Search incident to arrest: another look
Thomas D. Colbridge
Patrick Knowles was stopped for speeding by a police officer in Newton, Iowa. The officer issued Knowles a citation, although he had the option under Iowa law to arrest him. The officer then conducted a thorough search of Knowles’ car. He found a bag of marijuana and a “pot pipe.” Knowles was arrested and charged under Iowa’s controlled substances statutes.(1)
Prior to his trial, Knowles moved to suppress the marijuana and pot pipe as fruits of an unconstitutional search. His motion was denied by the trial court, and he was convicted. Knowles appealed. His appeal set in motion a review process culminating in arguments before the U.S. Supreme Court regarding the scope of police authority to search someone incident to arrest. The Supreme Court recently delivered its unanimous opinion on the matter.(2) This article reviews the development of federal constitutional law regarding search incident to arrest, including Iowa’s interpretation of an officer’s authority to search incident to arrest that led to the Supreme Court’s review of the issue.
SEARCH AND SEIZURE FOURTH AMENDMENT BASICS
The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures by government agents.(3) The Supreme Court has defined a search as a government infringement into a person’s reasonable expectation of privacy.(4) A reasonable expectation of privacy exists when a person actually believes that his activity will be private and that belief is reasonable; or in other words, when the person’s subjective expectation of privacy is objectively reasonable.(5)
The Fourth Amendment prohibits only unreasonable searches by the government. What makes some searches reasonable and others unreasonable? The Supreme Court’s answer is simple: any government search conducted without a search warrant is per se unreasonable, unless the government can justify its search as one judicially excepted from this warrant requirement.(6) This rule arises from the Supreme Court’s preference that the existence of probable cause to search be determined by a neutral third party, the magistrate, rather than the police officer.(7)
However, not all searches can or should be subject to this warrant requirement. Consequently, the Supreme Court has recognized some exceptions: consent searches;(8) emergency searches;(9) motor vehicle searches;(10) inventory searches;(11) and searches incident to arrest.(12) The search incident to arrest exception to the warrant requirement is the issue in the Knowles v. Iowa case. (13)
THE HISTORY OF SEARCH INCIDENT TO ARREST
American courts have long recognized a police officer’s authority to search individuals without a warrant incident to their arrest. In the 1867 case of Closson v. Morrison(14) the New Hampshire Supreme Court cited an even older Vermont case(15) for the proposition that an officer is authorized to search a person without a warrant for weapons and means of escape incident to arrest. In 1914, the U.S. Supreme Court recognized the same authority. While discussing the government’s argument in the case before it, the Court said:
“It is not an assertion of the right on the part of the government, always recognized under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases.”(16)
However, a warrantless search incident to arrest may only be conducted if the arrest itself is lawful.(17) That means that the arrest is based upon probable cause to believe the person arrested committed a crime,(18) and is accomplished without violating the Fourth Amendment. The Fourth Amendment requires, absent consent or an emergency, that police have at least an arrest warrant and probable cause to believe a subject is inside someone’s home, before they may enter it to arrest that individual,(19) The Amendment also requires a search warrant naming the arrestee as the object of the search, before they may enter a third party’s home, absent consent or an emergency, to arrest a wanted person.(20)
The right of an officer to search incident to an arrest is not limited to situations where weapons or evidence of the crime are likely to be found. In United States v. Robinson,(21) the Supreme Court made it clear that the authority to conduct the warrantless search incident to arrest does not depend on “what a court may later decide was the probability…that weapons or evidence would, in fact, be found….”(22) The Court reasoned that since a probable cause arrest is a reasonable Fourth Amendment intrusion, a search incident to that arrest “requires no additional justification.”(23)
The Scope of Search Incident to Arrest
While the authority to conduct a warrantless search incident to arrest has a long history, the issue of where the officer is permitted to search has been a matter of much debate. The officer clearly is entitled to search the body of a prisoner, as well as items such as a wallet or purse that are immediately associated with the arrestee.(24) This warrantless search of the person following an arrest was explicitly authorized in several state cases during the 19th century,(25) as well as virtually all of the U.S. Supreme Court cases dealing with the issue.(26)
An arresting officer is also authorized to conduct an area search when arresting someone. The size of this area search has changed over the years. In 1925, the Supreme Court described the area search this way:
“When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.”(27)
Shortly thereafter, the Court expanded the concept of the area “in his control” to “the place where the arrest is made….”(28) The broadest scope of this area search was expressed in Harris v. United States,(29) decided in 1947, and United States v. Rabinowitz(30) decided in 1950. In Harris, officers arrested the defendant in the living room of his four room apartment and proceeded to search the entire apartment. Rabinowitz was arrested in his one room office and arresting officers then searched the office desk, safe, and file cabinets for an hour and a half. The Supreme Court approved both searches as incident to arrest.
