Download ppt - Investigative Constitutional Law Charles L. Feer, JD, MPA Bakersfield College Department of Criminal Justice Investigative Constitutional Law

Investigative Constitutional Law

Charles L. Feer, JD, MPACharles L. Feer, JD, MPABakersfield College Bakersfield College

Department of Criminal Justice Department of Criminal Justice


Search Incident to Arrest

Learning OutcomesLearning Outcomes Rationale for allowing a search when someone is arrested (without a Rationale for allowing a search when someone is arrested (without a

warrant).warrant). Three requirements of the arrest in order to justify an incidental Three requirements of the arrest in order to justify an incidental

search.search. The meaning of “incident to.” Where and when the search must be The meaning of “incident to.” Where and when the search must be

conducted.conducted. Scope of search, including the person and effects, places within a Scope of search, including the person and effects, places within a

vehicle and portions of a residence that may be searched.vehicle and portions of a residence that may be searched. Consequential searches, including booking searches and inventories, Consequential searches, including booking searches and inventories,

and the requirements for each.and the requirements for each. Taking personal exemplars, including fingerprints, photographs, Taking personal exemplars, including fingerprints, photographs,

handwriting and voice samples, blood samples and DNA specimens.handwriting and voice samples, blood samples and DNA specimens.



Learning Outcomes Learning Outcomes (Continued)(Continued) The special rules relating to strip searches and body cavity The special rules relating to strip searches and body cavity

searches.searches. Consent as an independent source for searches incident to arrest.Consent as an independent source for searches incident to arrest.


Search Incident to Arrest Rationale For Warrantless SearchRationale For Warrantless Search

““It is well settled that a search incident to a lawful arrest is a It is well settled that a search incident to a lawful arrest is a traditional traditional exception exception to the warrant requirement of the to the warrant requirement of the Fourth Amendment” (Fourth Amendment” (US v. RobinsonUS v. Robinson).).

These decisions of the Supreme Court have identified These decisions of the Supreme Court have identified three three reasonsreasons for allowing a search incident to arrest: for allowing a search incident to arrest:

1) the discovery and preservation of 1) the discovery and preservation of evidence of the evidence of the crime crime for which the person has been arrested; for which the person has been arrested;

2) removal of 2) removal of weapons weapons that could be used against the that could be used against the arresting officer; and arresting officer; and

3) finding and removing the 3) finding and removing the means of escapemeans of escape. If the . If the requirements for conducting a search incident to arrest requirements for conducting a search incident to arrest are met, therefore, a warrantless search can be conducted, are met, therefore, a warrantless search can be conducted, within the specific scope defined for the place where the within the specific scope defined for the place where the arrest occurs.arrest occurs.


Search Incident to Arrest Three RequirementsThree Requirements

Three conditions must be satisfied to justify a search Three conditions must be satisfied to justify a search incident to arrest. If any one of these conditions is not met, a incident to arrest. If any one of these conditions is not met, a warrantless search cannot be justified under this exception warrantless search cannot be justified under this exception and will be unlawful, unless some other exception applies.and will be unlawful, unless some other exception applies.

1) 1) Lawful ArrestLawful Arrest: a search incident to arrest presupposes : a search incident to arrest presupposes a lawful arrest. the lawfulness of an arrest is objectively a lawful arrest. the lawfulness of an arrest is objectively determined, without regard to the subsequent history of determined, without regard to the subsequent history of the case.the case.

2) 2) Custodial ArrestCustodial Arrest: In situations where a law : In situations where a law enforcement officer has the option of making a full enforcement officer has the option of making a full custodial arrest or custodial arrest or releasing the person with a warning or releasing the person with a warning or citationcitation, , there can be no search incident to arrest unless there can be no search incident to arrest unless there is a custodial arrestthere is a custodial arrest. .



Three Requirements Three Requirements (Continued)(Continued) 3) 3) Contemporaneous SearchContemporaneous Search: a search incident to arrest must : a search incident to arrest must

be substantially contemporaneous with the arrest, meaning be substantially contemporaneous with the arrest, meaning at at or near the time and place of arrestor near the time and place of arrest. However, there is no . However, there is no constitutional requirement that the arrest occur before the constitutional requirement that the arrest occur before the search - only that there be probable cause to arrest before the search - only that there be probable cause to arrest before the search is made. Once an officer has PC to arrest, s/he search is made. Once an officer has PC to arrest, s/he may may arrest and then search, or search and then arrest.arrest and then search, or search and then arrest.


