Also known as:search incident to arrest · searches incident to arrest · search-incident-to-arrest · SITA · search incident to lawful arrest
Written by attorneys — see sources below.
A warrantless search of an arrestee and the area within the arrestee's immediate control that is justified by the fact of a lawful custodial arrest. The search must occur substantially contemporaneously in time and place with the arrest and is limited to protecting officer safety and preserving evidence.
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How its tested
Common Examples
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Delayed Trunk Search After Impoundment
Samuel Soto is arrested on an outstanding warrant at a gas station. Officers handcuff him, tow his car to the station lot, and two hours later open the trunk without a warrant. The court suppresses the items found because the search occurred after the arrest was complete and remote from the scene.
Protective Search Of Vehicle Area
Simon Stern is arrested after a traffic stop for a suspended license. While he stands handcuffed beside the open car door, an officer reaches into the passenger compartment and finds a knife under the seat. The knife is admissible because the search was limited to the area within Stern's immediate control at the time of arrest.
In a rural area of Michigan one evening shortly after midnight, Deputies Howell and Lewis observed a car traveling erratically and at excessive speed. The officers observed the car turning down a side road, where it swerved off into a shallow ditch. The officers stopped to investigate. Long, the only occupant of the automobile, met the deputies at the rear of the car, which was protruding from the ditch onto the road. The door on the driver's side of the vehicle was left open.
Deputy Howell requested Long to produce his operator's license, but he did not respond. After the request was repeated, Long produced his license. Long again failed to respond when Howell requested him to produce the vehicle registration. After another repeated request, Long, who Howell thought appeared to be under the influence of something, turned from the officers and began walking toward the open door of the vehicle. The officers followed Long and both observed a large hunting knife on the floorboard of the driver's side of the car. The officers then stopped Long's progress and subjected him to a Terry protective patdown, which revealed no weapons.
Long and Deputy Lewis then stood by the rear of the vehicle while Deputy Howell shined his flashlight into the interior of the vehicle, but did not actually enter it. The purpose of Howell's action was to search for other weapons. The officer noticed that something was protruding from under the armrest on the front seat. He knelt in the vehicle and lifted the armrest. He saw an open pouch on the front seat, and upon flashing his light on the pouch, determined that it contained what appeared to be marihuana. After Deputy Howell showed the pouch and its contents to Deputy Lewis, Long was arrested for possession of marihuana. A further search of the interior of the vehicle, including the glovebox, revealed neither more contraband nor the vehicle registration. The officers decided to impound the vehicle. Deputy Howell opened the trunk, which did not have a lock, and discovered inside it approximately 75 pounds of marihuana.
The Barry County Circuit Court denied Long's motion to suppress the marihuana taken from both the interior of the car and its trunk. He was subsequently convicted of possession of marihuana. The Michigan Court of Appeals affirmed Long's conviction, holding that the search of the passenger compartment was valid as a protective search under Terry. The Michigan Supreme Court reversed. The court held that the sole justification of the Terry search, protection of the police officers and others nearby, cannot justify the search in this case. The marihuana found in Long's trunk was considered by the court below to be the fruit of the illegal search of the interior, and was also suppressed.
The Supreme Court granted certiorari to consider the authority of a police officer to protect himself by conducting a Terry-type search of the passenger compartment of a motor vehicle during the lawful investigatory stop of the occupant of the vehicle.
Steven Silva and a companion are arrested after a highway rest stop. Officers search Silva's pockets and recover the murder weapon. The pistol is admissible because the search occurred immediately upon the lawful arrest and was confined to the arrestee's person.
Gregg v. Georgia428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859
On November 21, 1973, Troy Gregg and Floyd Allen were hitchhiking north in Florida when they were picked up by Fred Simmons and Bob Moore in their car.
Their car broke down. Simmons purchased another vehicle with some of the cash he was carrying. While still in Florida, the group picked up Dennis Weaver, who rode with them to Atlanta, where he was let out about 11 p.m.
