SEARCH INCIDENT TO ARREST
The Basis for Search Incident to Arrest
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.
An Exception to the Warrant Requirement
A search incident to a lawful arrest has been recognized as an exception to the warrant requirement since 1914. See Weeks v. United States, 232 U.S. 383. While Weeks approved of warrantless searches of the person of the arrestee, Marron v. United States, 275 U.S. 192 (1927) enlarged the permitted scope of a search incident to an arrest to include the entire house. The Court approved such an expansive view of the search incident to arrest in United States v. Rabinowitz, 339 U.S. 56 (1950) where the police were permitted to search the entire premises which the suspect occupied at the time of the arrest.
Limitations on Post-Arrest Searches
In 1969, with changes in Court justices, the Court placed severe restrictions on the scope of a search incident to arrest. See Chimel v. California, 395 U.S. 752 (1969), This Chapter. In Chimel, the spouse of defendant permitted arresting officers to wait for defendant to arrive home from work. Following his arrest, the officers conducted a warrantless full search of Chimel's home and seized some stolen coins. The Chimel Court restricted the area of a search incident to an arrest by limiting the search to the area under the defendant's immediate dominion and control (the "lunge area"). The portions of the home which remained beyond Chimel's immediate control could not be lawfully searched as incident to the arrest. To search further without additional legal justification would constitute an unreasonable search under the Fourth Amendment.
Under Chimel, the search may not be used as a pretext for a general search of the area around the arrestee, but must be directed to the discovery of weapons which could be used to frustrate the arrest and to the disclosure of readily destructible evidence. Generally the search includes a complete search of the arrestee, clothing, articles closely associated with the person of the arrestee, and the area within the arrestee's immediate dominion and control. The search normally may not be conducted prior to the actual arrest and generally may not take place a significant time following arrest.
In applying the principle in a traffic case, the Court extended the concept of search incident to arrest to situations where a full custody arrest has been made. The Court approved the use of a search incident to arrest under circumstances where the arrestee was not suspected of possessing any evidence of the crime for which he was arrested. United States v. Robinson, 414 U.S. 218 (1973), This Chapter. In most traffic situations, there is a low probability that the offender will attempt to injure the officer or be in a situation to destroy evidence of the traffic offense. Nevertheless, a full search incident to arrest of the arrestee's person and of the interior of the passenger compartment is reasonable to protect the officer and to prevent any other evidence from being destroyed. Not only may law enforcement officials search the interior of the motor vehicle, a search of the contents of any containers within the vehicle has been approved as reasonable. See New York v. Belton, 453 U.S. 454 (1981). Belton sanctioned the search of containers and the interior of the vehicle even where the defendant has been removed some distance and the automobile is no longer within the arrestee's immediate dominion and control. The Belton theory does not permit a search of the trunk of the vehicle unless probable cause to search the trunk arises or some other theory permits the search.
While moving the arrestee away from the scene of the vehicle arrest does prevent the interior of the vehicle from being searched, allowing the arrestee to voluntarily move around the home may give rise to searches of additional "new" lunge areas. For example, where a person under arrest has been permitted to go to a bedroom to dress, a search for weapons in the lunge area, the area of immediate dominion and control, has been permitted. See United States v. Manarite, 314 F. Supp. 607 (1970), Aff'd, 448 F.2d 583, cert. denied, 404 U.S. 947 (1971). However, a limitation on the movable lunge area exists where police intentionally take an arrestee on a tour of the home for the purpose of searching areas which would not otherwise be subject to a search incident to a lawful arrest.
While police may not take the arrestee throughout the home to enhance the lunge area, police may conduct "protective sweeps" in connection with an arrest inside a home. See Maryland v. Buie, 494 U.S. 325 (1990), This Chapter. Police possessed an arrest warrant for Buie and a cohort who had been suspected of armed robbery. While in the process of arresting Buie at his home, one officer entered the basement to conduct a "protective sweep" in order to neutralize any opposition which might have been located there. In the process of securing the basement, one officers seized incriminating evidence. Buie was remanded to determine whether police have articulable facts to believe that other dangerous persons might have been present.
The "protective sweep" is a quick, but limited search of the premises conducted to protect the security of the officers have specific and articulable facts that other persons may be present and pose a danger to the police. The sweep may only extend to areas of the premises where people may be hiding but does not include medicine chests, kitchen cabinets, or personal effects located some distance from the arrestee.
