searches incident to arrest

7/30/2019 Searches Incident to Arrest

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III. SEARCHES INCIDENT TO ARRESTA search incident to the lawful arrest of either the driver or any other occupant of a vehicle requires a"custodial arrest." An "arrest" occurs when you take someone into custody, either by the use ofphysical restraints or by the arrestee's submission to your authority. (Hodari D. (1991) 499 U.S. 621,626; Turner (1994) 8 Cal.4th 137, 180.)Citations for "cite and release" traffic offenses are not "custodial arrests." Even though the Vehicle

Code (as drafted before "detentions" were permitted) uses the word "arrestee" to describe the personbeing cited, the driver is not normally taken into physical custody. (See Ch.16-III for a discussion oftraffic cite-and-release procedures.) For this reason, issuing a citation will not justify searching thevehicle under the "incident-to-(a custodial)-arrest" exception to the warrant requirement, even wherethe officer has the power to make such an arrest. (Knowles (1998) 525 U.S. 113, 114-115; Arturo D.(2002) 27 Cal.4th 60, 75, fn. 15.) This is because officers issuing citations do not face the samedangers associated with taking an arrestee into physical custody. (Moore (2008) 553 U.S. 164, 177-178.)A. Incident to Arrest--PersonsThe rule forsearching persons incident to a custodial arrest does not change just because the person is(or has just been) in a vehicle . Briefly stated, you are allowed to conduct a search , including a searchof any containers, incident to any kind of lawful custodial arrest, from murder to outstanding trafficwarrants. (Robinson (1973) 414 U.S. 218; Gustafson (1973) 414 U.S. 260.)Additionally, an unlawful traffic stop does not necessarily invalidate a search if the search is based onindependent lawful grounds and the traffic stop was not the result of purposeful or flagrantmisconduct. For example, an officer's discovery of an outstanding arrest warrant prior to a search ofthe passenger was an "intervening circumstance" that resulted in a lawful search incident to arrest onthe warrant. (Brendlin (2008) 45 Cal.4th 262, 265.)B. Incident to Arrest--VehiclesFor 28 years, the law on vehiclesearches incident to arrest was remarkably clear. Officers werepermitted to search a vehicle passenger compartment following the custodial arrest of a recentoccupant even when the arrestee was handcuffed and removed to another location. (Belton (1981) 453U.S. 454.)The United States Supreme Court's decision in Arizona v. Gant (2009) 556 U.S. 332 replaced theBelton bright-line rule with a new two-part test for the lawful search of a vehicle incident to arrest ofan occupant. Vehiclesearches incident to arrest of a vehicle's occupant are now lawful if:

(1) an arrestee could gain access to the passenger compartment of the vehicle , or(2) it would be "reasonable to believe" that evidence relevant to the arrest offense

could be found in the vehicle .To understand what lawful searches may still be conducted following Gant, it is important to

understand why the majority of the Court withdrew its approval of Beltonsearches . The Belton

exception for warrantless searches was based on Chimel, which allows a search incident to arrest of

those areas within an arrestee's "immediate control" so that the arrestee cannot access a weapon or

destroy evidence. (Chimel (1969) 395 U.S. 752.) The Court reasoned that if an arrestee "has been

secured and cannot access the interior of the vehicle" then the justification for the warrantless search

was gone. (Gant (2009) 556 U.S. 332, 335, 343.)

The decision in Gant is, it appears, a response to the use of Belton incident-to-arrest searches beyond

what the Court recognized as reasonable boundaries. In other states, for instance, officers would use

Belton to justify searches incident to arrests for traffic violations, searching "every purse, briefcase, or


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other container" in the passenger compartment. The new restrictions on Belton are a response to this

perceived abuse: "A rule that gives police the power to conduct such a search whenever an individual

is caught committing a traffic offense, when there is no basis for believing evidence of the offense

might be found in the vehicle , creates a serious and recurring threat to the privacy of countless

individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth

Amendment--the concern about giving police officers unbridled discretion to rummage at will among a

person's private effects." (Gant (2009) 556 U.S. 332, 345.)

