Introduction

Search Incident to Arrest

Introduction

The Fourth Amendment starts from a preference for warrants. A search carried out without prior approval from a judge or magistrate is "per se unreasonable under the Fourth Amendment," and it survives only if it fits one of "a few specifically established and well-delineated exceptions."¹ The default has a clear purpose. A warrant puts a neutral magistrate between the citizen and the police, so that someone other than the officer investigating the crime decides whether the need to intrude justifies the invasion of privacy. For that reason, anyone who claims an exemption must show that the situation made skipping the warrant necessary.² Search incident to a lawful arrest is one of those recognized exceptions, and it is probably the most important one.³ The Court first acknowledged the right to search an arrested person in dictum in Weeks v. United States in 1914. The practice has since become so routine that the label "exception" undersells it, because warrantless searches of arrestees occur far more often than searches under a warrant.⁴

The exception rests on two dangers that arise whenever police take a person into custody. An officer who has just handcuffed or detained someone must decide within seconds what may be searched, and no magistrate is available to ask. Chimel v. California, the case that fixed the modern boundaries of the doctrine, answers by pointing to the arrest itself. First, the arrestee may seek to use a weapon to resist arrest or to escape. Second, the arrestee may conceal or destroy evidence.⁵ Both dangers peak at the moment of arrest, when the arrestee is within reach of the officer and has the strongest motive to act. They also attach to space as well as to the body: a gun on a table in front of the arrestee is as dangerous as one hidden in clothing, so the arrestee's person and the area within the arrestee's immediate control may be searched.⁶ Chimel itself shows where that logic stops. Officers who had an arrest warrant but no search warrant arrested the defendant at home for a coin-shop burglary and then searched the entire three-bedroom house, including the attic, the garage, and a workshop. The Court held the search unreasonable and the coins inadmissible, because nothing comparable to the two dangers justified routinely searching rooms other than the one where the arrest occurred.⁷

The doctrine goes by several names, including protective search and Chimel search.⁸ Whatever the label, it depends on an arrest that was itself lawful, because a search is valid as incident to arrest only if the arrest was lawful.⁹ A search that exceeds the exception is an unconstitutional search, and evidence obtained through it is inadmissible in state court under the same reasonableness standards that bind federal officers.¹⁰ This explains why scope is the central question throughout. The Chimel limit continues to define the exception because it keeps the search matched to its two purposes of protecting officers and preserving evidence.¹¹ Every later rule in this chapter, whether it concerns the area around the arrestee, a car, a cell phone, or the rooms of a home, is an effort to keep the search no broader than those two dangers justify. The first task is therefore to understand why the exception exists, because that reason is the tool for resolving each new fact pattern.