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Search & Seizure – Search Incident to a Valid Arrest


Although the Fourth Amendment to the United States Constitution guarantees the right to be secure against unreasonable searches and seizures and requires a search warrant in order to search a person or a place, there are exceptions to this requirement. One of the exceptions is a search that occurs at the time of a valid arrest. This is referred to as a search incident to a valid arrest.

An arresting officer is entitled to search a person at the time of his or her arrest as long as the arrest is valid and as long as it is done contemporaneously with the arrest. There must actually be an arrest. The person’s freedom of movement must be restrained or restricted by the use of physical force or by a show of authority. If the person is free to leave, there is no arrest. Also, mere questioning by the police does not constitute an arrest. The search cannot precede the arrest or serve as a justification for the arrest.

Safety Issue

The main reason for this exception to a search warrant is the safety of the arresting officer. The arresting officer has a right to search the person in order to determine whether the person has weapons or other dangerous instrumentalities. The search may include a search of the person’s clothes and effects and the surface of his or her body. The search generally may not include an invasion of the person’s body, such as body cavity searches, blood samples, and surgical procedures, unless there is an emergency, a life-threatening accident, or implied consent. Implied consent refers to state laws which provide that a person is deemed to have consented to drug and alcohol testing as a condition for obtaining a license or for operating a motor vehicle on highways and waterways.

The search does not have to occur at the place of the arrest. It may occur later, such as when the arrested person is booked. However, the delay cannot be unreasonable because the search would not then be considered as incident to the arrest. The longer the delay, the more likely that there would have been time for the arresting officer to have obtained a search warrant.

Scope of Search

In addition to the person’s clothes and effects, the arresting officer may search the immediate area around the person. The immediate area is the area within the person’s reach and control. The reason for the search of the immediate area is the same as the search of the arrested person’s clothing and effects, that is, the safety of the arresting officer. Although the immediate area might include a closet or a drawer near the person, it does not include a closet or a drawer in another room because the closet or the drawer in the other room is not within the person’s immediate reach or control. However, the officer may conduct a “protective sweep” of the entire premises if it is limited to a quick and cursory check of the premises in order to secure the safety of the officer. The officer is allowed to look for other persons on the premises who might be a danger to the officer. The purpose of the “protective sweep” is not to obtain evidence against the arrested person. Its purpose is to protect the safety of the arresting officer.

When a person is arrested outside a residence, the arresting officer is generally not permitted to search inside the arrested person’s residence. There are exceptions, however, if the residence is near the person, if the arresting officer suspects that dangerous persons might be in the residence, or if arresting officer’s safety is at stake.

If a person is arrested in or near an automobile, the search of the immediate area includes a search of the passenger compartment of the arrested person’s automobile. However, the search of the automobile does not extend to a search of the trunk of the automobile.

In summary, the ability of the arresting officer to conduct a search incident to a lawful arrest is based upon the necessity for the officer’s safety. If a search is conducted, which is not necessary for the safety of the officer, the warrantless search may be deemed to be invalid and evidence discovered from the search may be excluded at trial.

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