It is important to note that the Court did not overruleBelton. The majority opinion took great pains to

explain that the facts in Belton--one officer, four occupants, one pair of handcuffs--would still permit a

warrantless search incident to arrest because the interior of the vehicle was, at least theoretically,

accessible to some of the occupants after they were arrested. (Gant (2009) 556 U.S. 332, 339.)

Additionally, nothing in Gant diminished the permissible scope of an incident-to-arrest vehiclesearch . When the arrestee's access to the interior of the vehicle justifies the search , the scope of the

search would still encompass "any containers found within the passenger compartment," including"closed or open glove compartments, consoles, or other receptacles located anywhere within thepassenger compartment, as well as luggage, boxes, bags, clothing and the like." (Belton (1981) 453U.S. 454, 460-461, fn. 4; see Gant (2009) 556 U.S. 332, 345.) The search is limited to the "passengercompartment" and may not include the vehicle's trunk. (Stoffle (1991) 1 Cal.App.4th 1671, 1680.) Itwould include containers in the passenger compartment "possessed by nonarrested occupants."(Mitchell (1995) 36 Cal.App.4th 672, 677; Prance (1991) 226 Cal.App.3d 1525.)Interestingly, while restricting Beltonsearches for considerations of safety and the preservation of

evidence, the Gant decision also created a new lawful basis forvehiclesearches incident to arrest.

Officers now may search a vehicle when it is "reasonable to believe" evidence relevant to the arrest

offense could be found in the vehicle . (Gant (2009) 556 U.S. 332, 335, 351.) This requires a"reasonable possibility, not probability." (Nottoli (2011) 199 Cal.App.4th 531, 553; see also

Megginson (2009) 129 S.Ct. 1982 [ruling on denial of certiorari by Justice Alito, dissenting and

referencing "the reasonable suspicion requirement in Gant"]; Evans (2011) 200 CalApp.4th 735,

751--"[r]easonable suspicion, not probable cause, is required"; Osborne (2009) 175 Cal.App.4th 1052,

1065--the Gant "reasonable basis to believe" is "a standard less than full probable cause.") All that is

required is reasonable suspicion that evidence relating to the "crime of arrest" "might" be found in the

vehicle .

For example, officers could have searched the car in Belton because the occupants were arrested forthe possession of marijuana and evidence relating to the "crime of arrest" might have been found in thecar. (Gant (2009) 556 U.S. 332, 344--same as to the car in Thornton (2004) 541 U.S. 615 based on anarrest for possession of narcotics.) However, in other cases, such as a simple traffic violation, officerswill not have a reasonable basis to believe that the vehicle contains evidence relevant to the arrestoffense. (Gant (2009) 556 U.S. 332, 343-344, citing as examples Atwater (2001) 532 U.S. 318, 324--seatbelt violation; Knowles (1998) 525 U.S. 113, 118--speeding.) It is the nature of the offense arrest"considered in conjunction with the particular facts of the case" that determine whether a Gantvehiclesearch is lawful. (Evans (2011) 200 CalApp.4th 735, 751-752.)


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Example: Nottoli was arrested for driving with an expired license and being under the influence.HELD: The search of the car was lawful because Nottoli's arrest for a violation of Health and SafetyCode section 11550 provided a reasonable basis to believe that evidence relevant to that offense mightbe found in the car. Under Gant, the deputies could then search the container (cell phone) found in thepassenger compartment. (Nottoli (2011) 199 Cal.App.4th 531.)Example: A lawful patsearch led to the discovery of a loaded firearm in the possession of a felon.

