Search Incident to Arrest Doctrine
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The common-law rule permitting searches of the person of an arrestee as an incident to the arrest has occasioned little controversy in the Court.1 The Court has even upheld a search incident to an illegal (albeit not unconstitutional) arrest.2 The dispute has centered around the scope of the search. Because it was the stated general rule that the scope of a warrantless search must be strictly tied to and justified by the circumstances that rendered its justification permissible, and because it was the rule that the justification of a search of the arrestee was to prevent destruction of evidence and to prevent access to a weapon,3 it was argued to the court that a search of the person of the defendant arrested for a traffic offense, which discovered heroin in a crumpled cigarette package, was impermissible, because there could have been no destructible evidence relating to the offense for which he was arrested and no weapon could have been concealed in the cigarette package. The Court rejected this argument, ruling that “no additional justification” is required for a custodial arrest of a suspect based on probable cause.4
The Court has disavowed a case-by-case evaluation of searches made post-arrest5 and instead has embraced categorical evaluations as to post-arrest searches. Thus, in Riley v. California,6 the Court declined to extend the holding of United States v. Robinson to the search of the digital data contained in a cell phone found on an arrestee. Specifically, the Court distinguished a search of cell phones, which contain vast quantities of personal data, from the limited physical search at issue in Robinson.7 Focusing primarily on the rationale that searching cell phones would prevent the destruction of evidence, the government argued that cell phone data could be destroyed remotely or become encrypted by the passage of time. The Court, however, both discounted the prevalence of these events and the efficacy of warrantless searches to defeat them. Rather, the Court noted that other means existed besides a search of a cell phone to secure the data contained therein, including turning the phone off or placing the phone in a bag that isolates it from radio waves.8 Because of the more substantial privacy interests at stake when digital data is involved in a search incident to an arrest and because of the availability of less intrusive alternatives to a warrantless search, the Court in Riley concluded that, as a “simple” categorical rule, before police can search a cell phone incident to an arrest, the police must “get a warrant.” 9
Two years after Riley, the Court again crafted a new brightline rule with respect to searches following an arrest in another “situation that could not have been envisioned when the Fourth Amendment was adopted.” 10 In Birchfield v. North Dakota, the Court examined whether compulsory breath and blood tests administered in order to determine the blood alcohol concentration (BAC) of an automobile driver, following the arrest of that driver for suspected “drunk driving,” are unreasonable under the search incident to arrest exception to the Fourth Amendment’s warrant requirement.11 In examining laws criminalizing the refusal to submit to either a breath or blood test, similar to Riley, the Court relied on a general balancing approach used to assess whether a given category of searches is reasonable, weighing the individual privacy interests implicated by such tests against any legitimate state interests.12 With respect to breath tests, the Birchfield Court viewed the privacy intrusions posed by such tests as “almost negligible” in that a breath test is functionally equivalent to the process of using a straw to drink a beverage and yields a limited amount of useful information for law enforcement agents.13 In contrast, the Court concluded that a mandatory blood test raised more serious privacy interests,14 as blood tests pierce the skin, extract a part of the subject’s body, and provide far more information than a breathalyzer test.15 Turning to the state’s interest in obtaining BAC readings for persons arrested for drunk driving, the Birchfield Court acknowledged the government’s “paramount interest” in preserving public safety on highways, including the state’s need to deter drunk driving from occurring in the first place through the imposition of criminal penalties for failing to cooperate with drunk driving investigations.16 Weighing these competing interests, the Court ultimately concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving because the “impact of breath tests on privacy is slight,” whereas the “need for BAC testing is great.” 17 In so doing, the Court rejected the alternative of requiring the state to obtain a warrant prior to the administration of a BAC breath test, noting (1) the need for clear, categorical rules to provide police adequate guidance in the context of a search incident to an arrest and (2) the potential administrative burdens that would be incurred if warrants were required prior to every breathalyzer test.18 Nonetheless, the Court reached a “different conclusion” with respect to blood tests, finding that such tests are “significantly more intrusive” and their “reasonability must be judged in light of the availability of the less intrusive alternative of a breath test.” 19 As a consequence, the Court held that while a warrantless breath test following a drunk-driving arrest is categorically permissible as a reasonable search under the Fourth Amendment, a warrantless blood test cannot be justified by the search incident to arrest doctrine.20
However, the Justices have long found themselves in disagreement about the scope of the search incident to arrest as it extends beyond the person to the area in which the person is arrested—most commonly either his premises or his vehicle. Certain early cases went both ways on the basis of some fine distinctions,21 but in Harris v. United States,22 the Court approved a search of a four-room apartment pursuant to an arrest under warrant for one crime, where the search turned up evidence of another crime. A year later, in Trupiano v. United States,23 a raid on a distillery resulted in the arrest of a man found on the premises and a seizure of the equipment; the Court reversed the conviction because the officers had had time to obtain a search warrant and had not done so. “A search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest.” 24
The Court overruled Trupiano in United States v. Rabinowitz,25 in which officers had arrested the defendant in his one-room office pursuant to an arrest warrant and proceeded to search the room completely. The Court observed that the issue was not whether the officers had the time and opportunity to obtain a search warrant but whether the search incident to arrest was reasonable. Though Rabinowitz referred to searches of the area within the arrestee’s “immediate control,” 26 it provided no standard by which this area was to be determined, and extensive searches were permitted under the rule.27
In Chimel v. California,28 however, a narrower view was asserted, the primacy of warrants was again emphasized, and a standard by which the scope of searches pursuant to arrest could be ascertained was set out. “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. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. 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. 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. A gun on a table or in a drawer in front of someone who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”
“There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.” 29
Although the viability of Chimel had been in doubt for some time as the Court refined and applied its analysis of reasonable and justifiable expectations of privacy,30 it has in some but not all contexts survived the changed rationale. Thus, in Mincey v. Arizona,31 the Court rejected a state effort to create a “homicide-scene” exception for a warrantless search of an entire apartment extending over four days. The occupant had been arrested and removed and it was true, the Court observed, that a person legally taken into custody has a lessened right of privacy in his person, but he does not have a lessened right of privacy in his entire house. And, in United States v. Chadwick,32 emphasizing a person’s reasonable expectation of privacy in his luggage or other baggage, the Court held that, once police have arrested and immobilized a suspect, validly seized bags are not subject to search without a warrant.33 Police may, however, in the course of jailing an arrested suspect, conduct an inventory search of the individual’s personal effects, including the contents of a shoulder bag, since “the scope of a station-house search may in some circumstances be even greater than those supporting a search immediately following arrest.” 34
Chimel has, however, been qualified by another consideration. Not only may officers search areas within the arrestee’s immediate control in order to alleviate any threat posed by the arrestee, but they may extend that search if there may be a threat posed by “unseen third parties in the house.” A “protective sweep” of the entire premises (including an arrestee’s home) may be undertaken on less than probable cause if officers have a “reasonable belief,” based on “articulable facts,” that the area to be swept may harbor an individual posing a danger to those on the arrest scene.35
Stating that it was “in no way alter[ing] the fundamental principles established in the Chimel case,” the Court in New York v. Belton36 held that police officers who had made a valid arrest of the occupant of a vehicle could make a contemporaneous search of the entire passenger compartment of the automobile, including containers found therein. Believing that a fairly simple rule understandable to authorities in the field was desirable, the Court ruled “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].’” 37
Belton was “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” 38 In Arizona v. Gant,39 however, the Court disavowed this understanding of Belton40 and held that “[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of arrest.” 41
- Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30 (1925).
- Virginia v. Moore, 128 S. Ct. 1598 (2008) (holding that, where an arrest for a minor offense is prohibited by state law, the arrest will not violate the Fourth Amendment if it was based on probable cause).
- Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California, 395 U.S. 752, 762, 763 (1969). The Court, in Birchfield v. North Dakota, explained that the precedent allowing for a warrantless search of an arrestee in order to prevent the destruction of evidence applies to both evidence that could be actively destroyed by a suspect and to evidence that can be destroyed due to a natural process, such as the natural dissipation of the alcohol content in a suspect’s blood. 136 S. Ct. 2160, 2182–83 (2016).
- United States v. Robinson, 414 U.S. 218, 235 (1973). See also id. at 237–38 (Justice Powell concurring). The Court applied the same rule in Gustafson v. Florida, 414 U.S. 260 (1973), involving a search of a motorist’s person following his custodial arrest for an offense for which a citation would normally have issued. Unlike the situation in Robinson, police regulations did not require the Gustafson officer to take the suspect into custody, nor did a departmental policy guide the officer as to when to conduct a full search. The Court found these differences inconsequential, and left for another day the problem of pretextual arrests in order to obtain basis to search. Soon thereafter, the Court upheld conduct of a similar search at the place of detention, even after a time lapse between the arrest and search. United States v. Edwards, 415 U.S. 800 (1974).
- In this vein, the search incident to arrest exception to the warrant requirement differs from other exceptions to the warrant requirement, such as the exigent circumstances exception. See Birchfield, 136 S. Ct. at 2174 (noting that while “other exceptions to the warrant requirement ‘apply categorically’,” the exigent circumstances exception to the warrant requirement applies on a case-by-case basis (quoting Missouri v. McNeely, 569 U.S. 141, 150 n.3 (2013))).
- 573 U.S. 373 (2014).
- “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person.” Id. at 393.
- Id. at 390.
- Id. at 403.
- See Birchfield, 136 S. Ct. at 2176.
- Id. at 2176.
