Chapter 28: Searches Incident to Arrest
Generally
Defined: Searches incident to arrest are searches of arrestees that are conducted as a matter of routine when the arrest is made.[1]
Two objectives: To locate and seize (1) any weapons that could be used against the arresting officers, and (2) any destructible evidence of the crime for which the person was arrested.[2]
Related subjects covered elsewhere
Searching booked property: Chapter 14 Booking Searches
Vehicle searches incident to arrest: Chapter 31 Vehicle Searches
Requirements
Generally: The following are the requirements:
(1) Lawful arrest: The arrest must have been “lawful.”
(2) Custodial arrest: The arrest must have been “custodial.”
(3) Contemporaneous search: The search must have been contemporaneous with the arrest.
“Lawful” Arrest
Defined: A suspect is “lawfully arrested” if there was probable cause.[3]
Search before arrest: Officers may conduct the search before placing the suspect under arrest.[4]
Officers unsure about probable cause: It is immaterial that the officers were unsure about whether they had probable cause.[5]
Officer’s motivation immaterial: It is immaterial that officers decided to make the arrest because they wanted to search the arrestee.[6]
Arrest for “wrong” crime: If officers arrested the suspect for a crime that a court later ruled was not supported by probable cause, the “lawful arrest” requirement will be satisfied if the court finds there was probable cause to arrest him for another crime. See Chapter 3 Probable Cause to Arrest (Generally, Arrest for wrong crime).
“Custodial” Arrest
Defined: An arrest is “custodial” if officers will transport the arrestee to jail, a police station, or other place of confinement or treatment; i.e., he will not be cited and released.[7]
Mandatory custody: An arrest is necessarily custodial if the suspect was arrested for any felony or a misdemeanor for which the officers were required to book him into jail; e.g., DUI, misdemeanor likely to continue. See Chapter 7 Post-Arrest Procedure (Disposition of Arrestees).
Optional custody: An arrest is also custodial if the law gave officers the option of taking the arrestee into custody and they elected to do so.[8]
Juveniles: The arrest of a minor is custodial if the minor will be taken to a police station, to home, to juvenile hall, to school, to a curfew center, or into protective custody.[9]
Traffic infractions: Although a driver stopped for a traffic infraction is technically under arrest (at least temporarily), it is not a custodial arrest if he will be cited and released.[10]
Marijuana: A person who possesses marijuana must ordinarily be cited and released. Consequently, unless there is good reason to transport the suspect for booking, officers may not conduct a search incident to arrest. See Chapter 22 Marijuana Searches.
Arrest for bailable or “minor” crimes: It is irrelevant that the arrestee could have posted bail after he was booked, or that he was arrested for a “minor” crime.[11]
Custodial arrest in violation of statute: If officers were required under a California statute to cite and release the arrestee, but they nevertheless took him into custody, the arrest is still a lawful custodial arrest under the Fourth Amendment if there was probable cause.[12] Officers might, however, be civilly liable for violating the statute.[13]
“Contemporaneous” search: Although the word “contemporaneous,” in common usage, refers to situations in which two acts occur at about the same time, the courts have consistently ruled that the circumstances surrounding most arrests are too erratic and unpredictable to require a strict succession of events. Instead, the Supreme Court ruled that the arrest and search need only be “substantially contemporaneous.”[14] This means the search must have been conducted in conjunction with the arrest and not at a later time or place.
Scope of the Search:
Although officers may conduct searches incident to arrest as a matter of routine, the search must be reasonable in its scope, as follows:
Generally
“Immediate control”: The search must be limited to “the arrestee’s person and the area within his immediate control,” meaning “the area from within which he might gain possession of a weapon or destructible evidence.”[15]
Control at time of arrest vs. time of search: The test is whether the search was limited to places and things within the arrestee’s immediate control at the time of the search, not at the time of the arrest.[16]
Arrestee handcuffed: An arrestee who has been handcuffed does not ordinarily have immediate access to anything other than items under the clothing or in pockets. But also see this endnote.[17]
Searching the arrestee’s person: Because the clothing worn by an arrestee is necessarily within his immediate control (even if he was handcuffed[18]), officers may conduct a “full search” of it.[19] Although the term “full search” is vague, the courts have said it permits a more intensive search than a pat down;[20] and that it entails a “relatively extensive exploration” of the arrestee, including his pockets.[21] Officers may not conduct strip searches or any other exploration that is “extreme or patently abusive.”[22] Furthermore, if it becomes necessary to remove some of the arrestee’s clothing in order to conduct a full search, officers must do so with due regard for the arrestee’s legitimate privacy interests.[23]
Searching communications devices: Cell phones and other communications devices may not be searched incident to arrest.[24] But if officers believe they have probable cause for a warrant, they may seize the phone and apply for one.[25] Also see Chapter 39 Electronic Communications and Records Searches.