Officers could search arrestee's vehicle incident to arrest under Gant because it was reasonable tobelieve that "additional items related to the crime of gun possession such as more ammunition or aholster" might be found in the car. (Osborne (2009) 175 Cal.App.4th 1052, 1065.)Example: Observing Evans' erratic driving and failure to signal a turn, officers initiated a traffic stop.Evans appeared unusually nervous: his hands were shaking, and his voice cracked. He would not openhis window more than one-half inch to talk to the officers, and he would not comply with the request tostep out of the car after being asked at least 10 times to do so. Evans repeatedly asked to speak to apolice supervisor and then rolled up the window. Another officer had to break a side window andremove him. Evans was arrested for a violation of Penal Code section 148, and the car was searched .Empty baggies and $65 in cash were found in the center console at the scene, and rock cocaine wasdiscovered hidden in the air vent after the vehicle was impounded. HELD: The searches wereunlawful under Gant, and they were not justified on the record provided under the Ross automobileexception or as an inventory search . (Evans (2011) 200 Cap.App.4th 735.) (Note that the searchescould have been saved under the inevitable discovery doctrine if the record on inventory policies andpractices had been developed.)1. Searches Before April 21, 2009The Supreme Court has unequivocally ruled that evidence obtained from vehiclesearches conducted

before April 21, 2009, under Belton and pursuant to a lawful arrest is not subject to suppression. The

officers conducting those searches were complying with binding precedent, which is what reasonable

officers "would and should" do. Following well-established precedent is not culpable conduct, and

excluding evidence after there is a change in law would only deter what was conscientious police

work. (Davis (2011) 131 S.Ct. 2419, 2428-2429; see Herring (2009) 555 U.S. 135.)

Davis thus invalidates the decisions from lower courts, including the Ninth Circuit, which refused toapply Herring to pre-GantBeltonsearches . (See Gonzales (9th Cir. 2010) 598 F.3d 1095.)2. Searches After April 21, 2009The Gant decision does not foreclose vehiclesearches following an arrest. What is now required is theability to articulate grounds for a vehiclesearch . If any of the following grounds justify a search , itwill be lawful. All of the grounds are based on an objective test--not on an individual officer's state ofmind.The Gant decision identifies four alternative justifications for lawful vehiclesearches : The New "Reason to Believe" Test. Officers may still conduct a search incident to arrest when it

is "reasonable to believe" that evidence related to the "'crime of arrest might be found in the vehicle.'"(Gant (2009) 129 S.Ct. 1710, 1719, 1723.) The "Automobile Exception." Any part of a vehicle (including the trunk and closed containers)may be searched if there is probable cause to believe that the vehicle contains evidence of criminalactivity and the evidence may be located in the area searched . (Ross (1982) 456 U.S. 798.) (See sec.IV, below.) Vehicle "Patdowns." During a detention, it is lawful to conduct a limited search of the passengercompartment for weapons when the officer has reasonable suspicion that the detainee or another personon the scene is dangerous and may gain immediate access to a weapon. (Long (1983) 463 U.S.1032.)
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(See sec. II-E-3, above.) "Safety or Evidentiary Interests." Citing Buie(1990) 494 U.S. 325 (protective sweeps), the GantCourt said that "there may be still other circumstances in which safety or evidentiary interests wouldjustify a search." (Gant (2009) 129 S.Ct. 1710, 1721.) This provides a catchall for those circumstancesnot yet decided by case law.Added to these justifications are additional bases for conducting a lawful search in California.