A short time later the four men stopped for a rest along the highway in Gwinnett County, Georgia. The next morning the bodies of Simmons and Moore were discovered in a nearby ditch.
On November 23, after reading about the shootings in an Atlanta newspaper, Weaver communicated with the Gwinnett County police and related information concerning the journey with the victims, including a description of the car. The next afternoon, Gregg and Allen, while in Simmons' car, were arrested in Asheville, North Carolina. In the search incident to the arrest a .25-caliber pistol, later shown to be that used to kill Simmons and Moore, was found in Gregg's pocket. After receiving Miranda warnings and signing a written waiver, Gregg signed a statement admitting he shot Simmons and Moore but claiming self-defense.
At the guilt stage of the bifurcated trial, a medical examiner testified that Simmons died from a bullet wound in the eye and that Moore died from bullet wounds in the cheek and in the back of the head. The examiner further testified that both men had several bruises and abrasions about the face and head. Gregg testified claiming self-defense after Simmons and Moore allegedly attacked with a pipe and knife, but the jury convicted him of two counts of armed robbery and two counts of murder.
At the penalty stage before the same jury, neither side presented additional evidence. The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count. The judge further charged the jury that in determining the sentence it was free to consider mitigating or aggravating circumstances. The judge instructed that death could not be imposed unless the jury found beyond a reasonable doubt one of the aggravating circumstances. The jury found the first and second aggravating circumstances and returned verdicts of death on each count. The Supreme Court of Georgia affirmed the convictions and the death sentences for murder after reviewing the record and comparing the sentences to similar cases, but it vacated the death sentences for armed robbery. The United States Supreme Court granted certiorari limited to the challenge to the death sentences under the Eighth and Fourteenth Amendments.
Spencer Silver is arrested inside his apartment after officers enter without an arrest warrant. The subsequent search of the bedroom yields evidence. The evidence is suppressed because the initial entry to effect the arrest was unlawful and no exception justified the warrantless intrusion.
Payton v. New York445 U.S. 573 (1980)
In January 1970, New York detectives conducted a two-day investigation into the murder of a gas station manager. On January 14 they assembled evidence sufficient to establish probable cause to believe that Theodore Payton had committed the crime. On the morning of January 15 at about 7:30 a.m., six officers went to Payton’s apartment in the Bronx without having obtained a warrant. Although light and music emanated from inside, there was no response to their knock on the metal door. They summoned emergency assistance and approximately thirty minutes later used crowbars to break open the door and enter. No one was present, but the officers seized a .30-caliber shell casing that lay in plain view and that was later admitted into evidence at Payton’s murder trial.
In a companion case, on March 14, 1974, police officers acting with probable cause went to the Queens house where Obie Riddick was living to arrest him for two armed robberies that had occurred in 1971. When Riddick’s young son opened the door the officers saw Riddick sitting in bed. They entered the house, placed him under arrest, and before permitting him to dress opened a chest of drawers two feet from the bed. They discovered narcotics and related paraphernalia that were later admitted at his trial on narcotics charges.
In both cases the New York trial courts upheld the warrantless entries and plain-view seizures under provisions of the New York Code of Criminal Procedure that authorized such actions, and the Appellate Divisions affirmed. The New York Court of Appeals, in a single 4-3 opinion, affirmed the convictions of both Payton and Riddick. The Supreme Court granted certiorari in both cases, which were argued together.
Sylvia Santos is arrested for driving with a suspended license and placed in the patrol car. Officers then search the passenger compartment of her vehicle and find drugs. The drugs are suppressed because Santos was secured and posed no threat to evidence or officers at the time of the search.
Arizona v. Gant556 U.S. 332 (2009)
On August 25, 1999, Tucson police officers Griffith and Reed responded to an anonymous tip that the residence at 2524 North Walnut Avenue was being used to sell drugs by knocking on the front door and speaking with Rodney Gant, who identified himself and stated that he expected the owner to return later. The officers left and conducted a records check revealing that Gant's driver's license had been suspended and that there was an outstanding warrant for his arrest for driving with a suspended license.