Searching personal property: Containers and other personal property in close proximity to the arrestee at the time of the arrest (other than communications devices) may be searched incident to the arrest if the arrestee had the ability to access the contents when the search occurred.[26]
Relevant circumstances: The following circumstances are relevant in determining whether the arrestee had access to a container or other personal property:
Arrestee’s proximity to thing searched: The distance between the arrestee and the personal property is especially important.[27]
Lunging distance vs. grabbing distance: Although the area accessible to an arrestee is sometimes called “grabbing distance,”[28] it is not limited to places and things that were literally within his reach or “wingspan.”[29] Instead, officers may ordinarily search places and things that were within his “lunging” distance.[30]
Expect irrationality, not acrobatics: In determining whether something was within lunging distance, officers may consider that arrestees may act irrationally—that their fear of incarceration may motivate them to try to reach places some distance away.[31] Still, the place or thing “must be conceivably accessible to the arrestee—assuming that he was neither an acrobat nor a Houdini.”[32]
Uncertainty as to arrestee’s access: In determining whether an unsecured arrestee had immediate access to a place or thing, courts recognize that custodial arrests are often dangerous and that “the police must act decisively and cannot be expected to make punctilious judgments regarding what is within and what is just beyond the arrestee’s grasp.”[33]
Other suspects had immediate access: In three cases, the courts ruled that, although the arrestee did not have immediate access to the thing that was searched, the search was lawful because there were other suspects who did.[34]
If arrestee fled: If the arrestee fled before officers gained control over him, they may search personal property he left behind, even though it was no longer under his immediate control. There are three reasons for this: (1) it is not in the public interest to give arrestees the ability to thwart the discovery of incriminating evidence by defying officers and forcibly distancing themselves from it,[35] (2) officers would ordinarily need to conduct an inventory of the property, including the contents of any containers, and (3) the arrestee’s flight would have resulted in the abandonment of the property.[36] Also see Chapter 59 Standing (Abandonment).
Searching vehicles: If the arrestee was the driver or passenger in a vehicle, it may be searched only if “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”[37] Note, however, that if the vehicle will be towed or impounded, officers will ordinarily be able to conduct an inventory search[38] Also see Chapter 31 Vehicle Searches (Inventory Searches).
Searching homes (Chimel searches)
Arrest occurs inside the home: If the suspect was arrested inside his home, the search must be limited to places and things to which the arrestee had immediate access when the search occurred; e.g., under a bed on which the arrestee was lying,[39] inside a duffel bag at the foot of a bed on which the arrestee was lying.[40]
Searching others’ property: If an item was within the arrestee’s immediate control when the search occurred, officers may search it even if they knew it belonged to someone else.[41]
Searching other rooms: Officers may not routinely search beyond the room in which the arrest occurred,[42] except as follows:
Arrestee requests to enter another room: If the arrestee requested permission to go into another room to, for example, obtain clothing, officers may accompany him. See “Arrest outside; Arrestee wants to go inside,” above.
Arrestee near other room: In one California case, officers were permitted to search just inside a room when the suspect was arrested just outside the doorway.[43]
Arrest occurs outside: If the suspect was arrested outside his home but requested permission to enter (e.g., to get a jacket), and officers granted the request, they may accompany him and stay “literally at [his] elbow at all times.”[44] However, such a search will not be permitted if officers compelled the arrestee to go inside without good cause.[45]
Notes
[1] USSC: US v.
Robinson (1973) 414 US 218, 235 [“a search incident to the arrest
requires no additional justification”]; US v.
Chadwick (1977) 433 US 1, 15 [officers are not required “to
calculate the probability that weapons or destructible evidence may be
involved”]. CAL: In re Demetrius A. (1989) 208 CA3 1245,
1247. 9th CIR: US v. Osife (9C 2004) 398 F3
1143, 1145 [“courts are not to decide on a case-by-case basis
whether the arresting officers’ safety is in jeopardy or whether evidence
is in danger of destruction”]. OTHER: Mary Beth G.
v. City of Chicago (7C 1983) 723 F2 1263, 1269 [“a police
officer does not have to assess the likelihood that the individual
arrestee is possessing a weapon or concealing evidence”].
[2] USSC: US v.
Robinson (1973) 414 US 218, 234 [“The justification or reason for
the authority to search incident to a lawful arrest rests quite as much on
the need to disarm the suspect in order to take him into custody as it
does on the need to preserve evidence on his person for later use at
trial.”]; Knowles v. Iowa (1998) 525 US 113, 116
[“the two historical rationales for the ‘search incident to arrest’
exception [are] (1) the need to disarm the suspect in order to take him
into custody and (2) the need to preserve evidence for later use at
trial”]. NOTE: Re danger of arresting: See
Washington v. Chrisman (1982) 455 US 1, 7 [“Every
arrest must be presumed to present a risk of danger to the arresting
officer.”]; US v. Chadwick (1977) 433 US 1, 14 [“When
a custodial arrest is made, there is always some danger that the person
arrested may seek to use a weapon, or that evidence may be concealed or
destroyed.”]; US v. Arango (7C 1989) 879 F2 1501,
1505 [“It is the threat of arrest or the arrest itself which may trigger a
violent response—regardless of the nature of the offense which first drew
attention to the suspect.”]; State v. Murdock (Wis.
