2. SEARCH-INCIDENT-TO-A-LAWFUL-ARREST 2
Arresting officers have an arrest warrant but no search warrant. The Defendant is one of three
persons wanted in connection with a Robbery. The suspect vehicle in the Robbery parked in the
Driveway.
QUESTION PRESENTED:
Indicate the full extent of the arresting officer’s authority to search the Defendant, his premises,
and automobile under the search-incident-to-a-lawful-arrest doctrine?
POINT I
The Fourth Amendment protects “against unreasonable searches and seizures” of (among
other things) persons. The United States Supreme Court has held in determining whether a search
is unreasonable turns to the History of the Law. When history has not provided a conclusive answer,
Courts have analyzed a search or seizure in light of traditional standards of reasonableness “by
assessing the degree to which it intrudes upon an individual’s privacy and the …degree to which
it promotes a legitimate governmental interest.” (Emphasis added) Virginia v. Moore, 553 U.S.
164 (2008) (citations omitted)
To satisfy the arrest procedures, a Law Enforcement Officer must meet four basic elements
necessary for a formal arrest.
1. A Law Enforcement officer’s purpose or intention to take a person into the custody of the
law.
3. SEARCH-INCIDENT-TO-A-LAWFUL-ARREST 3
2. The officer’s exercise of real or pretended authority.
3. That the arrestee be taken into custody either by physical force or by submission to
assertion of authority, and
4. . Understanding by the person to be arrested of the officer’s intention to arrest.
See NY CPL §140.10 Arrest without a Warrant by Police Officer; When and where authorized and,
NY CPL §140.15 Arrest without a warrant; when and how made by Police Officer.
There are encounters between Law Enforcement and the General public that are considered
more intrusive than merely approaching an individual on the street or in another public place. Here,
the case in question is the Police Authority to arrest the defendant upon a valid arrest warrant,
Courts have observed this to be judicially sound justification when such arrest have the informed
and deliberate determination of magistrates empowered to issue warrants (See Criminal
Procedure for the Criminal Justice professional 12th Ed. Part II Search warrants, arrest, stops,
and Frisks at page at page 243-244 citing Aguilar v. Texas, 378 U.S. 108, 110-11 (1964) Since
this case holds that the Police were executing an arrest warrant to arrest the defendant, not a search
warrant. In this instance, the Police officer executing the warrant is justified to search the defendant
for weapons contemporaneous to the lawful arrest and any evidence obtained as a search-incident-
to-a-lawful-arrest.
POINT II
DOES THE AUTHORITY TO ARREST
PERMIT THE ARRESTING OFFICER TO SEARCH
THE PREMISES, AND HIS AUTOMOBILE?
In Payton v. New York, 445 U.S. 573 (1980) the United States Supreme Court held “absent exigent
circumstances or consent, Law Enforcement Officers may not make a warrantless entry into a
suspects home to make a routine felony arrest. Criminal Procedure for the Criminal Justice
Professional at 252 citng Kyllo v. United States, 533 U.S. 27, 40 (2001) In executing an arrest
warrant, when officers are directed to execute, belief of guilt of the defendant or their personal
knowledge of facts pertaining to the offense is immaterial to the executing of such arrest. They are
simply required to carry out the order of arrest.
In the Supreme Court’s decision Arizona v. Gant, 556 U.S. 332 (2009) in upholding the
Chimel v. California, 395 U.S. 752 (1969) application to the State Court decision that Police were
4. SEARCH-INCIDENT-TO-A-LAWFUL-ARREST 4
not justified in the search of the car after the defendant was handcuffed and locked in the back of
a patrol car in relation to the defendant’s arrest for driving with a suspended license. Courts have
held that Searches conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment---subject only to a few
specifically established and well-delineated exceptions. Id. Among the exceptions to the warrant
requirement is a search incident to a lawful arrest which derives from interests in officer safety and
evidence preservation that are typically implicated in arrest situations.
In the case described herein, the only permissible search incident to a lawful arrest is solely the
area “within his immediate control’, construed as meaning the area from within which he or she
might gain possession of a weapon or destructible evidence. Here, the only permissible search
would be commensurate with the purpose of protecting the arresting officers and safeguarding any
evidence of the offense of arrest that an arrestee might conceal or destroy. ˡ
QUESTION PRESENTED:
POINT III
DOES THE POLICE HAVE THE AUTHORITY
TO ARREST OR DETAIN DEFENDANT ABSENT
AN ARREST WARRANT, FOLLOWED BY THE AUTHORITY
TO SEARCH THE VEHICLE IN THE DRIVEWAY?