The admissibility into evidence of objects seized under a search incident to arrest requires that the arrest have been conducted lawfully. If a court later rules that probable cause for the arrest was absent or that the particular arrest required the use of a warrant, the evidence and derivative evidence may not be used for the purpose of proving guilt unless some other theory supports the search and seizure. See Mapp v. Ohio, 367 U.S. 643 (1961) and Wong Sun v. United States, 371 U.S. 471 (1963).
Search Incident to Lawful Arrest: The Requirements
CHIMEL v. CALIFORNIA, Supreme, Court of the United States (1969)395 U.S. 752, 89 S.Ct. 2034
FACTS:
On the afternoon of September 13, 1965, several police officers arrived at the home of petitioner Ted Chimel with a warrant for his arrest for a coin shop burglary. Chimel's spouse answered the door and informed police that petitioner was not at home. Honoring a police request that they might come inside, Mrs. Chimel invited them to enter. A short time later, petitioner arrived home from work, and he was placed under arrest.
When the officers requested permission to "look around" the house, Chimel refused and was advised that a search of his home would be undertaken as incident to his arrest. The warrantless search revealed items which had been taken from the coin shop burglary. In many instances the police had Mrs. Chimel open drawers and show various objects rather than personally go through the contents of the bedroom storage areas.
At petitioner Chimel's two-count burglary trial the evidence was introduced against him despite his contention that the arrest warrant was invalid. The California trial court agree that the arrest warrant was invalid, but concluded that since the arresting officers acted in good faith and that arrest probable cause did exist, the arrest was lawful as was the subsequent search incident to arrest. The California appellate courts affirmed on this reasoning. Pursuant to Chimel's petition, the Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Absent exigent circumstances, may law enforcement officials conduct a complete search of an arrestee's home on the justification that the search was conducted as incident to the arrest of the occupier of the home?
HELD: No.
RATIONALE:
Mr. Justice STEWART delivered the opinion of the Court.
* * * Approval of a warrantless search incident to a lawful arrest seems first to have been articulated by the Court in 1914 as dictum in Weeks v. United States, 232 U.S. 383, in which the Court stated:
"What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits of evidences of crime." Id., at 392,34 S.Ct., at 344.
That statement made on reference to any right to search the place where an arrest occurs, but was limited to a right to search the "person." Eleven years later the case of Carroll v. United States, 267 U.S. 132, brought the following embellishment of the Weeks statement:
When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution." Id., at 158.
Still, that assertion too was far from a claim that the "place" where one is arrested may be searched so long as the arrest is valid.
* * *
In Trupiano v. United States, 334 U.S. 699, agents raided the site of an illicit distillery, saw one of several conspirators operating the still, and arrested him, contemporaneously "seiz[ing] the illicit distillery." (Citation omitted.) The Court held that the arrest and others made subsequently had been valid, but that the unexplained failure of the agents to procure a search warrant - in spite of the fact that they had had more than enough time before the raid to do so - rendered the search unlawful. The opinion stated:
It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable. * * * This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities. * * * To provide the necessary security against unreasonable intrusions upon the private lives of individuals, the framers of the Fourth Amendment required adherence to judicial processes wherever possible. And subsequent history has confirmed the wisdom of that requirement.
* * * "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." Id., at 705, 708, 68 S.Ct. at 1232, 1234.
In 1950, two years after Trupiano, came United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the decision upon which California primarily relies in the case now before us. In Rabinowitz, federal authorities had been informed that the defendant was dealing in stamps bearing forged overprints. On the basis of that information they secured a warrant for his arrest, which they executed at his one-room business office. At the time of the arrest, the officers "searched the desk, safe, and file cabinets in the office for about an hour and a half," id., at 59, 70 S.Ct., at 432, and seized 573 stamps forged overprints. The stamps were admitted into evidence at the defendant's trial, and this Court affirmed his conviction, rejecting the contention that the warrantless search had been unlawful.
* * *
Rabinowitz has come to stand for the proposition, inter alia, that a warrantless search, "incident to a lawful arrest" may generally extend to the area that is considered to be in the "possession" or under the "control" of the person arrested. And it was on the basis of that proposition that the California courts upheld the search of the petitioner's entire house in this case. That doctrine however, at least in the broad sense in which it was applied by the California courts in this case, can withstand neither historical nor rational analysis.
