Search Incident to Arrest

views updated


weeks v. united states (1914) recognized, as an exception to the fourth amendment's requirement of a search warrant, the authority of police to search a person incident to his arrest in order to discover concealed weapons or evidence. This principle has remained essentially unchallenged, although its application to a person arrested for a minor offense, such as a traffic violation, involving small likelihood of danger to the officer, was severly criticized by some Justices in united states v. robinson (1973). Extension of the allowable search from the person of the arrestee to include the area "in his control," in agnello v. united states (1925), planted the seed of conflict between those Justices who would allow a complete search of the premises and those who would limit the search to the area from which the arrestee could conceivably reach for weapons to wield or evidence to destroy.

Marron v. United States (1927) allowed the search to cover "all parts of the premises," but in Go Bart v. United States (1931) and United States v. Lefkowitz (1932) the Court condemned wholesale "rummaging of the place." Again, Harris v. United States (1947) upheld the search of an entire apartment, but Trupiano v. United States (1948) forebade even the seizure of contraband in plain view of the arresting officers. The pendulum again swung in United States v. Rabinowitz (1950), which authorized search of the whole place. By now the field was "a quagmire," as Justice tom c. clark exclaimed, dissenting in Chapman v. United States (1961). One group of Justices took the position, essentially, that once officers are legitimately on premises to make an arrest, the accompanying search, no matter how extensive, is only a minor additional invasion of privacy and therefore reasonable. They conceded that the arrest must not serve as a pretext for the search, and that the search must be limited to objects for which the arrest was made, but these limitations are easily evaded. Justice felix frankfurter provided intellectual leadership for the opposing view, arguing that when a search incident to arrest is allowed to extend beyond the need that gave rise to it, the exception swallows up the rule that a warrant must be obtained save in exigent circumstances. Moreover, because a warrant often will strictly limit the area to be searched, to authorize search of the entire premises has the novel effect of allowing searches incident to arrest a broader scope than searches under warrant.

So the matter stood until chimel v. california (1969). There the Court restored the balance between theory and practice by overruling Harris and Rabinowitz and limiting the scope of incident searches to the person of the arrestee and his immediate environs. Still, the Chimel limitation may not always apply. Where the police have strong reason to believe that confederates of the arrestee are hidden on the premises, they are presumably entitled, under the "hot pursuit" doctrine of warden v. hayden (1967), to make a "sweep" of the place in order to minimize the danger. The reverse would also seem to follow: once the arrestee has been subdued (assuming there is no reason to suspect the presence of confederates), the police no longer have authority to search even a limited area.

An important legal difference between search of the person's clothing and search of property within the area of his reach should be noted. Property under the arrestee's control, which might have been searched without a warrant immediately following the arrest, may not be searched later; to be lawful under United States v. Chadwick (1977) the search must be substantially contemporaneous with the arrest. However, in a radical departure from the spirit, if not the letter, of the Chimel rule, the Court held in United States v. Edwards (1974) that authority to search the arrestee's clothing is not lost by the passage of time and may be exercised hours later, following his incarceration. The rationale for this difference appears to be that the arrestee's expectation of privacy in property not associated with his person remains undiminished. Absent a warrant, the property search must therefore be carried out promptly, as an exigency measure, or not at all.

Under Illinois v. Lafayette (1983), an arrestee's possessions may be inventoried in the police station prior to his incarceration so as to safeguard them against theft and protect the officers against spurious claims. Because it is considered a reasonable administrative procedure, "the inventory search constitutes a well-defined exception to the warrant requirement."

Jacob W. Landynski


La Fave, Wayne R. 1978 Search and Seizure: A Treatise on the Fourth Amendment. Vol. 2:406–466. St. Paul, Minn.: West Publishing Co.

Landynski, Jacob W. 1966 Search and Seizure and the Supreme Court. Pages 87, 98–117. Baltimore: Johns Hopkins University Press.

——1971 The Supreme Court's Search for Fourth Amendment Standards. Connecticut Bar Journal 45:2–30.