The Fourth Amendment protects “against unreasonable searches and seizures”. It is argued that
the search and seizure was justified as incidental to a lawful arrest. 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. See, Preston v. United States, 376 U.S. 364, 367 (1964) In the above scenario, the seizure
of the car in the driveway cannot be justified as incidental to the arrest which took place inside the
house. Even assuming, arguendo, that the police could properly have made a warrantless search of
the car in the driveway when they arrested defendant, they could not have done so absent a warrant.
Coolidge v. New Hampshire, 403 U.S. 443, 444(1971) absent exigent circumstances, the
warrantless search of the vehicle is impermissible.
5. SEARCH-INCIDENT-TO-A-LAWFUL-ARREST 5
ˡ Searches incident to arrest are reasonable “in order to remove any weapons [the arrestee] might seek to use” and “in order to
prevent [the] concealment or destruction” of evidence (emphasis in original) If there is no possibility that an arrestee could reach
into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent
and the rule does not apply. Id. E.g., Preston v. United States, 376 U.S. 364, 367-68 (1964)
Applying that methodology, this Court has held that when an officer has probable cause to believe
a person committed even a minor crime, the arrest is constitutionally reasonable. See, Virginia v
Moore, supra. “[w]hether an officer is authorized to make an arrest ordinarily depends, in the first
instance, on state law,” it also said that a warrantless arrest satisfies the Constitution so long as the
officer has “probable cause to believe that the suspect has committed or is committing an offense.”
Id.
In Payton v. New York, 445 U.S. 573, 586-88 (1980) the Supreme Court opined:
“[a] greater burden is placed ... on officials who enter a home or dwelling without consent.
Freedom from intrusion into the home or dwelling is the archetype of the privacy protection
secured by the Fourth Amendment.” Id., at 317, 435 F.2d, at 389. (Footnote omitted.)
The physical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed. To be arrested in the home involves not only the invasion attendant to all
arrests, but also an invasion of the sanctity of the home, which is too substantial an invasion to
allow without a warrant, in the absence of exigent circumstances, even when it is accomplished
under statutory authority and when probable cause is present. In terms that apply equally to
seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed
without a warrant. Id.
6. SEARCH-INCIDENT-TO-A-LAWFUL-ARREST 6
The Court looked at the circumstances of the case in authority to search an automobile in the
driveway suspected to be involved in a crime and held that the Police could not make a warrantless
search of the automobile absent the necessary exception, which in this case are not present by the
circumstances, it went on to say:
.
‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not
that it denies law enforcement the support of the usual inferences which reasonable men
draw from evidence. Its protection consists in requiring that those inferences be drawn by a
neutral and detached magistrate instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to
support a magistrate's disinterested determination to issue a search warrant will justify the
officers in making a search without a warrant would reduce the Amendment to a nullity
and leave the people's homes secure only in the discretion of police officers. * * * When the
right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a
judicial officer, not by a policeman or Government enforcement agent.’
Coolidge v. New Hampshire, supra
In conclusion, the defendant’s arrest could be justified and the search incident to a lawful arrest
applies only to the immediate area of which the defendant has control. Absent a warrant to search
the automobile in both instances depends on the totality of circumstances and the officers’
apprehension of the defendant at the time. Compare Terry v. Ohio, 392 U.S. 1 (1968) New York
v. Harris, 495 U.S. 14 (1990); see also, Payton v. New York, supra.
7. SEARCH-INCIDENT-TO-A-LAWFUL-ARREST 7
References:
Criminal Procedure for the Criminal Justice Professional 12 Ed.
Virginia v. Moore, 553 U.S. 164 (2008)
Payton v. New York, 445 U.S. 573 (1980)
Arizona v. Gant, 556 U.S. 332 (2009)
Preston v. United States, 376 U.S. 364, 367-368 (1964)
Terry v. Ohio, 392 U.S. 1 (1968)
New York v. Harris, 495 U.S. 14 (1990)
NY CPL §140.10; §140.15