1990) 455 NW2 618, 624 [an arrest is a “tense and risky undertaking”].
[3] USSC: Rawlings v.
Kentucky (1980) 448 US 98, 111. CAL: P v.
Fay (1986) 184 CA3 882, 892 [“The crucial point is whether probable
cause to arrest existed prior to the search”].
[4] USSC: Rawlings v.
Kentucky (1980) 448 US 98, 111 [“Where the formal arrest followed
quickly on the heels of the challenged search of petitioner’s person, we
do not believe it particularly important that the search preceded the
arrest rather than vice versa.”]. CAL: In re
Jonathan M. (1981) 117 CA3 530, 536 [“Once there is probable cause
for an arrest it is immaterial that the search preceded the arrest.”];
P v. Limon (1993) 17 CA4 524, 538 [“An officer with probable
cause to arrest can search incident to the arrest before making the
arrest.”]; P v. Nieto (1990) 219 CA3 1275, 1278 [“it makes
no difference that the seizure came before the arrest as long as probable
cause for the arrest existed at the time the evidence was seized and a
contemporaneous arrest in fact occurred”]; P v. Avila (1997)
58 CA4 1069, 1076 [“it is unimportant whether a search incident to an
arrest precedes the arrest or vice versa”]. 9th CIR: US
v. Smith (9C 2004) 389 F3 944, 951 [“A search incident to
arrest need not be delayed until the arrest is effected.”].
[5] CAL: P v. Le
(1985) 169 CA3 186, 193; P v. Loudermilk (1987) 195
CA3 996.
[6] USSC: Whren v.
US (1996) 517 US 806, 812-13 [“[We have] never held, outside the
context of inventory search or administrative inspection, that an
officer’s motive invalidates objectively justifiable behavior under the
Fourth Amendment”].
[7] USSC: US v.
Robinson (1973) 414 US 218 [explaining justification for search,
Court noted the danger to officers “is far greater in the case of the
extended exposure which follows the taking of a suspect into custody,” (at
p. 234-35) especially because of the “attendant proximity, stress and
uncertainty.” (at p. 235, fn.5)]; Knowles v. Iowa
(1998) 525 US 113. CAL: P v. Macabeo (2016) 1 C5 1206, 1212;
[“defendant could have been arrested under federal law, [but] he was not
in fact taken into custody. Indeed, the People acknowledged during oral
argument that state law precluded officers from arresting Mr. Macabeo
under these circumstances. He was detained for failing to stop at a stop
sign, an infraction, and, except under circumstances not present here,
could only have been cited and released.”]; Pen. Code § 827.1(h).
OTHER: US v. Pacheco (10C 2018) 884 F3 1031, 1039 [“Pacheco
had already been arrested and removed from the house.”]; US
v. Jackson (7C 2004) 377 F3 715, 717 [“it is custody,
and not a stop itself, that makes a full search reasonable”]. NOTE:
Arrest for 647(f): Proposition 8 nullified the rule of
P v. Longwill (1975) 14 C3 943 that a person arrested for
public drunkenness cannot be searched incident to arrest until it was
determined that he would not be released after sobering up. See
P v. Boren (1987) 188 CA3 1171, 1175; P v.
Castaneda (1995) 35 CA4 1222, 1228-29.
[8] USSC: US v.
Robinson (1973) 414 US 218, 235; Gustafson v.
Florida (1973) 414 US 260, 265, fn.3. CAL: P v.
Hunt (1990) 225 CA3 498, 507 [Hunt claimed the officer probably
wouldn’t have taken him into custody for § 148.9 if the vehicle search had
been unproductive; the court responded, “No evidence supports defendant’s
speculation that the officer would not have bothered completing the
booking process had no contraband been found.”]; P v. Boren
(1987) 188 CA3 1171, 1177; P v. Sanchez (1985) 174 CA3 343,
348-49 [“the officer testified he fully intended to book appellant into
jail; he did not plan to release appellant”].
[9] CAL: In re
Demetrius A. (1989) 208 CA3 1245, 1248 [transport home.”]; In
re Charles C. (1999) 76 CA4 420, 424 [transport home]; P
v. Humberto O. (2000) 80 CA4 237 [transport to school]; In
re Ian C. (2001) 87 CA4 856, 860 [transport to curfew center];
P v. Breault (1990) 223 CA3 125, 132 [protective custody].
[10] CAL: P v. Macabeo (2016) 1
C5 1206, 1218 [“There is no exception for a search incident to
citation.”]; P v. Superior Court (Fuller) (1971) 14 CA3 935,
942 [“Although a traffic violator is technically under arrest during the
period immediately preceding his execution of a promise to appear, neither
he nor his vehicle may be searched on that ground alone.”]; Pugh
v. Superior Court (1970) 12 CA3 1184, 1187.
[11] USSC: Atwater v.
City of Lago Vista (2001) 532 US 318, 350; Washington
v. Chrisman (1982) 455 US 1 [minor in possession of
alcohol]; Gustafson v. Florida (1973) 414 US 260
[driving without a license]; US v. Robinson (1973)
414 US 218 [driving on a revoked license]. CAL: P v.
Boren (1987) 188 CA3 1171, 1175; P v. Castaneda
(1995) 35 CA4 1222, 1228 [search OK “even if the underlying
warrant was for a bailable offense”]. CAL: P v.
Hamilton (2002) 102 CA4 1311, 1317 [displaying false registration
tags] P v. Sanchez (1985) 174 CA3 343, 349 [drunk in
public]; P v. Boren (1987) 188 CA3 1171, 1177 [drunk in
public]; P v. Stoffle (1991) 1 CA4 1671, 1679 [traffic
warrant]; P v. McKay (2002) 27 C4 601, 619-25 [riding a
bicycle in the wrong direction]. 9th CIR: US v.
Osife (9C 2005) 398 F3 1143 [urinating in public].
[12] USSC: Atwater v.
City of Lago Vista (2001) 532 US 318 [it is not a violation of the
Fourth Amendment for an officer to make a warrantless custodial arrest for
a violation of a misdemeanor punishable by fine only]; Virginia
v. Moore (2008) 553 US 164. CAL: P v.
McKay (2002) 27 C4 601, 619 [if officers have probable cause, “a
custodial arrest—even one effected in violation of state arrest
procedures—does not violate the Fourth Amendment”]; P v.
Gomez (2004) 117 CA4 531, 539 [“It is undisputed [that the officer]
had probable cause to believe defendant violated [California’s seatbelt]
law. He thus had probable cause to arrest defendant on that basis.”].
OTHER: US v. Garcia (7C 2004) 376 F3 648, 650
[“police may make full custodial arrests for fine-only offenses”].
[13] CAL: P v. McKay
(2002) 27 C4 601, 618-19.
[14] USSC: Shipley v. California
(1969) 395 US 818, 819 [“a search can be incident to an arrest only if it
is substantially contemporaneous with the arrest and is confined to the
immediate vicinity of the arrest”]; Stoner v. California (1964) 376
US 483, 486 [“a search can be incident to an arrest only if it is
substantially contemporaneous with the arrest and is confined to the
immediate vicinity of the arrest”]; Vale v. Louisiana (1970) 399 US
30, 330.
[15] QUOTES FROM: Arizona v. Gant
(2009) 556 US 332, 339; Chimel v. California (1969) 395 US 752,
763. CAL: P v. Johnson (2018) 21 CA5 1026, 1037 [search not
incident to arrest because it was two blocks away from the site of the
arrest]. ALSO SEE: US v. Knapp (10C 2019) 917 F3 1161, 1165
[“Whether a search is ‘of the person’ or of the area with the arrestee’s
‘immediate control’ … is a critical distinction.”].
[16] USSC: Arizona v. Gant
(2009) 556 US 332, 343. CAL: P v. Leal (2009) 178 CA4 1051,
1060 [search of a chair unlawful because the arrestee had been moved from
it when the search occurred]. OTHER: US v. Knapp (10C 2019)
917 F3 1161, 1168 [the issue is “the arrestee’s ability to access weapons
or destroy evidence at the time of the search, rather than the time of the
arrest”].
[17] NOTE: Because handcuffs are not
“fail-safe,” it is arguable that handcuffing does not always preclude a
search incident to arrest. See US v. Sanders (5C 1993) 994 F2 200,
209 [“Handcuffs are a temporary restraining device; they limit but do not
eliminate a person’s ability to perform various acts… Albeit
difficult, it is by no means impossible for a handcuffed person to obtain
and use a weapon concealed on his person or within lunge reach.”];
US v. Shakir (3C 2010) 616 F3 315, 320 [“handcuffs are not
fail-safe”].
[18] OTHER: US v. Sanders (5C
1993) 994 F2 200, 209 [“Handcuffs are a temporary restraining device; they
limit but do not eliminate a person’s ability to perform various
acts… Albeit difficult, it is by no means impossible for a
handcuffed person to obtain and use a weapon concealed on his person or
within lunge reach”].
[19] USSC: Preston v.
US (1964) 376 US 364 367 [“Unquestionably, when a person is
lawfully arrested, the police have the right, without a search warrant, to
make a contemporaneous search of the person of the accused for weapons or
for the fruits of or implements used to commit the crime.”]; US
v. Robinson (1973) 414 US 218, 235 [officers may conduct “a
full search of the [arrestee]”]; Gustafson v. Florida
(1973) 414 US 260, 266; Chimel v. California (1969)
395 US 752, 762-63 [“When an arrest is made, it is reasonable for the
arresting officer to search the person arrested in order to remove any
weapons that the latter might seek to use in order to resist arrest or
effect his escape… In addition, it is entirely reasonable for the
arresting officer to search for and seize any evidence on the arrestee’s
person in order to prevent its concealment or destruction.”]. CAL:
P v. Harris (1980) 105 CA3 204, 213 [“an arrested
person and his belongings may be searched without a warrant both as
incident to the arrest”]; P v. Cressy (1996) 47 CA4 981, 988
[“Deputy Howe would have been derelict in his duties had he failed to
search defendant before putting him in his patrol car and transporting him
to jail.”]. OTHER: US v. Knapp (10C 2019) 917 F3 1161, 1166
[“Because of an arrestee’s ability to always access weapons concealed in
her clothing or pockets, an officer must necessarily search those areas”].