The expansion of the area search incident to arrest abruptly ended in 1969 with the case of Chimel v. California.(31) Chimel was arrested in his home for burglary. Incident to that arrest, officers searched his entire three-bedroom home, including the attic, garage, and small workshop. They seized evidence that was used at his trial over his objection. He was convicted and appealed. The Supreme Court decided that the officers had conducted an unconstitutional search. The Court said that the warrantless search incident to arrest should be limited to a search of the person arrested, as well as “the area into which an arrestee might reach in order to grab a weapon or evidentiary items….”(32) The Court expressly overruled the expansive definition of the “area within the control” of the arrestee used in the Harris and Rabinowitz cases, and limited the area search to wherever the arrestee “might gain possession of a weapon or destructible evidence.”(33)
In cases since Chimel, the Supreme Court has further defined this area search incident to arrest. When an officer arrests an occupant of an automobile, the interior passenger compartment of that automobile may be searched incident to arrest as well as any open or closed containers found inside.(34) In 1990, the Supreme Court expanded the area search incident to an arrest inside a building to include a search of immediately adjoining areas for people posing a threat to the arresting officers.(35)
The area within the arrestee’s immediate control is defined as of the time of arrest, not the time of the search.(36) Defendants often argue that once they have been moved from the scene of the actual arrest, police no longer have the authority to search that area since it is no longer within the arrestee’s control. The Supreme Court and federal circuit courts have rejected this argument.(37)
The Timing of Search Incident to Arrest
When must the search incident to arrest be conducted? Clearly, the search must occur incident to the arrest, but the actual timing is no precise matter. Searches occurring before formal arrest are incident to the arrest so long as probable cause to arrest existed prior to the search.(38)
The timing of the search incident to arrest varies according to what is being searched. If the officer is searching the person, clothing, or personal effects of the arrestee, the search is likely to be upheld even if done hours after the arrest.(39) This permissible time frame is not limitless, however. While the justification for the search will last for a reasonable time after the item is seized by police, there cannot be indefinite delay.(40)
The courts are not as flexible, however, when reviewing area searches of automobiles or rooms incident to arrest. Those searches must be “contemporaneous with” the arrest.(41) One court has stated that such area searches must be conducted “at about the same time as the arrest.”(42) It does not matter that the arrestee has been removed from the area so long as the search is restricted to the area within his immediate control at the time of the arrest, and events occurring after the arrest but before the search do not render the search unreasonable.(43)
The timing of a lawful search incident to arrest must be judged with an eye toward the realities of law enforcement. As the court said in United States v. Nelson:(44)
“…[police officers] need not reorder the sequence of their conduct during arrest simply to satisfy an artificial rule that would link the validity of the search to the duration of the risks. Pragmatic necessity requires that we uphold the validity and reasonableness of the search incident to arrest if the search is part of the specific law enforcement operation during which the search occurs.”
The Object of Search Incident to Arrest
What is an arresting officer permitted to look for during a search incident to arrest? Courts have long agreed that arresting officers may search the arrestee and the immediate area for weapons of any kind and for any object that could aid the arrestee’s escape.(45) Evidence of crime – any crime – is also a legitimate object of the search incident to arrest.(46) The Supreme Court has specifically rejected attempts to limit searches incident to arrest only to evidence of the crime for which the arrest was made.(47)
IOWA’S SEARCH INCIDENT TO CITATION LAW
The issue before the Supreme Court in Knowles v. Iowa(48) was Iowa’s expansion of the warrantless search incident to arrest to the warrantless search incident to a citation. Iowa has a law that permits its police officers to immediately arrest traffic violators and take them to a magistrate.(49) State law also permits Iowa officers to issue a citation in lieu of arrest if the person would be eligible for bail.(50) Iowa law also provided that the issuance of the citation in lieu of an arrest did not “affect the officer’s authority to conduct an otherwise lawful search.”(51) The Iowa Supreme Court interpreted this statutory scheme as authorization for its police officers to conduct a search, having the same scope as the search incident to arrest recognized by the federal Constitution, whenever officers have probable cause to arrest, but choose, instead of arresting the violator, to issue a citation.(52) The Iowa Supreme Court reasoned that the search incident to arrest authority is triggered not by the physical act of the arrest, but by the establishment of probable cause to make the arrest.(53) In Iowa, then, when a police officer chose to issue a citation in lieu of arrest, he was authorized to conduct a search since he had the requisite probable cause to arrest. It was this theory of the search incident to citation that the Iowa courts used to sustain the search of Knowles’ vehicle.
