Tuesday, May 3, 2011

Criminal Procedure: Search Incident to a Lawful Arrest

Question:

Hi,

Could you discuss the search incident to lawful arrest rule as it pertains to automobiles. I seem to be getting conflicting information in light of Arizone v Gant (2009) compared to New York v. Belton (1982) rules.

Thanks!

Response:

When considering this specific issue, it should first be looked upon in its larger context: the automobile exception allows the police to conduct a warrantless search, even though the general rule states that warrantless searches (not fitting within one of the exceptions), are unconstitutional.

A search incident to a lawful arrest allows the police to search a person and areas into which he might reach to obtain weapons, or destroy evidence. As an aside, don't get the "automobile exception" confused with the search incident to a lawful arrest. The "automobile exception" is a different exception to the general warrant requirement, allowing the police to search the whole vehicle and any container that might reasonably contain an item, if the police have probable cause that the vehicle contains evidence of a crime. The police also may tow the vehicle to the station, and search it later.





4 comments:

  1. "A search incident to a lawful arrest allows the police to search a person and areas into which he might reach"

    So in a search incident to lawful arrest, the police can't search the trunk since the person can't reach into a trunk from the driver's seat?

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  2. That's entirely correct. Another exception to the warrant requirement is an automobile search (be sure that the police have probable cause to search the automobile), and in that exception the police can, in fact, search the trunk of the car, assuming that whatever provided them with probable cause to search the car could reasonably fit in the trunk.

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  3. Hi Sean!

    So why don't the police always use the automobile exception to get access to the trunk following a constitutional arrest? Because from what I understand, the standard to use the automobile exception is "probable cause to believe that a vehicle contains evidence of a crime" and one of the standards to trigger the search incident to constitutional arrest is "the police reasonably believe that evidence of the offense for which the person was arrested may be found in th vehicle" which are basically the same.

    Thanks a lot Sean and have a nice day!

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  4. It's a good question, and an important distinction. The standard you've stated ("probable cause to believe that a vehicle contains evidence of a crime") is correct, but keep in mind that arresting someone doesn't always lead to satisfaction of that standard. Certainly, it might be true that when you arrest someone, you are arresting him because you have probable cause to believe that the vehicle contains evidence of the crime (in which case, yes, you can search the entire car, but the basis for that search would be the automobile exception rather than a search incident to a lawful arrest).

    But it also might be true that you are arresting someone in a car because you believe the person had been drinking prior to getting into the car and then driving (for example). In that situation, the car itself has very little do with the arrest other than the fact that person arrested happens to have been in the car while arrested. The main point to take away is that by arresting someone you are allowed to search their wingspan, or any area in which the person might reach for a weapon. That applies inside or outside of a car. But when arresting someone in a car, the police won't always have the probable cause required for an entire search of the car, and in those circumstances where they do not, they are limited to searching in areas where the person arrested might reach for a weapon.

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