[20] USSC: US v.
Robinson (1973) 414 US 218, 227-28; Terry v.
Ohio (1968) 392 US 1, 17, fn.13 [“The officer must feel with
sensitive fingers every portion of the prisoner’s body. A thorough search
must be made of the prisoner’s arms and armpits, waistline and back, the
groin and area about the testicles, and entire surface of the legs down to
the feet.”]. CAL: P v. Dennis (1985) 172 CA3 287, 290
[a “full” search “is a greater intrusion than pat-down”].
[21] QUOTE FROM: US v.
Robinson (1973) 414 US 218, 227. USSC: US v.
Edwards (1974) 415 US 800; US v. Santana
(1976) 427 US 38, 43 [officers could lawfully order the arrestee to empty
her pockets]; Rawlings v. Kentucky (1980) 448 US 98.
CAL: In re Demetrius A. (1989) 208 CA3 1245; P
v. Dennis (1985) 172 CA3 287, 290; P v. Superior
Court (Saari) (1969) 2 CA3 197, 202; In re Jonathan M.
(1981) 117 CA3 530, 536; P v. Fay (1986) 184 CA3 882, 893.
9th CIR: US v. Williams (9C 2016) 846 F3 303, 312 [officers
may search “the arrestee’s person and the inside pockets of the arrestee’s
clothing”]. OTHER: US v. Brewer (8C 2010) 624
F3 900, 906 [search of pants pocket].
[22] QUOTE FROM: US v.
Robinson (1973) 414 US 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”]. CAL: P v.
Laiwa (1983) 34 C3 711, 726. OTHER: US v.
Dorlouis (4C 1997) 107 F3 248, 256; Schmidt v.
City of Lockport (ND Ill. 1999) 67 FS2 938, 944 [the search “went
beyond the full search authorized by the Court in Robinson“];
US v. Ford (ED Va. 2002) 232 FS2 625, 631 [officer
violated the Fourth Amendment when he “shoved his gloved hand into
defendant’s buttocks”].
[23] USSC: Illinois v.
Lafayette (1983) 462 US 640, 645 [“the interests supporting a
search incident to arrest would hardly justify disrobing an arrestee on the
street”]. OTHER: US v. Edwards (4C 2011) 666
F3 877, 883 [“While every strip search need not be conducted in a private
holding cell to adequately safeguard a suspect’s privacy interests, we
consider whether a sexually invasive search could have been viewed by
others, and whether it was in fact viewed by others, in our analysis of
the reasonableness of the search.”]; US v. McGhee (1C
2010) 627 F3 454, 458-59 [strip search in motel room was justified by
arrest for possession of sale, the discovery of marijuana in arrestee’s
shoes, and arrestee’s physical resistance]; US v.
Williams (7C 2000) 209 F3 940, 944 [“Williams was never disrobed or
exposed to the public. The search occurred at night, away from traffic and
neither officer saw anyone in the vicinity.”]; US v.
McKissick (10C 2000) 204 F3 1282, 1297, fn.6 [“Officer Patten
testified he did not remove Mr. Zeigler’s clothes during the search, but
he might have unzipped Mr. Zeigler’s pants after discovering a lump in Mr.
Zeigler’s crotch area that was inconsistent with his genitals.”]; US
v. Dorlouis (4C 1997) 107 F3 248, 256 [“The search did not
occur on the street subject to public viewing but took place in the privacy
of the police van.”].
[24] USSC: Riley v. California
(2014) 573 US 373, 403 [“Our answer to the question of what police must do
before searching a cell phone seized incident to an arrest is accordingly
simple—get a warrant.”]. CAL: P v. Macabeo (2016) 1 C5 1206,
1219 [“even if defendant had been properly arrested, a warrant was required
to search the phone”].
[25] USSC: Riley v. California
(2014) 573 US 373, 388 [“Both Riley and Wurie concede that officers could
have seized and secured their cell phones to prevent destruction of
evidence while seeking a warrant. That is a sensible concession.”]. OTHER:
US v. Henry (1C 2016) 827 F3 16, 28 [“the officers did exactly what
the Supreme Court [in Riley] suggested they do: seize the phones to
prevent destruction of evidence but obtain a warrant before searching the
phones”].