* * *
Only last term in Terry v. Ohio, 392 U.S. 1, we emphasized that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure," (citation omitted), and that "[t]he scope of [a] search must be strictly tied to and justified by the circumstances which rendered its initiation permissible." (Citation omitted.) The search undertaken by the officer in that "stop and frisk" case was sustained under that test, because it was not more than a "protective * * * search for weapons." (Citation omitted.) But in a companion case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 29 L.Ed.2d 917, we applied the same standard to another set of facts and reached a contrary result, holding that a policeman's action in thrusting his hand into a suspect's pocket had been neither motivated by nor limited to the objective of protection. Rather, the search had been made in order to find narcotics, which were in fact found.
A similar analysis underlies the "search incident to arrest" principle, and marks its proper extent. 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, its 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 one 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. The "adherence to judicial processes" mandated by the Fourth Amendment requires no less.
This is the principle that underlay our decision in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). In that case three men had been arrested in a parked car, which later had been towed to a garage and searched by police. We held the search to have been unlawful under the Fourth Amendment despite the contention that it had been incidental to a valid arrest.
* * *
It is argued in the present case that is "reasonable" to search a man's house when he is arrested in it. But that argument is founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. It is not easy to explain why, for instance, it is less subjectively "reasonable" to search a man's house when he is arrested on his front lawn - or just down the street - than it is when he happens to be in the house at the time of arrest. As Mr. Justice Frankfurter put it:
"To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an `unreasonable search' is forbidden - that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response." United States v. Rabinowitz, 339 U.S., at 83, 70 S.Ct., at 443 (dissenting opinion).
* * *
The petitioner correctly points out that one result of decisions such as Rabinowitz and Harris is to give law enforcement officials the opportunity to engage in searches not justified by probable cause, by the simple expedient of arranging to arrest suspects at home rather than elsewhere. We do not suggest that the petitioner is necessarily correct in his assertion that such strategy was utilized here, but the fact remains that had he been arrested earlier in the day, at his place of employment rather than at home, no search of his house could have been made without a search warrant. In any event, even apart from the possibility of such police tactics, the general point so forcefully made by Judge Learned Hand in United States v. Kirschenblatt, 2 Cir., 16 F.2d 202, 51 A.L.R. 416, remains:
"After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one's papers are safe only so long as one is not at home." Id., at 203.
Rabinowitz and Harris have been the subject of critical commentary for many years, and have been relied upon less and less in our own decisions. It is time, for the reasons we have stated, to hold that on their own facts, and insofar as the principles they stand for are inconsistent with those that we have endorsed today, they are no longer to be followed.
Application of sound Fourth Amendment principles to the facts of this case produces a clear result. The search here went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, "unreasonable" under the Fourth and Fourteenth Amendments, and the petitioner's conviction cannot stand.
Reversed.
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Notes
1. The legal right to search incident to an arrest does not depend on the existence of probable cause for a search; the search is considered reasonable under the Fourth Amendment because the officer has a need to seize any evidence on the arrestee and to prevent the person in custody from reaching to obtain a weapon which might be located within the "lunge area."
2. Chimel involved a search following an arrest within the arrestee's home but the same principle was applied to an arrest made outside the home and a search of the entire home as `incident to arrest.' In Vale v. Louisiana, 399 U.S. 30 (1970), police observed clear evidence of a drug sale by a known drug dealer to a known addict. Police also possessed two warrants for the drug seller's arrest which they made outside his home. The subsequent warrantless search of arrestee Vale's home revealed a quantity of narcotics. The Supreme Court invalidated the search with the notation that a search incident to arrest must be substantially contemporaneous with the arrest and must be confined to the area in the immediate vicinity of the arrest.
3. Generally, police officers cannot enter a person's home for the purpose of arresting unless they possess an arrest warrant. See Payton v. New York, 445 U.S. 573 (1980). In Chimel, although the officers arrived with an arrest warrant, is there an additional basis for allowing the officers inside Chimel's home? Would the arrest have been valid in the absence of an arrest warrant if it was based on probable cause alone?
4. In United States v. Chadwick, 433 U.S. 1 (1977), police seized a two-hundred pound footlocker which could not have been easily opened or transported by defendant Chadwick or his accomplices. After the arrestees had been taken into custody and booked, police opened and searched the footlocker without a warrant. The Chadwick Court held that the search and seizure of the contents of the locker had been illegal under the Fourth Amendment since the search could not be upheld as incident to arrest. According to the Court, a search cannot be considered "incident to arrest" when the search has been conducted far from the arrest or "remote in time or place from the arrest." The Court continued, "Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest."