Search Incident to Lawful Arrest

Search Incident to a Lawful Arrest

• A warrantless search is valid if it is reasonable in scope and made incident to a lawful arrest.
• If the arrest is invalid, any search made incident to it is also invalid.
• A search incident to a lawful arrest cannot be made if the suspect is stopped for a traffic offense and given a citation but not arrested.

The Chimel Standard

• A lawful arrest justifies a warrantless contemporaneous search of the person arrested and the immediate surrounding area.
• The "wingspan" of the person arrested includes the area within their immediate control.
• Officers can conduct a "protective sweep" of adjacent areas to ensure their safety, but it must be limited to a quick and limited visual inspection.

Time Limitations (Temporal Unity)

• A search incident to a valid arrest must take place contemporaneously with the arrest to be valid.

Scope of Search

• The search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets.
• The search extends to containers "immediately associated" with the person, such as a shoulder bag or purse.
• The search incident to lawful arrest exception does not extend to an arrestee's cell phone or laptop, and a warrant is required to search digital information.

Vehicle Search Incident to Arrest

• To justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either:
  • That the arrestee is within reaching distance of the passenger compartment at the time of the search and may pose an actual and continuing threat to the officer's safety or a need to preserve evidence.
  • That it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.

Impounded Vehicle

• A legally impounded vehicle may be searched, including closed containers, as part of a routine inventory search.

Exigent Circumstances

• Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances.
• The "totality of the circumstances" test is used to determine the existence of exigent circumstances.
• Police may secure the premises for a reasonable time to enable officers to obtain a warrant when the police have reason to believe that the failure to do so could result in the destruction of evidence.

Hot Pursuit

• If the police have probable cause to believe that an individual has committed a felony and they are pursuing him to arrest him, then they have the right to enter a private building during the pursuit.
• The hot-pursuit exception is inapplicable if the suspect is suspected of a nonjailable traffic offense.

Emergency Situations

• A search without a warrant is authorized whenever there is a reasonable apprehension that the delay required in obtaining the warrant would result in the immediate danger of evidence destruction or the threatened safety of the officer or the public.

Stop and Frisk

• A "stop" is a limited and temporary intrusion on an individual's freedom of movement short of a full custodial arrest.
• A stop is justified on the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in illegal activity.
• Reasonable suspicion can be based on a flyer, a police bulletin, or an informant's tip, but only if the tip is accompanied by sufficient indicia of reliability.

Frisk

• An officer who does not have probable cause to arrest may nonetheless make a limited search of a person he has lawfully stopped, such as a pat-down of the outer clothing, if he has reasonable suspicion that the person was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others.

Terry Stop and Frisk of a Car

• Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if they have a reasonable belief that the suspect is dangerous and may gain immediate control of weapons.
• Police may order occupants out of a vehicle that they have lawfully stopped.

Limits on Time, Place, and Investigative Method

• A Terry stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop.
• The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short time.

Development of Probable Cause

• If the officer conducting the stop develops probable cause, the officer may then make an arrest and conduct a full search incident to that arrest.

Automobile Exception

• The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity.
• The police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, so long as they have probable cause to do so.

Pretextual Stop

• Police may use a pretextual stop to investigate whether a law has been violated, even if they have no reasonable suspicion, provided that they have probable cause to believe that the law for which the vehicle was stopped has been violated.

Containers within a Car

• Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for.
• If the police have probable cause to search only a particular container, they may search only that container, and not the entire car.

Plain-View Doctrine

• Items in public view may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public.
• In situations in which there is a reasonable expectation of privacy, a police officer may seize an item in plain view of the officer, even if the item was not named in the search warrant, as long as the officer is lawfully on the premises, the incriminating character of the item is immediately apparent, and the officer has lawful access to the item.

Consent Searches

• Consent can serve to eliminate the need for police to have probable cause as well as to first obtain a warrant in order to conduct a search.
• For permission to constitute consent, the permission must be given voluntarily.
• The authority of a third party to consent to a search can be an issue, depending on the circumstances.