When the officers returned to the house that evening, they found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. Both arrestees were handcuffed and secured in separate patrol cars when Gant arrived. Gant arrived in his car, parked at the end of the driveway, and got out. Officer Griffith recognized the car, confirmed Gant's identity with a flashlight, called to him, and arrested him 10 to 12 feet from the vehicle before handcuffing him.
Because the other arrestees occupied the only patrol cars at the scene, Griffith called for backup. When two more officers arrived, they locked Gant in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of a patrol car, two officers searched his car. One of them found a gun, and the other discovered a bag of cocaine in the pocket of a jacket on the backseat.
Gant was charged with two offenses of possession of a narcotic drug for sale and possession of drug paraphernalia. He moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. The trial court denied the motion to suppress. A jury found Gant guilty on both drug counts, and he was sentenced to a 3-year term of imprisonment. After protracted state-court proceedings, the Arizona Supreme Court concluded that the search of Gant's car was unreasonable within the meaning of the Fourth Amendment. The United States Supreme Court granted the State's petition for certiorari.
Sydney Santos is arrested in her living room. Officers search the entire house including distant closets and recover stolen property. The property is suppressed because the search exceeded the area within Santos's immediate control at the moment of arrest.
Chimel v. California395 U.S. 752 (1969)
On the afternoon of September 13, 1965, three police officers arrived at the Santa Ana, California home of Ted Steven Chimel with a warrant authorizing his arrest for the burglary of a coin shop. The officers knocked on the door, identified themselves to Chimel's wife, and asked if they might come inside. She admitted the officers, who waited ten to fifteen minutes until Chimel returned from work.
When Chimel entered, an officer handed him the arrest warrant and asked if he had any coins or medals. Chimel replied that he did not. The officers then asked if he minded if they looked around. Chimel objected, but the officers advised him that on the basis of the lawful arrest they would conduct a search anyway. No search warrant had been issued.
The officers looked through the entire three-bedroom house, including the attic, the garage, and a small workshop. In the master bedroom and sewing room the officers directed Chimel's wife to open drawers and move their contents so the officers could view any items. The search lasted between forty-five minutes and one hour and yielded numerous coins, medals, tokens, and other objects.
At Chimel's subsequent state trial on two charges of burglary, the seized items were admitted into evidence over his objection that they had been unconstitutionally seized. He was convicted. The California Court of Appeal affirmed the judgment of conviction, and the California Supreme Court denied review. Both lower courts held that the arrest was lawful and that the search was justified as incident to that arrest. The United States Supreme Court granted certiorari to consider the petitioner's constitutional claims regarding the scope of the search.
Does the search-incident doctrine permit officers to search the digital contents of a smartphone seized from an arrestee?
No. Officers may seize the phone and inspect its physical exterior for weapons, but they may not unlock the device or review stored data without a warrant or a separate exigency. The privacy interests in digital contents exceed the traditional rationales of officer safety and evidence preservation.
Supporting sources
May officers conduct a search incident to arrest after merely issuing a traffic citation without making an arrest?
No. A citation alone does not authorize a search incident to arrest. An actual custodial arrest supported by probable cause is required before the exception applies.
Supporting sources
Is a search incident to arrest still valid if the arrest violates state law but rests on probable cause?
Yes. The Fourth Amendment requires only that the arrest be supported by probable cause and be constitutionally valid. State-law violations do not invalidate the federal search-incident authority.
Supporting sources
How does the timing of a search affect its validity under the search-incident doctrine?
The search must be substantially contemporaneous with the arrest. A delayed search conducted after the arrestee has been removed and the vehicle impounded falls outside the doctrine and requires an independent justification.
Supporting sources
428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859
…of the car. The next afternoon, the petitioner and Allen, while in Simmons' car, were arrested in Asheville, N. C. In the search incident to the arrest a .25-caliber pistol, later shown to be that used to kill Simmons and Moore, was found in the petitioner's pocket. After receiving the warnings required by Miranda v. Arizona , 384 U. S.…