Search and Seizure - Incident to Arrest

Riley v. California, 134 S. Ct. 2473 (2014)

The Supreme Court decided that a cell phone may not be searched incident to arrest. Neither officer safety, nor the need to preserve evidence justifies the need to dispense with the warrant requirement.

Thornton v. United States, 541 U.S. 615 (2004)

In New York v. Belton, 453 U.S. 454 (1981), the Court held that the police may conduct a search incident to arrest of the interior of a car whenever an occupant is arrested. In this case, the Court concluded that the same rationale allows the police to search a vehicle, even if the occupant is arrested by the police after exiting the car and is not within reach of the interior of the vehicle.

Arizona v. Gant, 129 S. Ct. 1710 (2009)

Five years after Thornton was decided, the Supreme Court followed up on the promise of the five Justices in Thornton who expressed displeasure with the scope of Belton, in the case of Arizona v. Gant, 129 S. Ct. 1710 (2009). Though stating that Belton was not expressly overruled, the Court determined that Belton required significant reigning in and held that a search incident to arrest, following an automobile stop, is only permissible “if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.” Thus, if the arrestee is in the back of the patrol car and restrained, the police may not automatically search the passenger compartment of the vehicle, simply because the defendant was arrested in, or immediately after exiting, the vehicle. What matters is the accessibility of the vehicle at the time of the search, not at the time of the arrest. A search may occur, however, even if the arrestee is not within reach of the car if there is “reason to believe” (i.e., not necessarily probable cause) that evidence of the crime for which the defendant is arrested is in the vehicle. In Gant, the defendant was arrested after he exited his vehicle in his driveway. He was arrested based on a warrant for a previous offense. There was no reason to believe that there was any evidence in the vehicle relating to the offense listed in the warrant. He was arrested and handcuffed in the back of the patrol car when the search of his vehicle occurred. The Court held that Belton – as heretofore construed – did not authorize this search and the evidence should have been suppressed.

Smith v. Ohio, 494 U.S. 541 (1990)

In a per curium opinion, the Supreme Court holds that evidence found during a purported search incident to arrest cannot be relied upon to justify the arrest. The Supreme Court holds, “Justifying the arrest by the search and at the same time the search by arrest just will not do.” It is axiomatic that an incident search may not precede an arrest and serve as part of its justification.

Knowles v. Iowa, 119 S.Ct. 484 (1998)

When the police make a traffic stop and issue a citation and do not make a custodial arrest, the police may not thereafter conduct a search of the vehicle on the theory that it is a search incident to arrest.

United States v. Camou, 773 F.3d 932 (9th Cir. 2014)

The defendenat was stopped in his vehicle and charged with smuggling undocumented aliens. He was brought to the police station where he and one of his passengers were questioned. The passenger admitted that they regularly were engaged in smuggling activity. The police seized the defendant’s cell phone and listed it on a property report as seized evidence. Approximately 90 minutes later, the police searched the contents of the phone. The Ninth Circuit held that this was a not proper search incident to arrest search, not a proper exigent circumstances search and not a proper “automobile exception” search. In addition, the court rejected the inevitable discovery doctrine and the good faith exception to the exclusionary rule as reasons not to apply the exclusionary rule.

United States v. McCraney, 674 F.3d 614 (6th Cir. 2012)

The limitations on a search incident to arrest announced in Gant are not limited to situations where the defendant is handcuffed in the rear of a patrol car. Here, the defendants were outside the car, surrounded by several law enforcement officers. A search of the car was not a valid search incident to arrest.

United States v. Camacho, 661 F.3d 718 (1st Cir. 2011)

The police went to the scene of a street brawl and saw two people walking on the sidewalk. Suspicious that they had been involved in the brawl, the police pulled their car in front of the defendant, stopping him and then frisked the defendant and felt a gun. The defendant pushed the officer’s hand away, after which the defendant was arrested. The First Circuit concluded that the initial encounter was a seizure; there was no lawful basis for the seizure (i.e., there was no articulable suspicion); the frisk was not proper; the discovery of the weapon was not the result of a valid search incident to arrest.

United States v. Edwards, 666 F.3d 877 (4th Cir. 2011)

The police arrested the defendant and then unbuckled his pants, pulled out his underwear and when they saw a baggie tied around his penis, they used a knife to remove it. The Fourth Circuit held that this was an unreasonable strip search and search incident to arrest, that violated the defendant’s rights under the Fourth Amendment.

United States v. Curtis, 635 F.3d 704 (5th Cir. 2011)

The Fifth Circuit concludes that the police may search a cell phone, including text messages when a defendant is arrested in possession of the cell phone. The appellate court reviews the precedent in numerous circuits before reaching this decision.

United States v. Gross, 662 F.3d 393 (6th Cir. 2011)

The police stopped an automobile in which the defendant was a passenger. The stop was found to be improper, because there was no articulable suspicion supporting the stop. During the course of the stop, the police learned that there was an arrest warrant for the defendant. The question in the Sixth Circuit was whether the existence of an arrest warrant and the evidence found during a search incident to the arrest was the fruit of the illegal stop, and did the exclusionary rule bar the introduction of the evidence. The Sixth Circuit held that the exclusionary rule did apply and the evidence would be suppressed. Contrary authority in the Seventh Circuit in United States v. Green, 111 F.3d 515 (7th Cir. 1997), was rejected by the Sixth Circuit.