Search Incident to Arrest Scope of SearchScope of Search

When the justification for a search is that it is incident to When the justification for a search is that it is incident to arrest, the scope will always include arrest, the scope will always include the person the person of the of the arrestee and whatever s/he is arrestee and whatever s/he is wearing and carryingwearing and carrying. Beyond . Beyond this basic scope, a search may extend to other this basic scope, a search may extend to other areas within areas within the arrestee’s immediate controlthe arrestee’s immediate control, which will vary, depending , which will vary, depending on where the arrest occurs.on where the arrest occurs.

Person and Effects: The scope of search incident to arrest Person and Effects: The scope of search incident to arrest includes a thorough search of the person and effects of the includes a thorough search of the person and effects of the arrestee.arrestee.

Vehicle:Vehicle: If the person arrested was the recent occupant of a If the person arrested was the recent occupant of a vehicle, the scope of search vehicle, the scope of search includes the passenger includes the passenger compartment and all receptacles and containers in itcompartment and all receptacles and containers in it, but , but not not the trunk.the trunk. The lawful custodial arrest of a passenger also The lawful custodial arrest of a passenger also permits search of the vehicle.permits search of the vehicle.


Search Incident to Arrest Scope of SearchScope of Search (Continued) (Continued)

ResidenceResidence Lawfully Entered: When making an arrest inside private Lawfully Entered: When making an arrest inside private premises, the scope of an incidental search does not extend to premises, the scope of an incidental search does not extend to areas beyond the areas beyond the immediate control of the arrestee (arm’s reach)immediate control of the arrestee (arm’s reach). . Combining the holdings of Combining the holdings of Chimel Chimel and and BuieBuie, the scope of , the scope of permissible search incident to arrest within a residence or other permissible search incident to arrest within a residence or other private premises includes the area under the arrestee’s immediate private premises includes the area under the arrestee’s immediate control, as well as a peek into adjoining closets, rooms and “other control, as well as a peek into adjoining closets, rooms and “other spaces,” but not a search of any other places.spaces,” but not a search of any other places.

Incident to Outdoors Arrest: an outdoors arrest does not allow a Incident to Outdoors Arrest: an outdoors arrest does not allow a non-consensual entry into or search of the arrestee’s home, non-consensual entry into or search of the arrestee’s home, incident to arrest.incident to arrest.


Search Incident to Arrest Searches Consequent to ArrestSearches Consequent to Arrest

Although a search incident to arrest must occur Although a search incident to arrest must occur contemporaneously, there are some searches that contemporaneously, there are some searches that typically follow an arrest that may be made later, at typically follow an arrest that may be made later, at another place. These include a booking search and an another place. These include a booking search and an inventory of impounded vehicles.inventory of impounded vehicles.

Booking SearchBooking Search: Although a thorough search of an : Although a thorough search of an arrestee and whatever s/he is carrying may be arrestee and whatever s/he is carrying may be accomplished contemporaneously with arrest, it may accomplished contemporaneously with arrest, it may also be accomplished during a standard booking also be accomplished during a standard booking search.search.


Search Incident to Arrest Searches Consequent to Arrest Searches Consequent to Arrest (Continued)(Continued)

Inventory of Impounded VehiclesInventory of Impounded Vehicles: An inventory of a : An inventory of a lawfully impounded vehicle pursuant to standard lawfully impounded vehicle pursuant to standard policy or practice is a reasonable search.policy or practice is a reasonable search.

• Scope of Inventory: The scope of an inventory Scope of Inventory: The scope of an inventory search is defined by the policy under which it is search is defined by the policy under which it is conducted.conducted.

• Standardized Policy: An inventory cannot be Standardized Policy: An inventory cannot be conducted unless the conducted unless the agency has a policy agency has a policy defining the scope of search.defining the scope of search.



Taking Personal ExemplarsTaking Personal Exemplars Once a person has been lawfully arrested and is in custody, Once a person has been lawfully arrested and is in custody,

investigators are permitted to require the person to submit to investigators are permitted to require the person to submit to certain procedures that do not involve compelling the person to certain procedures that do not involve compelling the person to make any statement admitting guilt, but may nevertheless provide make any statement admitting guilt, but may nevertheless provide evidence connecting the person to the crime under investigation.evidence connecting the person to the crime under investigation.