[26] CAL: Robey v. Superior Court
(2013) 56 C4 1218, 1233-34 [“Because there was no justification for an
immediate search of the package once it was seized, the police had no
derivative authority to search the package later at the police station
without a warrant.”]. 9th CIR: US v. Cook (9C 2015) 808 F3
1195, 199, fn.1 [“We do not read Gant’s holding as limited only to
automobile searches”]. OTHER: US v. Davis (4C 2021) 997 F3
191, 197 [“officers can conduct warrantless searches of non-vehicular
containers incident to a lawful arrest only when the arrestee is unsecured
and within reaching distance of the container at the time of the search”];
US v. Knapp (10C 2019) 917 F3 1161, 1168 [“Because Ms. Knapp’s
purse, which was not concealed under or within her clothing, was easily
capable of separation from her person, we hold that the arresting officers
had no authority to search its contents”]. NOTE: The searches in
the following cases were upheld but it is not clear whether they are still
good law in light of Arizona v. Gant (2009) 556 US 332:
US v. Robinson (1973) 414 US 218, 223 [cigarette package];
Gustafson v. Florida (1973) 414 US 260, 262 [cigarette package];
P v. Limon (1993) 17 CA4 524, 538 [“hide-a-key” box]; P v.
Aguilar (1985) 165 CA3 221, 225 [wallet]; P v. Methey (1991)
227 CA3 349, 358-59 [wallet]; P v. Loudermilk (1987) 195 CA3 996,
1005-6 [wallet]; P v. Sanchez (1985) 174 CA3 343, 348 [wallet];
P v. Flores (1979) 100 CA3 221, 230 [shoulder bag]; In re
Humberto O. (2000) 80 CA4 237, 243-44 [backpack]; P v.
Gutierrez (1984) 163 CA3 332, 335 [small cardboard box]; P v.
Gonzales (1989) 216 CA3 1185 [“cylindrical rolled up clear plastic
baggy”]; P v. Brown (1989) 213 CA3 187, 192 [pill bottle]; US v.
Cook (9C 2015) 797 F3 713, 718[search of arrestee’s backpack at his
feet]; US v. Nohara (9C 1993) 3 F3 1239, 1243 [bag]; US v.
Holzman (9C 1989) 871 F2 1496, 1504 [address book]; US v.
Rodriguez (7C 1993) 995 F2 776, 778 [address book]; US v.
Porter (4C 1983) 738 F2 622, 627 [carry-on bag]; US v. Schleis
(8C 1976) 543 F2 59, 62 [briefcase]; US v. Stephenson (8C 1986) 785
F2 214, 225 [briefcase]; US v. Litman (4C 1984) 739 F2 137, 139
[shoulder bag]; US v. Molinaro (7C 1989) 877 F2 1341, 1346-47
[address book].
[27] OTHER: US v.
Shakir (3C 2010) 616 F3 315, 321 [officers did not violate
Gant when they searched a gym bag at the feet of a handcuffed
arrestee because, “although he was handcuffed and guarded by two policemen,
Shakir’s bag was literally at his feet, so it was accessible if he had
dropped to the floor”].
[28] USSC: Chimel v.
California (1969) 395 US 752, 763 [“And the area into which an
arrestee might reach in order to grab a weapon or evidentiary items must,
of course, be governed by a like rule.”]. OTHER: US v.
Tejada (7C 2008) 524 F3 809, 811 [officers can search “the area
within grabbing distance”].
[29] OTHER: US v.
Ingram (NDNY 2001) 164 FS2 310, 314 [“The scope of the search is not
limited to the suspect’s person, but extends to the suspect’s ‘wingspan,’
or “the area from within which the arrestee might gain possession of a
weapon or destructible evidence.” ].
[30] USSC: Thornton v.
US (2004) 541 US 615, 621 [“nor is an arrestee less likely to
attempt to lunge for a weapon”].
[31] USSC: Washington v.
Chrisman (1982) 455 US 1, 7 [“There is no way for an officer to
predict reliably how a particular subject will react to arrest or the
degree of the potential danger.”]; US v. Chadwick
(1977) 433 US 1, 15 [officers are not required “to calculate the
probability that weapons or destructible evidence may be involved.”].
9th CIR: US v. McConney (9C 1984) 728 F2 1195,
1207 [“Chimel does not require the police to presume that an
arrestee is wholly rational.”]. OTHER: US v.
Lyons (DCC 1983) 706 F2 321, 330 [“searches have sometimes been
upheld even when hindsight might suggest that the likelihood of the
defendant reaching the area in question was slight”]; US v.
Tejada (7C 2008) 524 F3 809, 812 [“Handcuffed, lying face down on
the floor, and surrounded by police, he was unlikely to be able to make a
successful lunge for the entertainment center. But the police did not how
strong he was, and he seemed desperate”]; US v. Queen
(7C 1988) 847 F2 346, 354 [“Indeed, the Supreme Court—as well as several
courts of appeals, including our own—have upheld searches incident to
arrest where the possibility of an arrestee’s grabbing a weapon or
accessing evidence was at least as remote as in the situation before us.”
