Search Warrant Exceptions: (1) Search Incident to Arrest

The 4th Amendment of the Constitution protects citizens from unreasonable searches. Warrantless searches are presumptively unreasonable unless it falls within an established exception to the warrant requirement. In this blog series I’m going to identify and analyze each of these seven exceptions in a way that will help nonlawyers better understand when a search warrant is required.

Exception 1: Search incident to arrest.

With regard to motor vehicles, prior to 2009 whenever a police officer made a lawful arrest of an occupant of a vehicle, the officer also had authority to search the person and passenger compartment of the vehicle. Post 2009, the automatic presumption of authority to search the entire passenger compartment incident to a lawful arrest is no longer lawful. Now, police may only conduct a warrantless search of a vehicle incident to the arrest of a passenger if it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. The important distinction here requires that the evidence must be related to that of the offense for which the occupant was arrested. 

Prior to the change in law, it wasn’t uncommon for police officers to make traffic stops and custodial arrests for minor traffic offenses, like driving after revocation. They made custodial arrests on the basis that it was necessary to either (1) ensure the driver would appear in court (if the driver had a history of non appearance); or (2) to prevent ongoing criminal activity (to stop the driver from driving if he had prior similar driving related offenses on his record). Under the old law, once that custodial arrest was made, the police had free reign to search the vehicle, oftentimes uncovering small amounts of drugs or other contraband that led to more serious, albeit unrelated, charges.

Fortunately, since 2009, the law now only permits officers to conduct warrantless searches of a motor vehicle incident to arrest when there is reason to believe evidence related to the offense for which the person was arrested will be found. Therefore, if a driver is arrested for driving after revocation (for the reasons illustrated above), he no longer needs to fear an expansive and intrusive search because there is no reason to suspect additional evidence of the crime of driving without a license will be found (side note: that doesn’t preclude officers from using their senses (i.e. smell) to detect additional evidence that may legitimize a later search).

Finally, the law with regard to the search of a person incident to a lawful arrest remains unchanged. Police officers are authorized to conduct a warrantless search during or immediately following a lawful arrest. The search is limited to the person and the area immediately surrounding the person may be searched. 

This first exception to the warrant requirement is an important one. Twelve years after the law changed, I still see police officers misapplying the law with regard to searches. A skilled attorney knows what to look for in reviewing police reports and video, and successful challenges to an unlawful search can oftentimes result in the exclusion of evidence or dismissal of a criminal case.