United States v. Maddox, 614 F.3d 1046 (9th Cir. 2010)

If a defendant has been arrested, handcuffed and placed in a police car, the police may not then search a container that was taken from the defendant’s possession under the search incident to arrest theory. In this case, the defendant’s key chain was taken from him and after the defendant was arrested and secured, the police opened a small vial that was attached to the chain. While the key chain was in the defendant’s possession at the time of the defendant’s arrest, it was not within his reach after he was arrested and detained in the police car and at that point a search incident to arrest of the key chain was not valid.

United States v. Caseres, 533 F.3d 1064 (9th Cir. 2008)

The defendant was driving his car and was seen by the police, who thought the car had improper window tinting and that the defendant had not properly signaled a turn. The police followed the defendant, but did not activate their emergency lights. The defendant parked his car and started walking towards his house. The police parked behind the defendant’s car and then walked to catch up with the defendant who was finally approached on the front lawn of a neighbor. The police told the defendant to stop; he fled. After catching him, the police went back to the car and searched it. This was not proper. This was not a proper inventory search or a proper search incident to arrest.

United States v. Hudson, 405 F.3d 425 (6th Cir. 2005)

The police had an arrest warrant for the defendant, but could not find him. The police made a warrantless, illegal stop of a car being driven by the defendant’s girlfriend and discovered that the defendant was in the car. He was searched. The Sixth Circuit held that this was an illegal search. Because the stop was illegal, the search of the defendant was the fruit of that illegality, despite the fact that the police had a warrant for the defendant.

United States v. Patzer, 277 F.3d 1080 (9th Cir. 2002)

The police lacked probable cause to arrest the defendant for DUI. The officer may have believed that the defendant had ingested marijuana, but there was no information suggesting that this impaired his ability to drive which is an element of the DUI offense. Absent probable cause to arrest the defendant, the ensuing search of his automobile could not be justified as a search incident to arrest. Similarly, the defendant’s consent was tainted by the unlawful arrest. Finally, the court ordered suppressed the statements made by the defendant that were the product of the illegal arrest.

United States v. Myers, 308 F.3d 251 (3rd Cir. 2002)

The police were called to an apartment regarding a disturbance. When the police arrived, a young girl was on the front step and she told the officer that her mother and her boyfriend were inside fighting and the boyfriend had a gun. The officer entered the apartment and after finding the defendant behind a door arrested him. The officer observed the defendant throw a bag on the ground. The defendant was handcuffed and the woman was brought downstairs. The officer then went back upstairs and opened the bag, finding a gun. The Third Circuit held that there was no probable cause to arrest the defendant, and even if there had been probable cause, the search of the bag was not incident to the arrest and was therefore unlawful. Regarding probable cause, at most there was some indication that there had been a simple assault, but that had not occurred in the officer’s presence and thus he could not arrest the defendant for that offense. Regarding the search, with the defendant handcuffed and immobilized, there was no need to search the bag.

United States v. Johnson, 16 F.3d 69 (5th Cir. 1994), aff’d on rehearing, 18 F.3d 293 (5th Cir. 1994)

The defendant was in his office which was approximately ten feet by twelve feet. Law enforcement officers served him with an arrest warrant. Approximately eight feet from where he was sitting was the defendant’s briefcase. The officer opened the briefcase claiming that it was a search incident to the arrest. The Fifth Circuit holds that the briefcase was not within the reach of the defendant at the time of the arrest; therefore it was not a valid search incident to arrest. The defendant was never handcuffed and the officer conceded that he did not fear that the defendant had a gun, or that he would destroy evidence. His search of the briefcase was “just good police work.” Well, not really. The Fifth Circuit reversed based on this “police work.”

United States v. Strahan, 984 F.2d 155 (6th Cir. 1993)

The defendant was arrested approximately thirty feet away from his car. The police searched his glove compartment. This was not a proper search incident to arrest. Even though the police observed the defendant exit his vehicle shortly before his arrest, the glove compartment was not accessible to him and thus could not be searched without a warrant. While Belton allows a search of the entire contents of the car, even after the defendant is removed, the initial stop must occur when the defendant is in the car.

United States v. Levy, 990 F.2d 971 (7th Cir. 1993)

A local ordinance outlawed face-to-face solicitations. In this case, a telemarketer called a billiards parlor operator and asked for a twenty-five dollar donation for the Police Federation. The billiards operator agreed. The telemarketer sent a runner to pick up the donation and the police met him there, arrested him and found a gun in his possession. He was charged with a 922(g) violation (possession of a firearm by a convicted felon). Because the defendant had not violated the ordinance, however, there was no probable cause to arrest him and the search incident was improper. The evidence should have been suppressed.

