists before the search is conducted. In other words, an officer may not use the fruits of a search as the basis for the arrest of the suspect, and then seek to justify the search as incident to the arrest (Rawlings v. Kentucky, 448 U.S. 98 (1980)).

A proper search incident to an arrest should be conducted contemporaneously with the arrest, i.e., immediately preceding or succeeding that actual physical act of arrest. However, a search of articles in the possession of the defendant at the time of arrest may not only be conducted at the time of the arrest, but may instead be conducted later, and at a different location, if a reasonable explanation for the delay is put forth. For example, in U.S. v. Edwards, 415 U.S. 800 (1974), the U.S. Supreme Court held a delay of ten hours between arrest and a station house search permissible.

When an officer arrests an occupant of a car, he or she may search the passenger compartment, and any open, or unopened containers therein, as incident to the arrest. In New York v. Belton, 453 U.S. 454 (1981), after a state trooper stopped a car for speeding and ordered all the occupants out of the car, he smelled burnt marijuana and observed an envelope marked "Supergold" on the car floor which resembled a type frequently used to sell that drug. After inspecting the envelope and finding marijuana, he arrested all the occupants. The U.S. Supreme Court held that the search incident to an arrest can extend to any part of the passenger compartment of the automobile, including open or closed containers, glove compartments, consoles and luggage. Therefore, the search of the envelope was lawful incident to the occupants' arrest.

Remember that a Belton search can only extend to the passenger compartment of a vehicle--not the trunk. However, some courts have found that the rear storage area behind the back-most seat in trunkless vehicles--e.g. hatchbacks, SUVs--may be searched incident to the arrest of an occupant (U.S.v. Allen, 469 F.3 11 (1 Cir. 2006); U.S.v. Mayo, 394 F.3 1271 (9 Cir. 2004); U.S.v. Olguin-Rivera, 168 F.3 1203 (10 Cir. 1999)). At least one federal court has also upheld the search of a "trap door" found behind an armrest in the middle of the back seat, a factory-designed device that allowed things longer than the trunk to get passed into the back seat (U.S.v. Poggemiller, 375 F.3 686 (8 Cir. 2004)). Using one's fingers to part the rubber seal over a window well and looking inside with a pen light has also been deemed a lawful search incident to arrest (U.S.v. Barnes, 374 F.3 601 (8 Cir. 2004)).

A Belton search is still allowed when the arrestee is a "recent occupant" who has already stepped out of the vehicle when the officer first makes contact (Thornton v. U.S., 541 U.S. 615 (2004)). One federal court even upheld a search incident to arrest of a Jeep when the suspect was in the process of entering the vehicle (she had opened the passenger door, hiked up her skirt and placed her purse on the floorboard) when police approached her (U.S.v. Bush, 404 F.3 263 (4 Cir. 2005)).

However, a Belton search is not allowed during a routine traffic stop where only a traffic citation is issued but no formal arrest is made (Knowles v. Iowa, 525 U.S. 113 (1998)).

Closely related to a search incident to arrest is the so-called "Buie sweep," named after Maryland v. Buie, 494 U.S. 325 (1990). In that case, the U.S. Supreme Court held that when police make an arrest at a residence, they may conduct a warrantless search of the arrest scene, known as a "protective sweep." The extent of the sweep is limited to a brief cursory visual inspection of the premises for persons who may be waiting to ambush the officers. The Court reasoned that it is reasonable for officers to safeguard themselves by ensuring that no others are present who could injure them. It is important to note this is not a general crime scene exception to the warrant requirement but rather a doctrine that may be used to justify a warrantless search in particularized circumstances. A sweep is permissible only "when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." The sweep must be limited to areas large enough to conceal a person--for example, a search of a closet or under a bed would be acceptable, but not of a desk or bureau drawer, because that is too small a space for a person to hide.

Courts have ruled that if an arrestee has a substantial need for clothing, police may make a brief entry into the arrestee's residence in order to retrieve the appropriate garments, or may accompany the suspect while he dresses himself. For example, a shirtless suspect arrested outside his home on a chilly evening, or a shoeless suspect. The burden is on the prosecution to demonstrate that the arrestee had a substantial need for the clothing sought, and that police conduct was limited strictly to meeting that need.

Note that this article presents a general overview of search and seizure law under the Fourth Amendment to the U.S. Constitution some states have more stringent requirements for searches.




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