Search Incident to Arrest - May 2023ROHNERT PARK DEPARTMENT OF PUBLIC SAFETY
TRAINING BULLETIN -SEARCHES INCIDENT TO ARREST
05/2023
Requirements for Searches Incident to Arrest:
(1)Lawful arrest
(2)Custodial arrest
(3)Contemporaneous Search (within a reasonable amount of time of the arrest -on-scene
unless there is “good cause”for searching away from the scene)
Lawful Arrest
*People v.Limon:An o cer with probable cause to arrest can search incident to arrest before
making the arrest
*People v.Nieto:“It makes no di erence that the seizure came before the arrest as long as
probable cause for the arrest existed at the time evidence was seized”and “it is immaterial that
the search preceded the arrest”.
1
Custodial Arrest
*An arrest is “custodial”if:
(1)Suspect was arrested for an o ense in which o cers were required to transport the
suspect;
(2)A statute giving o cers the option to transport or cite,and they elected to transport
(United States v.Pino)
*An arrest is NOT “custodial”if:
(1)The suspect will be cited &released at the scene
(2)If the o cers had not yet decided to take the suspect into custody (United States v.
Jackson)
*The reasonableness of a search or seizure depends on what actually happens rather than what
could have happened (United States v.Garcia)
*“So long as the o cer has probable cause to believe that an individual has committed a criminal
o ense,a custodial arrest -even one e ected in violation of state arrest procedures -does not
violate the Fourth Amendment”(People v.McKay -SCOTUS ruling)
Contemporaneous Search
*“The Court has consistently held that a search can be incident to arrest only if it is substantially
contemporaneous with the arrest and is confined to the immediate vicinity of the arrest”(Shipley
v.California)
*“To be incident to a lawful arrest,a warrantless search must be limited both as to time and
place”(People v.Balassy).
*“There is no fixed outer limit for the number of minutes that may pass between an arrest and a
valid,warrantless search that is contemporaneous incident of the arrest.Instead,the courts have
employed flexible standards such as “roughly contemporaneous with the arrest”and within “a
reasonable time”after obtaining control of the object of the search”(People v.McLaughlin).
*“A search need not be conducted immediately upon the heels of an arrest,but sometimes may be
conducted well after the arrest,so long as it occurs during a continuous sequence of events”
(United States v.Smith -Ninth Circuit).
2
Custodial Arrests for Minor O enses -Penal &Vehicle Codes
Courts upheld a custodial arrest for a violation of Texas’seat belt law (an o ense punishable by
fine of not less than $25 and not more than $50)(Atwater v.Lago Vista).
Searching Discarded Items
The Sixth Circuit ruled that if a suspect drops,discards,or tries to hide an item just prior to their
arrest,o cers may retrieve it and search it (exception to this rule =electronic devices pursuant to
CALECPA -must follow CALECPA and obtain search warrant absent consent &exigent
circumstances).
Vehicle Searches -Incident to Arrest of an Occupant
O cers may not search the separated/compartmentalized trunk of a vehicle without further
justification (New York v.Belton -this applies when a passenger in a vehicle is arrested -you can
only search the area they had immediate access to).
New York v.Belton &Arizona v.Gant -What’s the Di erence?
New York v.Belton
*Overruled by Arizona v.Gant
*Formerly allowed o cers to,after arresting someone from the passenger compartment of a
vehicle,to search the entire vehicle for weapons/contraband/evidence.
Arizona v.Gant
*An o cer is permitted to conduct a vehicle search when an arrestee is within reaching distance of
the vehicle or it is reasonable to believe the vehicle contains evidence of the o ense of arrest.
3
Case Law -Summaries
In re Demetrius A (1st District Court of Appeal -1989)The lawfulness of the search turns not on whether the o cer intended to release the defendantafterhavingtakenhimintocustody,but on whether the o cer was justified in arresting thedefendantandtakinghimintocustodyinthefirstplace.
People v.Limon (1993)An o cer with probable cause to arrest can search incident to arrest before making the arrest.
People v.Nieto (1990)It makes “no di erence”that the seizure came before the arrest as long as probable cause for thearrestexistedatthetimetheevidencewasseized.
Atwater v.Lago Vista (2001)Upheld a custodial arrest for a violation of Texas’seat belt law (an o ense punishable by fine of notlessthan$25 and not more than $50).
United States v.McFadden (2001)Upheld a custodial arrest for riding a bicycle on the sidewalk.
Riley v.California (2014)The United States Supreme Court ruled that searching a suspect’s cell phone “incident to arrest”isunconstitutional.
Washington v.Chrisman (1982)“It is therefore immaterial that the suspect was arrested for a relatively minor crime”-the suspectinthiscasewasarrestedforminorinpossessionofalcohol.
4
References:
*Alameda County Point of View -Searches Incident to Arrest
https://le.alcoda.org/publications/point_of_view/files/SITA.pdf
*Sonoma County District Attorney’s O ce
*Oyez.org
5