5. Search Incident to Lawful Arrest (SILA)

Note: This is also commonly referred to as a "search incident to arrest" (SITA), however, this exception to the warrant requirement only applies if the arrest is lawful.

Searches Incident to Arrest

When officers arrest a suspect, they may ordinarily conduct a limited search to locate any weapons or destructible evidence in the arrestee’s possession and in the immediate vicinity. This type of search— known as a search incident to arrest—may be made as a matter of routine, meaning that officers will not be required to prove there was reason to believe they would find weapons or evidence in the places they searched. As the United States Supreme Court explained:

The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.94

Requirements

Officers may conduct a search incident to arrest if the following circumstances existed:

1. Custodial arrest: The arrest must have been “custodial” in nature, meaning that officers had decided to transport the arrestee to jail, a police station, a detox facility, or a hospital.

2. Probable cause: There must have been probable cause to arrest the suspect.

3. Contemporaneous search: The search must have occurred promptly after the arrest was made.95

Scope of search

The following places and things may be searched incident to an arrest:

ARRESTEE’S CLOTHING

Officers may conduct a “full search” of the arrestee.96 Although the term “full search” is vague, the courts have ruled that it permits a more intensive search than a pat down; and that it entails a “relatively extensive exploration” of the arrestee, including his pockets.97

A more invasive search can never be made as a routine incident to an arrest.98 For example, officers may not conduct a partial strip search or reach under the arrestee’s clothing. Such a search would almost certainly be permitted, however, if, (1) officers had probable cause to believe the suspect was concealing a weapon or evidence that could be destroyed or corrupted if not seized before the suspect was transported, and (2) they had probable cause to believe the weapon or evidence was located in the place or thing that was searched.99 Moreover, such a search would have to be conducted in a place and under circumstances that would adequately protect the arrestee’s privacy.100

CONTAINERS

Officers may search containers in the arrestee’s immediate control when he was arrested (e.g., wallet, purse, backpack, hide-a-key box, cigarette box, pillbox, envelope 101), even if he was not carrying the item when he was arrested, and even if officers knew he was not the owner.102 CELL PHONES: This is currently a hot topic: Can officers search the arrestee’s cell phone for evidence pertaining to the crime for which he was arrested?103 At least two federal circuit courts have upheld such searches in published opinions,104 while some district courts have ruled otherwise.105 Stay tuned.

PAGERS

There is limited authority for retrieving numerical data from pagers in the arrestee’s possession if such information would constitute evidence of the crime under investigation.106

ITEMS TO GO WITH ARRESTEE

If the arrestee wants to take an item with him, and if officers permit it, they may search the item.107

VEHICLES

Officers may search the passenger compartment of a vehicle in which the arrestee was an occupant.108

RESIDENCES

If the suspect was arrested inside a residence, officers may search places and things in the area within his grabbing or lunging distance at the time he was arrested.109 Officers may also search the area “immediately adjoining” the place of arrest—even if it was not within his immediate control—but these searches must be limited to spaces in which a potential attacker might be hiding.110

Footnotes

94 United States v. Robinson (1973) 414 U.S. 218, 235.

95 See United States v. Robinson (1973) 414 U.S. 218, 234-35 [“It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.”]; Gustafson v. Florida (1973) 414 U.S. 260, 265.

96 United States v. Robinson (1973) 414 U.S. 218, 235.

97 United States v. Robinson (1973) 414 U.S. 218, 227.

98 See United States v. Robinson (1973) 414 U.S. 218, 236 [“While thorough, the search partook of none of the extreme or patently abusive characteristics which were held to violate the Due Process Clause”].

99 NOTE: While more intrusive searches based on reasonable suspicion are permitted at jail before the arrestee is admitted into the general population (see Pen. Code § 4030(f)), we doubt that anything less than probable cause would justify such a search in the field. 100 See Illinois v. Lafayette (1983) 462 U.S. 640, 645 [“[T]he interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street”].

101 See United States v. Robinson (1973) 414 U.S. 218, 223; In re Humberto O. (2000) 80 Cal.App.4th 237, 243.

102 See Chimel v. California (1969) 395 U.S. 752, 763.

103 See U.S. v. Skinner (E.D. Tenn. 2007) 2007 WL 1556596] [“To say that case law is substantially undeveloped as to what rights are accorded a cell phone’s user, particularly in these circumstances, would be an understatement.”].

104 See U.S. v. Finley (5th Cir. 2007) 477 F.3d 250, 260; U.S. v. Murphy (4th Cir. 2009) F.3d [2009 WL 94268].

105 See, for example, U.S. v. Park (N.D. Cal. 2007) 2007 WL 1521573; U.S. v. Wall (S.D. Fla. 2008) [2008 WL 5381412]. See also U.S. v. Zavala (5th Cir. 2008) 541 F.3d 562 [search of cell phone unlawful because officers did not have probable cause to arrest]. 106 See U.S. v. Ortiz (7th Cir. 1996) 84 F.3d 977, 984 [“[I] is imperative that law enforcement officers have the authority to immediately ‘search’ or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.”]; U.S. v. Reyes (S.D. N.Y. 1996) 922 F.Supp. 818, 833 [“[T]he search of the memory of Pager #1 was a valid search incident to Reyes’ arrest.”]; U.S. v. Chan (N.D. Cal. 1993) 830 F.Supp. 531, 536 [“The search conducted by activating the pager’s memory is therefore valid.”].

107 See People v. Topp (1974) 40 Cal.App.3d 372, 378; U.S. v. Garcia (9th Cir. 2000) 205 F.3d 1182.

108 See New York v. Belton (1981) 453 U.S. 454.

109 See Chimel v. California (1969) 395 U.S. 752, 763.

110 See Maryland v. Buie (1990) 494 U.S. 325, 334.

Attributions and Licensing

Unless otherwise indicated, this page's content is adapted from the following sources: 5.3 Arrests by Larry Alvarez, used under CC BY 4.0. This page is licensed under CC BY 4.0.