Third-Party Consent

• When the person from whom consent is sought is not the defendant, in addition to the voluntariness of the permission, the authority of that person to consent can be an issue.
• The defendant can generally suppress evidence seized during a search of property owned or occupied by the defendant, unless the third party has an agency relationship with the defendant that gives to the third party the right to consent on behalf of the defendant, or the defendant otherwise gives the third party such rights with respect to the property that the defendant assumes the risk that the third party would allow the property to be searched.

Jointly Controlled Property

• When the property to be searched is under the joint control of the defendant and a third party, the authority of the third party to consent turns on whether the defendant is present at the time of the search.
• If the property to be searched is under the joint control of the defendant and a third party, and the defendant is not present at the time of the search, then the third party has authority to consent.
• When the property to be searched is under the joint control of the defendant and a third party, and the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search.### Burden of Proof
• The prosecution must prove that permission was freely given, and the defendant is not required to show that the permission was coerced.

Administrative Searches

• Administrative search warrants are generally required for nonconsensual fire, health, or safety inspections of residential or private commercial property.
• Probable cause requirement for administrative searches is less stringent than that for a criminal investigation.
• Evidence of an existing statutory or regulatory violation or a reasonable plan supported by a valid public interest will justify the issuance of a warrant.

Valid Administrative Searches

• Searches of people entering an airplane boarding area, as long as the passenger can prevent the search by not boarding the plane.
• Searches of businesses in highly regulated industries, such as liquor stores, gun shops, strip-mining operations, and automobile junkyards, because of urgent public interest and implied consent to warrantless searches.
• Oral statements seized by wiretaps, when matters of national security are at issue.
• Searches of students by public school officials, based on reasonable grounds, and reasonably related to the objectives of the search.
• Special needs searches, such as drug testing for railroad employees involved in an accident or student athletes during the athletic season.
• Inventory searches of items in official custody, such as impounded vehicles, to protect the owner's property, police from claims of theft, and officers from danger.
• Routine international border searches of border crossers and their belongings within the United States.
• Vehicle checkpoints and roadblocks set up to stop cars on the basis of a neutral articulable standard and designed to serve a limited purpose closely related to the problem of an automobile's inherent mobility.
• Factory searches of the entire work force to determine citizenship of workers.
• Searches of government employees' electronically recorded documents and conduct, file cabinets, and desks if justified by a reasonable suspicion of work-related misconduct or a non-investigatory, work-related need.
• Detention of a traveler whom authorities have reasonable suspicion is smuggling contraband in his stomach.
• Searches of parolees and their homes, even with no reasonable suspicion, when a parolee agrees to submit to searches by a parole officer or police officer at any time as a condition of his parole.
• Seizure of contaminated or spoiled food.
• Searches for the cause of a fire that occurs within a reasonable time after the fire is extinguished, but excluding searches for other evidence unrelated to the cause that would establish that the fire was attributable to arson.

Wiretapping

• To obtain a warrant authorizing a wiretap, officers must satisfy the following requirements:
  • The warrant must be limited to a short period of time.
  • The warrant must demonstrate probable cause that a specific crime has been or is about to be committed.
  • The warrant must name the person or persons to be wiretapped.
  • The warrant must describe with particularity the conversations that can be overheard.
  • The warrant must include provisions for the termination of the wiretap.
• Upon termination of the wiretap, the conversations that have been intercepted must be shown to the court.
• A person assumes the unreliability of those to whom she speaks and has no Fourth Amendment claim if she finds out later that the listener was wired or recording the conversation.
• A speaker who makes no attempt to keep his conversation private has no Fourth Amendment claim.
• A wiretap related to domestic security surveillance requires that a neutral and detached magistrate—not the president—make the determination that a wiretapping warrant should issue, and the wiretap must comply with the Omnibus Crime Control and Safe Streets Act.
• There is no requirement for prior authorization when a covert entry is planned to install the electronic equipment, or when a pen register is used.

