Police may search the person arrested and the area within that person’s immediate control. Immediate control is interpreted broadly to include any place a suspect may lunge to obtain a weapon. If the alleged crime is particularly violent, or if the police have reason to believe other armed suspects may be in the residence, the police may do a protective sweep to search any place such accomplices may be hiding. Also, while they are making a lawful arrest or protective sweep, the police may typically search and seize anything that is in plain view and appears to be related to criminal activity.
Police officers can make protective sweeps following an arrest (Maryland v. Buie, U.S. Sup. Ct. 1990). When making a protective sweep, police officers can walk through a residence and make a cursory visual inspection of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can legally seize contraband or evidence of crime that is in plain view.
Example: Police officers have warrants to arrest Fox and Mulder for armed bank robbery. Fox and Mulder live together in a house. Officers Spock and Kirk stake out the house and arrest Fox coming up the driveway. With Fox in custody, Officer Spock goes into the house to conduct a protective sweep. Spock goes into a bedroom, lifts up a mattress and seizes a gun hidden between the mattress and the box spring. Witnesses later identify the gun as the one used in the bank robbery. Spock did not lawfully seize the gun. Because Fox and Mulder lived together, Fox was arrested outside the house, and they were suspected of committing a violent crime together, Spock probably had the right to make a protective sweep to look for Mulder. However, although Spock had a right to look under the bed, Spock had no right to lift up the mattress because nothing suggested that Mulder might be hiding between the mattress and box spring. After making sure that Mulder wasn’t in the house, the officers should have secured the house and gotten a search warrant.
Police sometimes search not only the arrested person, but guests who are also present. Whether such a search is legal depends on why the guests are there. If they are there for purely social reasons or to spend the night, they are probably protected against unreasonable searches and seizures to the same extent as the homeowner or tenant. However, if the guests are there for a brief commercial transaction or an illegal purpose and are not staying overnight, then they do not have the same privacy rights as social overnight guests and may not be able to successfully challenge a police search that took place in their host’s home (Minnesota v. Carter, U.S. Sup. Ct. 1998).
Example: Mark hosts a weekly poker game at his apartment. One night the game included his neighbor Bobby. After a neighbor complained about a strange smell coming from Mark’s apartment, the police arrived and, although they didn’t have a warrant, searched the premises. In a cabinet in the bathroom, they found a baggie of illegal drugs belonging to Bobby. Bobby is arrested and charged with possession of illegal drugs. Bobby cannot exclude the drugs from evidence. As a temporary guest, Bobby has no privacy right in Mark’s apartment.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.