Mug ShotsMug Shots: Assuming a person is lawfully arrested, it is not : Assuming a person is lawfully arrested, it is not unreasonable to take the person’s photograph.unreasonable to take the person’s photograph.

FingerprintsFingerprints: Assuming a person is lawfully arrested, it is not : Assuming a person is lawfully arrested, it is not unreasonable to take the person’s fingerprints.unreasonable to take the person’s fingerprints.



Taking Personal Exemplars Taking Personal Exemplars (Continued)(Continued) HandwritingHandwriting: Assuming a person is lawfully arrested, it is not : Assuming a person is lawfully arrested, it is not

unreasonable to compel an exemplar of the person’s handwriting.unreasonable to compel an exemplar of the person’s handwriting. VoiceVoice: Like a man’s facial characteristics or handwriting, his voice : Like a man’s facial characteristics or handwriting, his voice

is repeatedly produced for others to hear. assuming a person is is repeatedly produced for others to hear. assuming a person is lawfully arrested, it is not unreasonable to compel an exemplar of lawfully arrested, it is not unreasonable to compel an exemplar of the person’s voice.the person’s voice.

EvanescentEvanescent Evidence: (vanishing; fading away) Some evidence is Evidence: (vanishing; fading away) Some evidence is constantly undergoing change or dissipation because of biological constantly undergoing change or dissipation because of biological break- down or other processes. A sample of such evidence must break- down or other processes. A sample of such evidence must sometimes be taken immediately, to preserve its evidentiary value.sometimes be taken immediately, to preserve its evidentiary value.



Taking Personal Exemplars Taking Personal Exemplars (Continued)(Continued) DNA SamplingDNA Sampling: The US Supreme Court has not ruled on a Fourth : The US Supreme Court has not ruled on a Fourth

Amendment challenge to the extraction of a DNA sample from Amendment challenge to the extraction of a DNA sample from those lawfully arrested, but did uphold a Connecticut law on due those lawfully arrested, but did uphold a Connecticut law on due process grounds where one requirement of registered sex process grounds where one requirement of registered sex offenders was that they provide a DNA sample. offenders was that they provide a DNA sample.

Calif. Department of Corrections and Rehabilitation has a DNA Calif. Department of Corrections and Rehabilitation has a DNA Sample requirement for parole release. Sample requirement for parole release.


Search Incident to Arrest Body Cavity and Invasive IntrusionsBody Cavity and Invasive Intrusions

In most cases, searches and seizures are justified by In most cases, searches and seizures are justified by balancing the nature of the intrusion on Fourth balancing the nature of the intrusion on Fourth Amendment rights against the governmental interest Amendment rights against the governmental interest served by the search or seizureserved by the search or seizure..

Intrusions greater than blood draws have generally been Intrusions greater than blood draws have generally been precluded.precluded.

The court has not disapproved of the practice in jails and prisons The court has not disapproved of the practice in jails and prisons of subjecting inmates to strip searches and visual body cavity of subjecting inmates to strip searches and visual body cavity searches when the circumstances of the arrest or custodial incident searches when the circumstances of the arrest or custodial incident supports a suspicion that the person may have drugs or weapons supports a suspicion that the person may have drugs or weapons concealed on or in his or her body. concealed on or in his or her body.


Search Incident to Arrest Consent as an Independent SourceConsent as an Independent Source

As with searches under warrants and many of the other exceptions, As with searches under warrants and many of the other exceptions, it is prudent practice for officers intent on conducting a search it is prudent practice for officers intent on conducting a search incident to arrest to incident to arrest to also seek consentalso seek consent..

And when a backed-up search yields contraband or the fruits, And when a backed-up search yields contraband or the fruits, instrumentalities or evidence of a crime, instrumentalities or evidence of a crime, the arrest report should the arrest report should detail all grounds for the searchdetail all grounds for the search, under a warrant or all , under a warrant or all applicable exceptions, to allow the prosecutor, defense attorney applicable exceptions, to allow the prosecutor, defense attorney and judge to assess admissibility issues under all of the and judge to assess admissibility issues under all of the justifications that were present. justifications that were present.
