Police Searches After an Arrest: Scope and Intensity

The location of the officer and the evidence will go a long way in determining whether a warrant is needed.

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Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. Assuming that the officer has probable cause to make the arrest in the first place, a search of the person and the person’s surroundings following the arrest is valid, and any evidence uncovered is admissible at trial.

If probable cause exists, the Fourth Amendment allows police officers to arrest and search suspects for committing minor offenses that usually result in citations rather than arrests. (Virginia v. Moore, U.S. Sup. Ct. 2009.)

Example: Police Officer Leigh issues Miller a traffic ticket for driving with a broken taillight. After noticing that Miller’s driver’s license was suspended, Leigh arrests Miller, even though the law authorized him only to cite and release Miller. Leigh searches Miller incident to the arrest, finds illegal drugs in Miller’s purse, and also arrests Miller for possession of illegal drugs. Leigh had the right to arrest and search Miller. Because Leigh had probable cause to make an arrest, the search is constitutional even though Leigh could have issued a citation to Miller rather than arrest her.

Where Did the Arrest Take Place Relative to the Search?

An officer cannot search your dwelling or car when you're arrested elsewhere, such as on the street or at the mall. To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search. The general rule is that the police may search the arrested person and the area within that person’s immediate control (Chimel v. California, U.S. Sup. Ct. 1969). For example, an arresting officer may search not only a suspect’s clothes, but also a suspect’s wallet or purse. If an arrest takes place in a kitchen, the arresting officer can probably search the kitchen, but not the rest of the house. If an arrest takes place outside a house, the arresting officer cannot search the house at all. To conduct a search broader in scope than a defendant and the area within the defendant’s immediate control, an officer would have to obtain a warrant.

Example: Officer Montoya arrests Sarah Adams for driving under the influence of illegal drugs. Before taking Sarah to jail, Officer Montoya takes Sarah’s key and enters her apartment. Inside, Officer Montoya finds a number of computers. He checks their serial numbers and finds out that they have been stolen. Officer Montoya seizes the computers as evidence and adds possession of stolen property to the charges against Sarah. The computers are not admissible in evidence. The officer should have obtained a search warrant before entering Sarah’s apartment. Because Officer Montoya had no right to be inside the house in the first place, it doesn’t matter that the computers were in plain view once he was inside.

Don’t Go Back in the House

When the police arrest suspects outside their residences and have no basis for making a protective sweep, officers may try to expand the scope of a permissible search by offering to let suspects go inside to get a change of clothes or feed a pet before taking the suspect to jail. While accompanying the suspect inside the residence, officers can seize whatever may be in plain view (for instance, drugs). Thus, suspects may wisely refuse an invitation by the arresting officers to let the suspect enter the residence, and instead rely on their friends if they need clothes or pet care.

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