THE KNOWLES’ CASE
The facts in the case of Knowles v. Iowa are simple. When the police officer stopped Knowles, he had probable cause to believe Knowles had violated traffic laws. He could have arrested Knowles for that violation, but chose instead to issue a citation. The officer searched Knowles’ car based solely upon Iowa’s statutory search incident to a citation exception to the warrant requirement; he had neither consent nor probable cause to conduct the search. In arguments on the motion to suppress, Knowles argued that Iowa’s search incident to citation theory violated the Fourth Amendment of the federal Constitution, which requires that a person be arrested before a search incident to arrest may occur. The state argued that the search was justified solely by the officer’s probable cause to arrest Knowles for the traffic infraction.
In an unanimous decision, the U.S. Supreme Court agreed with Knowles. Citing United States v. Robinson,(54) the Court noted two historical rationales for the search incident to arrest – disarming the subject and preserving evidence for trial. Regarding the first rationale, officer safety, the Court believed there is less danger to an officer issuing a citation than to an officer making a custodial arrest. In the Court’s view, a person receiving a citation is less likely to be hostile than one being arrested. In addition, there is less contact between officer and citizen in the citation situation, exposing the officer to less danger.
Regarding the second rationale, preventing the destruction of evidence, the Court said that in this case there was little likelihood that the officer would have found additional evidence of the speeding offense. The state of Iowa argued that anyone who is stopped for a traffic violation may destroy evidence of other crimes, but the Supreme Court simply said the possibility that an officer would stumble onto such evidence of other crimes during a traffic stop “seems remote.”(55)
The Supreme Court ruled Iowa’s search incident to citation exception to the Fourth Amendment unconstitutional. It concluded that the search incident to arrest exception to the Fourth Amendment is a bright-line rule, justified only by a lawful, full custodial arrest, and based upon a concern for officer safety and for the loss of evidence. It refused Iowa’s invitation to extend the bright-line rule to a situation where, in its opinion, neither concern exists.
THE VEHICLE EXCEPTION UNAFFECTED BY KNOWLES
The Knowles opinion had no impact upon the long recognized vehicle exception to the Fourth Amendment warrant requirement. The vehicle exception permits an officer to search a motor vehicle without a search warrant when he has probable cause to believe evidence or contraband will be found inside.(56) The scope of this warrantless search is the same as a search warrant would authorize.(57)
The parties in the Knowles case all agreed that the officer who conducted the search had no probable cause to believe there was evidence or contraband in Knowles’ car, and that the officer was relying entirely upon statutory authorization to conduct the search.(58) Consequently, the motor vehicle exception was never an issue before any court during the life of this case. The motor vehicle exception is alive and well in American jurisprudence.
The Supreme Court has recognized a police officer’s authority to conduct a warrantless search incident to a lawful custodial arrest. The scope of the search includes the person of the arrestee, personal items in his possession, the area into which the arrestee could reach at the time of arrest to retrieve a weapon, any means of escape, or destructible evidence, as well as a search of immediately adjoining areas for people posing a threat. The timing of the search of the person and personal items is fairly flexible; the area searches should be contemporaneous with the arrest. The objects of the search incident to arrest are weapons, any means of escape, and evidence of any crime the arrestee could destroy. This authority is predicated upon the dual concerns of officer safety and preservation of evidence for trial.
In Knowles v. Iowa, the Supreme Court emphasized that the warrantless search incident to arrest is triggered only by a lawful custodial arrest. Mere probable cause to arrest, or the citation process alone, are not sufficient to justify the search. This decision is consistent with the Court’s long-held position that any police search should be conducted with a warrant, authorized by a neutral and detached magistrate, unless the officer can justify the search under a recognized exception to the rule.(59) Because the Supreme Court favors the use of search warrants by police officers, the justices are hesitant to discourage their use by creating new exceptions to the rule or expanding exceptions already recognized.
1 He was charged with violating Iowa Code section 124.401(3)(1995): possession of a Schedule I Controlled Substance (marijuana); and section 124.402(1)(e): keeping a controlled substance in an automobile.
2 Knowles v. Iowa, 119 S. Ct. 484 (1998); 1998 WL840933 (U.S. Iowa).
3 U.S. Constitution Amendment IV reads: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”
4 Katz v. United States, 389 U.S. 347 (1967).
5 Id. at 361 (J. Harlan, concurring).
6 Id. at 357.
7 Id. at 356.
8 Schneckloth v. Bustmonte, 412 U.S. 218 (1973); Ohio v. Robinette, 117 S. Ct. 417 (1996).
9 Schmerber v. California, 384 U.S. 757 (1966); Cupp v. Murphy, 412 U.S. 291 (1973).
10 Carroll v. U.S., 267 U.S. 132 (1925); California v. Acevedo, 111 S. Ct. 1982 (1991).
11 South Dakota v. Opperman, 428 U.S. 364 (1976); Florida v. Wells, 495 U.S. 1 (1990).
12 United States v. Robinson, 414 U.S. 218 (1973).
13 Supra note 2.
14 47 N.H. 482 (1867).