Citations omitted]; US v. Abdul-Saboor (DCC 1996) 85
F3 664, 670 [“A willful and apparently violent arrestee, faced with the
prospect of long-term incarceration, could be expected to exploit every
available opportunity”]; US v. Han (4C 1996) 74 F3
537, 542 [“Since Chimel, the Supreme Court has interpreted broadly
both the area under “immediate control’ and the likelihood of danger or
destruction of evidence.”]; US v. Lyons (DCC 1983)
706 F2 321, 330 [“the police must act decisively and cannot be expected to
make punctilious judgments regarding what is within and what is just
beyond the arrestee’s grasp”]; US v. Palumbo (8C
1984) 735 F2 1095, 1097 [“accessibility, as a practical matter is not the
benchmark. The question is whether the cocaine was in the area within the
immediate control of the arrestee”]; State v. Murdock
(Wis. 1990) 455 NW2 618, 626 [“we cannot require an officer to weigh the
arrestee’s probability of success in obtaining a weapon or destructible
evidence hidden within his or her immediate control”].
[32] QUOTE FROM: US v.
Queen (7C 1988) 847 F2 346, 353. OTHER: US v.
McCraney (6C 2012) 674 F3 614, 619-20 [an arrestee did not have
immediate access to his car when, although not handcuffed, he was standing
two or three feet from the rear bumper with three officers standing around
him].
[33] QUOTE FROM: US v.
Lyons (DCC 1983) 706 F2 321, 330. OTHER: US v.
Shakir (3C 2010) 616 F3 315, 321 [“Although it would have been more
difficult for Shakir to open the bag and retrieve a weapon while
handcuffed, we do not regard this possibility as remote enough to render
unconstitutional the search incident to arrest.”].
[34] OTHER: US v.
Davis (8C 2009) 569 F3 813, 817 [“Although Davis had been detained,
three unsecured and intoxicated passengers were standing around a vehicle
redolent of recently smoked marijuana.”]; US v.
Goodwin-Bey (8C 2009) 584 F3 1117 [officers had reasonable suspicion
to believe that one of the occupants had recently displayed a firearm”];
US v. Shakir (3C 2010) 616 F3 315, 319 [court noted
that the officers “had reason to believe that one or more of Shakir’s
accomplices was nearby”].
[35] CAL: P v. Pressley
(1966) 242 CA2 555, 559-60 [“the actual arrest was not made until
defendant was under restraint and that his flight and struggle had carried
him some 100 feet away. But we do not think that this is controlling. The
process of arrest had begun at the door”]; P v. Williams
(1967) 67 C2 226, 229 [“Of no legal significance is the fact that
defendant, through his efforts to escape, succeeded in separating himself
from the car by a distance of about one block.”]; P v.
Thompson (1972) 25 CA3 132, 138, 141 [defendant was arrested after
he placed trunks containing marijuana in his car and started walking away;
search of car upheld as incident to arrest].
[36] UCCS: Whren v. US (1996)
517 US 806, 811, fn.1 [“An inventory search is the search of property
lawfully seized and detained, in order to ensure that it is harmless, to
secure valuable items (such as might be kept in a towed car), and to
protect against false claims of loss or damage.”]; Cooper v.
California (1967) 386 US 58, 61-62 [“It would be unreasonable to hold
that the police, having to retain the car in their custody for such a
length of time, had no right, even for their own protection, to search
it.”]. CAL: P v. Topp (1974) 40 CA3 372, 378 [officer had
authority “to search the person of the defendant which would include the
jacket that defendant indicated he wished to take with him to jail.”].
9th CIR: US v. Garcia (9C 2000) 205 F3 1182. OTHER:
US v. Lyons (DCC 1983) 706 F2 321, 331 [ok to search jacket “for
weapons before giving it to him”]. NOTE: We are aware of the Tenth
Circuit’s opinion in US v. Knapp (10C 2019) 917 F3 1161 in which
the court ruled that a search of an arrestee’s purse was unlawful because
she had been separated from it and, therefore, she was incapable of
accessing it when the search occurred. The propriety of an inventory
search was not raised.
[37] QUOTE FROM: Arizona v. Gant
(2009) 556 US 332, 343.
[38] UCCS: Whren v. US (1996)
517 US 806, 811, fn.1 [“An inventory search is the search of property
lawfully seized and detained, in order to ensure that it is harmless, to
secure valuable items (such as might be kept in a towed car), and to
protect against false claims of loss or damage.”]; Cooper v.
California (1967) 386 US 58, 61-62 [“It would be unreasonable to hold
that the police, having to retain the car in their custody for such a
length of time, had no right, even for their own protection, to search
it.”]. CAL: P v. Topp (1974) 40 CA3 372, 378 [officer had
authority “to search the person of the defendant which would include the
jacket that defendant indicated he wished to take with him to jail.”].
9th CIR: US v. Garcia (9C 2000) 205 F3 1182. OTHER:
US v. Lyons (DCC 1983) 706 F2 321, 331 [ok to search jacket “for
weapons before giving it to him”].
[39] CAL: P v.
