Law Officer Volume 3 Issue 4 Last month's article, the first in a series on basic criminal investigation principles, examined probable cause the essential justification for every police arrest, search and seizure. The article addressed the key requirement that an officer s actions remain reasonable given the totality of circumstances known to the officer prior to taking action.
Determining whether an officer's actions were, in fact, reasonable under the totality of circumstances has a long history in American courts and is grounded by the Fourth Amendment prohibiting unreasonable searches and seizures by the government. Seven limited exceptions specify when police may legally search a person or place without first obtaining a warrant signed by an impartial judge or magistrate. This article deals with one of those exceptions: search incident to a lawful arrest.
Search Incident to Lawful Arrest
Police may search a person for weapons and evidence without a warrant whenever that person is lawfully arrested for a crime. In a 1973 U.S. Supreme Court decision (United States v. Robinson, U.S. 218, 1973), the Court stated, It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of the lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under the amendment. The arrest must be valid under law, the officer must be able to specifically articulate probable cause that the person committed a crime and there must have been intent by the officer to arrest prior to the search of the person. In other words, an officer can t search, find narcotics and then arrest for narcotics possession based on that search.
The search of a person under arrest is subject to the areas under that person s immediate control (Chimel v. California, 1969). How far away from the person placed under arrest can the search extend? There is no common definition of how far from the suspect the search extends. The courts have consistently ruled the scope of the search is dependent on the totality of circumstances present in each particular case. Remember, the basis to this exception to the Fourth Amendment is not a search for incriminating evidence, but the safety of the officer(s), suspect and any third person who may be present.
Example: Officers observe a person commit a crime (a man punches another man in the mouth) and place him under arrest. Just prior to the crime, the officers see the suspect take off a coat and place it on the hood of an adjacent car. No one else is near the coat. Is the coat under the suspect s immediate control? Yes. Can the officers search the coat pockets prior to handing it to the suspect after he has been arrested? Yes. If they find marijuana in the coat, can the officers place an additional charge relative to the contraband? Yes they arrested the man, and the subsequent or incidental search uncovered the marijuana.
A more expansive ruling was handed down by the Supreme Court in Maryland v. Buie (1990) in which the Court ruled a protective sweep is constitutional. A protective sweep entails a quick and limited search of a premises, incident to a lawful arrest and conducted to protect the safety of police officers or others. A cursory visual inspection of those places in which a person may be hiding. The two-part rule in Maryland vs. Buie states police must possess particular facts leading a reasonably prudent officer to believe an individual who poses a danger remains in the area to be swept. A protective sweep of the entire house must be based on reasonable suspicion. However, the second part of the Court s ruling states that incident to a lawful arrest, the officers could, without further probable cause or reasonable suspicion, search closets and other spaces adjoining the place of arrest from which an offender could mount an immediate attack.
Note: The protective sweep is for officer safety, and the purpose is to locate potential attackers. This ruling does not permit a search of drawers, cabinets or other areas in which a person could not hide. Further, because the search is solely for the purpose of locating people, stopping and going through papers or picking up an item to observe a serial number is not permitted.
War Story
When I was the commander of the Vice and Narcotics division in Hartford, Conn., we had information from a confidential, reliable informant that a major distributor of narcotics had purchased more than two kilos of heroin in New York City. The suspect was to arrive on a Greyhound bus at the main terminal on Union Place in Hartford carrying the drugs in a gym bag.
It should have been easy because we already had an arrest warrant for the suspect from a previous case, and he was well known to us. We were using undercover cars from rent-a-wreck back then, and four of us jammed ourselves into a BMW and set up surveillance across the street from the bus terminal. It was a bitterly cold day, and when the bus arrived, the rent-a-wreck car wouldn t start! By the time we all climbed out and made our way to the bus station, we couldn t find the suspect. We finally located him a block away, and then the usual foot chase ensued.
When we eventually caught him, we placed him under arrest on the warrant, and in a search subsequent to his arrest found nothing but a single key to a locker at the bus station. The key was clearly marked with the name of the bus station and locker number, and we figured this was where the gym bag with the two kilos of dope was. Our original thinking was to go to the bus station and open the locker under the premise the gym bag (if it was there) was under the suspect s control because he had the only key to the locker even though we d captured him several city blocks from the locker. However, after heatedly discussing the pros and cons of searching the locker without a search warrant based on the probable cause of the informant s information and finding the locker key in a search subsequent to the suspect s arrest, we decided to obtain a search warrant for the locker. When we returned to the bus station later with the search warrant, we found the gym bag in the locker with the dope inside.
In discussing this case with several prosecutors, they agreed that had we not obtained a search warrant, the court would probably have found there was no exigent circumstance present and that our premise that the suspect s possession of the locker key meant the heroin was under his control was a pretty big stretch of the Court s intent in Chimel v. California and subsequent cases. Had we not obtained a search-and-seizure warrant, the evidence against the suspect would most likely have been excluded.
Bottom Line
These investigative procedures are basic tools of our trade. Each of us must master their application. Readers should note that the cases quoted in this article are U.S. Supreme Court cases. Individual state statutes and/or department polices and procedures may further limit the scope of a search incidental to arrest. Make sure you have a clear understanding of your individual state statutes and departmental policies.