United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991)

When the police come to the door to arrest the person who lives in the house, a search incident to arrest inside the house would only be permissible if the arrest occurred inside the house and police were lawfully in the house. If, however, the police come to the house and after the defendant opens the door, the police barge in and make an arrest, the entry was unlawful and the ensuing search would be illegal. In short, the police must have a warrant to make an arrest inside the defendant’s home unless the defendant acquiesces to the officer’s entry after learning of his intent to make an arrest.

United States v. Shephard, 21 F.3d 933 (9th Cir. 1994)

State officers were given verbal authority by a probation officer to arrest a probationer for violation of the terms of probation. After arresting him, the officers received permission by the probationer to go into his room and retrieve his wallet. While in the room, they discovered a gun. He was prosecuted in federal court for possession of the weapon. Because the arrest by state agents was illegal under state law (the police need a written order to arrest a probationer, not verbal authority), and because the search was sufficiently linked to the unlawful arrest, the evidence should have been suppressed. The federal court looks to state law to determine if an arrest by a state officer for a state offense is lawful. Ker v. California, 374 U.S. 23 (1963).

United States v. Mota, 982 F.2d 1384 (9th Cir. 1993)

The State of California does not permit a custodial arrest based on an infraction (such as selling corn-on-the-cob without a license). In this case, the state agents arrested the defendants and then during a search, discovered counterfeit currency. The federal government could not use the evidence because the search incident to arrest was invalid insofar it was predicated on an illegal arrest (under state law).

United States v. Parr, 843 F.2d 1228 (9th Cir. 1988)

The defendant was stopped by a police officer who suspected that he was driving with a suspended license. The suspect was placed in the patrol car. Subsequently, the police officer searched the defendant’s car and found various contraband. The government contended that this was a lawful arrest and the search of the car was permissible under the search incident to arrest doctrine. The Ninth Circuit disagreed, holding that this was a lawful Terry stop, which does not authorize a search incident to arrest. The search of the automobile was improper and the Motion to Suppress should have been granted.

United States v. Vasey, 834 F.2d 782 (9th Cir. 1987)

The defendant was arrested, handcuffed and placed in a patrol car. Thirty to forty-five minutes later, the officers executed a search of the car contending that it was “incident to arrest.” The Ninth Circuit holds that the evidence should have been suppressed. The court initially concluded that it was not an inventory search because the subjective intent of the officers was to conduct a search for evidence rather than to conduct a search to inventory the contents. The court further concluded that it was an improper search incident to arrest because of the amount of time which had expired between the arrest and the search, the inaccessibility of the car to the defendant at the time of the search, and because the defendant was handcuffed and removed from the car at the time of the search.

United States v. Lugo, 978 F.2d 631 (10th Cir. 1992)

Defendant was arrested for driving with a suspended license. The car was parked in a gas station and the defendant was taken away. The police then inventoried the contents; the officer removed the cover of a speaker in the door panel and located cocaine. This was not a proper search incident to arrest, nor a proper inventory search. It could not be a search incident to arrest, because the defendant had already been taken away in a patrol car. United States v. Chadwick, 433 U.S. 1 (1977). This was not a valid inventory search, because searching inside speakers in door panels is not standard police procedure.

United States v. Bonitz, 826 F.2d 954 (10th Cir. 1987)

The defendant was arrested for purchasing a gun by a convicted felon. Following his arrest and being handcuffed, the police searched some plastic cases which were found in the bedroom of his house. They claimed the search was necessary under the exigent circumstance exception and as an incident to the arrest. The first rationale was untrue because the police officers spent two hours inventorying the entire house and exhibited no particular fear for their own safety. The search was also not justified as an incident to arrest because the defendant was already handcuffed and taken into custody at the time that the police officers conducted a search of his bedroom and the containers found therein.

United States v. Ford, 56 F.3d 265 (D.C.Cir. 1995)

Under Maryland v. Buie, two types of searches for people are permissible in connection with the arrest of a suspect: (1) a search of areas adjacent to the scene of the arrest, regardless of any likelihood of finding evidence; and (2) a search of other areas where there is a reasonable suspicion of finding someone who poses a threat to the officers. In this case, the officers, while looking in adjacent areas, discovered a gun clip. This did not authorize the officers to look behind a window shade, or under a mattress, because in neither location were the officers likely to discover any other person who posed a threat to the officers. The gun found behind the window shade, therefore, should have been suppressed.

United States v. $639,558, 955 F.2d 712 (D.C.Cir. 1992)

Defendant was arrested on an Amtrak train after a dog alerted to his luggage. He was handcuffed, removed from the train and brought to the Amtrak security office where he was handcuffed to a chair. The officers then contemplated what to do and after consulting with an AUSA, they decided to open the luggage. The opening of the luggage occurred at least thirty minutes after the arrest. This was not a valid search incident to arrest. The luggage was in the exclusive control of the police.

United States v. Fafowora, 865 F.2d 360 (D.C.Cir. 1989)

Police officers had probable cause to believe that the defendant was engaged in “counter-surveillance” and thus could arrest the defendant during the course of a narcotics transaction. The subsequent search of the defendant’s vehicle could not be authorized under a search incident to arrest, however, since the car was not within the “immediate surrounding area” of the defendant. However, the car could be forfeited and thus an inventory search was proper.