15 Spalding v. Preston, 21 Vt. 9 (1848).
16 Weeks v. United States’, 232 U.S. 383, 392 (1914).
17 United States v. Robinson, supra note 12; United States v. Anchondo, 156 F.3rd 1043 (10th Cir. 1998).
18 Henry v. United States, 361 U.S. 98 (1959).
19 Payton v. New York, 445 U.S. 573 (1980).
20 Steagald v. United States, 451 U.S. 204 (1981).
21 United States v. Robinson, supra note 12.
22 Id. at 235.
24 United States v. Passaro, 624 F.2d 938 (9th Cir. 1980), cert. denied 449 U.S. 1113 (1980); Curd v. City of Judsonia, Ark., 141 F.3d 839 (8th Cir. 1998).
25 Supra notes 14 and 15.
26 See, e.g., Weeks v. United States, supra note 17; Carroll v. United States, 267 U.S. 132 (1925); Chimel v. California, 395 U.S. 752 (1969); United States v. Robinson, 414 U.S. 218 (1973); Maryland v. Buie, 494 U.S. 325 (1990).
27 Carroll v. United States, 267 U.S. 132, 158 (1925).
28 Agnello v. United States, 269 U.S. 20 (1925); Matron v. United States, 275 U.S. 192 (1927).
29 331 U.S. 145 (1947).
30 339 U.S. 56 (1950).
31 395 U.S. 752 (1969).
32 Id. at 763.
33 Id. This area search includes open, unlocked containers found within the area that could hold weapons, evidence, or means of escape: United States v. Han, 74 F.3d 537 (4th Cir. 1996), cert. denied 517 U.S. 1239 (1996); United States v. Hudson, 100 F.3d 1409 (9th Cir. 1996), cert. denied 118 S. Ct. 353 (1997). Locked containers are likely not included in the rationale of the search incident to arrest, but the Supreme Court has not resolved the issue. Officers should consult their Legal Advisors.
34 New York v. Belton, 453 U.S. 950 (1981). The Supreme Court has not resolved the issue of whether or not locked containers may be opened incident to arrest. Officers should consult with their legal advisors regarding this issue.
35 Maryland v. Buie, 494 U.S. 325 (1990).
36 In Re Sealed Case, 153 F.3d 759 (D.C. Cir. 1998).
37 New York v. Belton, supra note 34; United States v. Hudson, supra note 33; United States v. Abdul-Saboor, 85 F.3d 664 (D.C. Cir. 1996).
38 Rawlings v. Kentucky, 448 U.S. 98 (1990); United States v. Bizier, 111 F.3d 214 (1st Cir. 1997); United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998).
39 United States v. Edwards, 415 U.S. 800 (1974).
40 United States v. Chadwick, 433 U.S. 1 (1977); United States v. Nelson, 102 F.3d 1344 (4th Cir. 1996), cert denied 117 S. Ct. 1567 (1997).
41 United States v. Belton, supra note 34; United States v. Abdul-Saboor, supra note 37.
42 United States v. Hudson, supra note 33, quoting United States v. Turner, 926 F.2d 883 (9th Cir. 1991), cert. denied 502 U.S. 830 (1991).
44 Supra note 40, at page 1347.
45 See Closson v. Morison, supra note 14; United States v. Robinson, supra note 12.
46 United States v. Robinson, supra note 12.
48 Supra note 2.
49 Iowa Code Annotated, Section 321.485 (1)(a)(West Supp. 1997).
50 Iowa Code Annotated, Section 805.1(1)(West Supp. 1997).
51 Iowa Code Annotated, Section 805.4(West Supp. 1997).
52 State v. Becker, 458 N.W.2d 604 (IA 1990); State v. Meyer, 543 N.W.2d 876 (IA 1996).
53 State v. Doran, 563 N.W.2d 620 (IA 1997).
54 Supra note 12.
55 Supra note 2.
56 Carroll v. United States, 267 U.S. 132 (1925); United States v. Patterson, 140 F.3d 767 (8th Cir. 1998), cert. denied 119 S. Ct. 245 (1998).
57 United States v. Ross, 456 U.S. 789 (1982); California v. Acevedo, 111 S. Ct. 1982 (1991).
58 Supra note 2.
59 Katz v. United States, supra note 4.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
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