Search Incident to a Lawful Arrest

• A warrantless search is valid if it is reasonable in scope and made incident to a lawful arrest.
• If the arrest is invalid, any search made incident to it is also invalid.
• A search incident to a lawful arrest cannot be made if the suspect is stopped for a traffic offense and given a citation but not arrested.

The Chimel Standard

• A lawful arrest justifies a warrantless contemporaneous search of the person arrested and the immediate surrounding area.
• The "wingspan" of the person arrested includes the area within their immediate control.
• Officers can conduct a "protective sweep" of adjacent areas to ensure their safety, but it must be limited to a quick and limited visual inspection.

Time Limitations (Temporal Unity)

• A search incident to a valid arrest must take place contemporaneously with the arrest to be valid.

Scope of Search

• The search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets.
• The search extends to containers "immediately associated" with the person, such as a shoulder bag or purse.
• The search incident to lawful arrest exception does not extend to an arrestee's cell phone or laptop, and a warrant is required to search digital information.

Vehicle Search Incident to Arrest

• To justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either:
  • That the arrestee is within reaching distance of the passenger compartment at the time of the search and may pose an actual and continuing threat to the officer's safety or a need to preserve evidence.
  • That it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.

Impounded Vehicle

• A legally impounded vehicle may be searched, including closed containers, as part of a routine inventory search.

Exigent Circumstances

• Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances.
• The "totality of the circumstances" test is used to determine the existence of exigent circumstances.
• Police may secure the premises for a reasonable time to enable officers to obtain a warrant when the police have reason to believe that the failure to do so could result in the destruction of evidence.

Hot Pursuit

• If the police have probable cause to believe that an individual has committed a felony and they are pursuing him to arrest him, then they have the right to enter a private building during the pursuit.
• The hot-pursuit exception is inapplicable if the suspect is suspected of a nonjailable traffic offense.

Emergency Situations

• A search without a warrant is authorized whenever there is a reasonable apprehension that the delay required in obtaining the warrant would result in the immediate danger of evidence destruction or the threatened safety of the officer or the public.

Stop and Frisk

• A "stop" is a limited and temporary intrusion on an individual's freedom of movement short of a full custodial arrest.
• A stop is justified on the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in illegal activity.
• Reasonable suspicion can be based on a flyer, a police bulletin, or an informant's tip, but only if the tip is accompanied by sufficient indicia of reliability.

Frisk

• An officer who does not have probable cause to arrest may nonetheless make a limited search of a person he has lawfully stopped, such as a pat-down of the outer clothing, if he has reasonable suspicion that the person was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others.

Terry Stop and Frisk of a Car

• Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if they have a reasonable belief that the suspect is dangerous and may gain immediate control of weapons.
• Police may order occupants out of a vehicle that they have lawfully stopped.

Limits on Time, Place, and Investigative Method

• A Terry stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop.
• The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short time.

Development of Probable Cause

• If the officer conducting the stop develops probable cause, the officer may then make an arrest and conduct a full search incident to that arrest.

Automobile Exception

• The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity.
• The police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, so long as they have probable cause to do so.

Pretextual Stop

• Police may use a pretextual stop to investigate whether a law has been violated, even if they have no reasonable suspicion, provided that they have probable cause to believe that the law for which the vehicle was stopped has been violated.

Containers within a Car

• Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for.
• If the police have probable cause to search only a particular container, they may search only that container, and not the entire car.

Plain-View Doctrine

• Items in public view may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public.
• In situations in which there is a reasonable expectation of privacy, a police officer may seize an item in plain view of the officer, even if the item was not named in the search warrant, as long as the officer is lawfully on the premises, the incriminating character of the item is immediately apparent, and the officer has lawful access to the item.

Consent Searches

• Consent can serve to eliminate the need for police to have probable cause as well as to first obtain a warrant in order to conduct a search.
• For permission to constitute consent, the permission must be given voluntarily.
• The authority of a third party to consent to a search can be an issue, depending on the circumstances.