King (1971) 5 C3 458, 463; P v. Spencer (1972)
22 CA3 786, 797; CAL: P v. Summers (1999) 73 CA4 288, 290 [“The
justification for Chimel searches is officer safety, not officer
opportunism, i.e., a postarrest license to embark on a general search.”];
Guidi v. Superior Court (1973) 10 C3 1, 7 [“the arresting officers in
clear derogation of petitioners’ rights proceeded after the discovery of
the hashish to search the entire apartment”]. OTHER: State v.
Murdock (Wis. 1990) 455 NW2 618, 622 [“The Chimel rule did not
create the search incident to arrest doctrine, but instead limited its
scope. Previous cases had permitted full-scale searches of entire rooms,
even an entire four-room apartment, under the guise of search incident to
arrest.”].
[40] CAL: P v. Arvizu
(1970) 12 CA3 726, 729.
[41] CAL: P v. Prance
(1991) 226 CA3 1525, 1533 [“Nothing in [Chimel and Belton]
requires that the areas searched within the reach of the arrestee must
themselves be his or her personal property.”]; P v.
Mitchell (1995) 36 CA4 672, 675.
[42] USSC: Chimel v.
California (1969) 395 US 752, 763 [“There is no comparable
justification, however, for routinely searching any room other than that in
which an arrest occurs”]. CAL: P v. Bagwell (1974) 38
CA3 127, 131 [“Recent California cases construing Chimel have also
emphasized that routine searches of rooms other than that in which
an arrest is made will not be tolerated. They have made it clear, however,
that the facts and circumstances of the case may nevertheless permit entry
of other parts of the house.”]; P v. Jordan (1976) 55 CA3
965, 967 [“Routine searches cannot extend beyond the room in which the
suspect is arrested, but the facts and circumstances of the case may
nevertheless permit entry of other parts of the house.”]; Guidi
v. Superior Court (1973) 10 C3 1, 7 [kitchen was not within
arrestee’s immediate control when he was arrested in the living room];
Guevara v. Superior Court (1970) 7 CA3 531
[kitchen was not within arrestee’s immediate control when he was arrested
in the living room]; P v. Block (1971) 6 C3 239, 243 [cannot
search upstairs when arrest occurred downstairs]. OTHER: US
v. Neely (5C 2003) 345 F3 366, 371-72 [search of clothing
removed at hospital was not incident to arrest that occurred “in a
completely different area of the hospital”].
[43] CAL: P v. Maier
(1991) 226 CA3 1670, 1675.
[44] QUOTE FROM: Washington
v. Chrisman (1982) 455 US 1, 6. CAL: P v.
Breault (1990) 223 CA3 125, 133 [“Chrisman does not require
a showing of exigent circumstances. [The officer] lawfully accompanied
Emily into the house and properly seized the marijuana [in plain view].”];
Curry v. Superior Court (1970) 7 CA3 836, 849 [search
permitted because arrestee was given permission to enter the room to obtain
a dress]. OTHER: US v. Reid (8C 2014) 769 F3 990, 992 [“When
an arrestee chooses to reenter her home for her own convenience, it is
reasonable for officers to accompany her and to monitor her movements.”];
US v. Nascimento (1C 2007) 491 F3 25, 50 [“it was not
inappropriate for the police to escort Nascimento to his bedroom in order
that he might get dressed”]; US v. Varner (8C 2007)
481 F3 569; US v. Garcia (7C 2004) 376 F3 648, 651
[“It would have been folly for the police to let [the arrestee] enter the
home and root about [for identification] unobserved.”]; US
v. Abdul-Saboor (DCC 1996) 85 F3 664, 670 [“Abdul-Saboor had
specifically requested entry to the area searched”]; US v.
Mason (DCC 1975) 523 F2 1122, 1125-26 [“When appellant requested
his leather jacket from the closet and stepped forward to a point within
three or four feet of the closet before he was stopped, he brought within
his immediate control the area where the gun was concealed in the
suitcase.”]. ALSO SEE: US v. Scroggins (5C
2010) 599 F3 433, 442 [arrestee consented when she agreed that officers
could accompany her inside to obtain clothing].
[45] USSC: Shipley v.
California (1969) 395 US 818, 820. CAL: P v.
Mendoza (1986) 176 CA3 1127, 1132 [“Mendoza was taken from the
bathroom into the presence of the shoulder bag. If the Chimel rule
could be so easily satisfied, the officers would only have to force the
defendant to accompany them while they proceeded to examine the entire
contents of the premises.”]; Eiseman v. Superior Court
(1971) 21 CA3 342, 350 [“The police should not be allowed to extend the
scope of [the search] by having a person under arrest move around the room
at their request.”]. 9th CIR: US v. Whitten
(9C 1983) 706 F2 1000, 1016. OTHER: US v. Mason
(DCC 1975) 523 F2 1122, 1126 [“Of course, Chimel does not permit
the arresting officers to lead the accused from place to place and use his
presence in each location to justify a search incident to the arrest.”].