- Id. at 2176–78. The Court disclaimed a criminal defendant’s possessory interest in the air in his lungs, as air in one’s lungs is not a part of one’s body and is regularly exhaled from the lungs as a natural process. Id. at 2177.
- “Blood tests are a different matter.” Id. at 2178.
- Id. at 2177–78.
- Id. at 2178–79.
- Id. at 2184.
- Id. at 2179–81. The Birchfield Court also rejected “more costly” and previously tried alternatives to penalties for refusing a breath test, such as sobriety checkpoints, ignition interlocks, and the use of treatment programs. Id. at 2182–83.
- Id. at 2184. In so doing, the Court rejected the argument that warrantless blood tests are needed as an alternative to warrantless breath tests to detect impairing substances other than alcohol or to obtain the BAC of an unconscious or uncooperative driver. Id. at 2184. In such situations, the Court reasoned that the state could obtain a warrant for the blood test, or in the case of an uncooperative driver, prosecute the defendant for refusing to undergo the breath test. Id. at 2184–85.
- Id. at 2186–87.
- Compare Marron v. United States, 275 U.S. 192 (1927), with Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931), and United States v. Lefkowitz, 285 U.S. 452 (1932).
- 331 U.S. 145 (1947).
- 334 U.S. 699 (1948).
- 334 U.S. at 708.
- 339 U.S. 56 (1950).
- 339 U.S. at 64.
- Cf. Chimel v. California, 395 U.S. 752, 764–65 & n.10 (1969). But, in Kremen v. United States, 353 U.S. 346 (1957), the Court held that the seizure of the entire contents of a house and the removal to F.B.I. offices 200 miles away for examination, pursuant to an arrest under warrant of one of the persons found in the house, was unreasonable. In decisions contemporaneous to and subsequent to Chimel, applying pre-Chimel standards because that case was not retroactive, Williams v. United States, 401 U.S. 646 (1971), the Court has applied Rabinowitz somewhat restrictively. See Von Cleef v. New Jersey, 395 U.S. 814 (1969), which followed Kremen; Shipley v. California, 395 U.S. 818 (1969), and Vale v. Louisiana, 399 U.S. 30 (1970) (both involving arrests outside the house with subsequent searches of the house); Coolidge v. New Hampshire, 403 U.S. 443, 455–57 (1971). Substantially extensive searches were, however, approved in Williams v. United States, 401 U.S. 646 (1971), and Hill v. California, 401 U.S. 797 (1971).
- 395 U.S. 752 (1969).
- 395 U.S. at 762–63.
- See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 492, 493, 510 (1971), in which the four dissenters advocated the reasonableness argument rejected in Chimel.
- 437 U.S. 385, 390–91 (1978). Accord, Flippo v. West Virginia, 528 U.S. 11 (1999) (per curiam).
- 433 U.S. 1 (1977). Defendant and his luggage, a footlocker, had been removed to the police station, where the search took place.
- If, on the other hand, a sealed shipping container had already been opened and resealed during a valid customs inspection, and officers had maintained surveillance through a “controlled delivery” to the suspect, there is no reasonable expectation of privacy in the contents of the container and officers may search it, upon the arrest of the suspect, without having obtained a warrant. Illinois v. Andreas, 463 U.S. 765 (1983).
- Illinois v. LaFayette, 462 U.S. 640, 645 (1983) (inventory search) (following South Dakota v. Opperman, 428 U.S. 364 (1976)). Similarly, an inventory search of an impounded vehicle may include the contents of a closed container. Colorado v. Bertine, 479 U.S. 367 (1987). Inventory searches of closed containers must, however, be guided by a police policy containing standardized criteria for exercise of discretion. Florida v. Wells, 495 U.S. 1 (1990).
- Maryland v. Buie, 494 U.S. 325, 334 (1990). This “sweep” is not to be a full-blown, “top-to-bottom” search, but only “a cursory inspection of those spaces where a person may be found.” Id. at 335–36.
- 453 U.S. 454, 460 n.3 (1981).
- 453 U.S. at 460 (quoting Chimel v. California, 395 U.S. 752, 763 (1969)). In this particular instance, Belton had been removed from the automobile and handcuffed, but the Court wished to create a general rule removed from the fact-specific nature of any one case. “‘Container’ here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.” 453 U.S. at 460–61 n.4.
- Arizona v. Gant, 556 U.S. 332, 341 (2009).
- 556 U.S. 332 (2009).
- “To read Belton as authorizing a vehicle search incident to every recent occupant's arrest would . . . untether the rule from the justifications underlying the Chimel exception . . . .” 556 U.S. at 343.
- 556 U.S. 332, 351 (2009). Justice Alito, in a dissenting opinion joined by Chief Justice Roberts and Justice Kennedy and in part by Justice Breyer, wrote that “there can be no doubt that” the majority had overruled Belton. 556 U.S. at 356.
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