Third-Party Consent

• When the person from whom consent is sought is not the defendant, in addition to the voluntariness of the permission, the authority of that person to consent can be an issue.
• The defendant can generally suppress evidence seized during a search of property owned or occupied by the defendant, unless the third party has an agency relationship with the defendant that gives to the third party the right to consent on behalf of the defendant, or the defendant otherwise gives the third party such rights with respect to the property that the defendant assumes the risk that the third party would allow the property to be searched.

Jointly Controlled Property

• When the property to be searched is under the joint control of the defendant and a third party, the authority of the third party to consent turns on whether the defendant is present at the time of the search.
• If the property to be searched is under the joint control of the defendant and a third party, and the defendant is not present at the time of the search, then the third party has authority to consent.
• When the property to be searched is under the joint control of the defendant and a third party, and the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search.### Burden of Proof
• The prosecution must prove that permission was freely given, and the defendant is not required to show that the permission was coerced.

Administrative Searches

• Administrative search warrants are generally required for nonconsensual fire, health, or safety inspections of residential or private commercial property.
• Probable cause requirement for administrative searches is less stringent than that for a criminal investigation.
• Evidence of an existing statutory or regulatory violation or a reasonable plan supported by a valid public interest will justify the issuance of a warrant.

Valid Administrative Searches

• Searches of people entering an airplane boarding area, as long as the passenger can prevent the search by not boarding the plane.
• Searches of businesses in highly regulated industries, such as liquor stores, gun shops, strip-mining operations, and automobile junkyards, because of urgent public interest and implied consent to warrantless searches.
• Oral statements seized by wiretaps, when matters of national security are at issue.
• Searches of students by public school officials, based on reasonable grounds, and reasonably related to the objectives of the search.
• Special needs searches, such as drug testing for railroad employees involved in an accident or student athletes during the athletic season.
• Inventory searches of items in official custody, such as impounded vehicles, to protect the owner's property, police from claims of theft, and officers from danger.
• Routine international border searches of border crossers and their belongings within the United States.
• Vehicle checkpoints and roadblocks set up to stop cars on the basis of a neutral articulable standard and designed to serve a limited purpose closely related to the problem of an automobile's inherent mobility.
• Factory searches of the entire work force to determine citizenship of workers.
• Searches of government employees' electronically recorded documents and conduct, file cabinets, and desks if justified by a reasonable suspicion of work-related misconduct or a non-investigatory, work-related need.
• Detention of a traveler whom authorities have reasonable suspicion is smuggling contraband in his stomach.
• Searches of parolees and their homes, even with no reasonable suspicion, when a parolee agrees to submit to searches by a parole officer or police officer at any time as a condition of his parole.
• Seizure of contaminated or spoiled food.
• Searches for the cause of a fire that occurs within a reasonable time after the fire is extinguished, but excluding searches for other evidence unrelated to the cause that would establish that the fire was attributable to arson.

Wiretapping

• To obtain a warrant authorizing a wiretap, officers must satisfy the following requirements:
  • The warrant must be limited to a short period of time.
  • The warrant must demonstrate probable cause that a specific crime has been or is about to be committed.
  • The warrant must name the person or persons to be wiretapped.
  • The warrant must describe with particularity the conversations that can be overheard.
  • The warrant must include provisions for the termination of the wiretap.
• Upon termination of the wiretap, the conversations that have been intercepted must be shown to the court.
• A person assumes the unreliability of those to whom she speaks and has no Fourth Amendment claim if she finds out later that the listener was wired or recording the conversation.
• A speaker who makes no attempt to keep his conversation private has no Fourth Amendment claim.
• A wiretap related to domestic security surveillance requires that a neutral and detached magistrate—not the president—make the determination that a wiretapping warrant should issue, and the wiretap must comply with the Omnibus Crime Control and Safe Streets Act.
• There is no requirement for prior authorization when a covert entry is planned to install the electronic equipment, or when a pen register is used.