Consent. As discussed below, consent is always a valid basis forsearching a vehicle . Remember,consent that is the product of an illegal detention or arrest will be subject to challenge. Vehicle Impound/Inventories. Vehicles properly impounded pursuant to a departmental"standardized" policy may be inventoried. (Bertine (1987) 479 U.S. 367; Wells (1990) 495 U.S. 1.)The policy need not be in writing (Needham (2000) 79 Cal.App.4th 260), but officers may be asked ata suppression hearing to testify as to the policy directives. (See sec. IX, below; see also (Ruckes (9thCir. 2009) 586 F.3d 713--"inevitable discovery" doctrine applied because the facts at the suppressionhearing established that the vehicle would have been subject to a vehicle impound/inventory search .) Parole and Probation Searches . If an officer knows that a person connected to the vehicle is onparole or on searchable probation, the vehicle may be searched pursuant to the parolee's orprobationer's search condition. (See Ch. 5-VII.) Search for License/Registration Documents. If a driver stopped for a traffic violation denieshaving a driver's license orvehicle registration, officers may, prior to issuing a citation, enter thevehicle and conduct a limited search of the areas where such documentation "reasonably may beexpected to be found." (Arturo D. (2002) 27 Cal.4th 60.) (See sec. II-E-2, above.)If you have more than one of these justifications, use them all. All that is required is that thewarrantless vehiclesearch was reasonable under the Fourth Amendment on any ground recognized bythe courts.C. The "Contemporaneous" RequirementAlthough Gant may have significantly restructured the bases for a lawful search incident to arrest, itdid not alter the rule requiring a "fairly contemporaneous" search . A search will be valid as incidentto an arrest only if the search and arrest were "contemporaneous." (Stoffle (1991) 1 Cal.App.4th 1671,1679.) This means they must occur at the same location and at approximately the same time, althougheither may precede the other slightly. (LaFromboise (9th Cir. 1997) 105 F.3d 512, 513; Smith (9th Cir.2004) 389 F.3d 944, 952.) (See Ch. 2-VI-B.)D. Recent OccupantsBelton, and now Gant, applies to "recent occupants" of a vehicle under the appropriate circumstances.(See Thornton (2004) 541 U.S. 615, 620-621.)Example: Thornton tried to avoid driving next to a uniformed officer in an unmarked car. The officerpulled onto a side street and ran a check on the registration tags of Thornton's car, which came back asissued to a different vehicle . Before the officer caught up with him, Thornton had parked and waswalking away from his car. Thornton was arrested outside and away from his vehicle . HELD: TheBeltonsearch of the car was valid. "So long as an arrestee is the sort of recent occupant' of a vehiclesuch as petitioner was here, officers may search his vehicle incident to the arrest." (Thornton (2004)541 U.S. 615.)Example: Search of car incident to arrest was proper where officer had observed arrestee standingnear the rear of a parked vehicle drinking a can of beer, then standing by the open passenger windowand leaning inside, and a can of beer was later observed on the floorboard of the car. (Stoffle (1991) 1Cal.App.4th 1671, 1680.)

VI. SEARCHES INCIDENT TO ARRESTIncident to a lawful custodial arrest, you are entitled to search the arrestee's person and area aroundhim, that is, the area and objects that are under his immediate control. Such a search is justified simply


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by the fact of the lawful custodial arrest. (Robinson (1973) 414 U.S. 218, 235.) The U.S. SupremeCourt recognizes that searches incident to a lawful arrest enable officers to safeguard evidence andensure their safety during the process of a custodial arrest. (Moore (2008) 553 U.S. 164.)"The lawfulness of the search turns not on whether the officer intended to release the defendant aftertaking him into custody, but on whether the officer was justified in arresting the defendant and takinghim into custody in the first place." (Humberto O. (2000) 80 Cal.App.4th 237, 243.) Note that if a

search incident to arrest is asserted at a suppression hearing, the prosecution will have to establish thatthe officer had grounds for a lawful arrest. (Knight (2004) 121 Cal.App.4th 1568--the People failed toestablish that possession of a loaded firearm was prohibited in the location where defendant wasdetained.) A "lawful" arrest is one that complies with the U.S. Constitution. (Moore (2008) 553 U.S.164, 175-176.)Note: With regard to weapons, Penal Code section 833 specifically authorizes a peace officer tosearch any person whom the officer has legal cause to arrest whenever the officer "has reasonablecause to believe that the person possesses a dangerous weapon." The officer may take and keep anydangerous weapon until the completion of questioning, at which time the weapon will be returned orthe person arrested for a crime, including illegal possession of the weapon found in the search .A. The Area Subject to SearchThe area that may be searched incident to an arrest is limited to the area within the "immediatecontrol" of the suspect. This generally means the area within "arm's reach" of the arrestee--the nearbyphysical area from which he, in theory, could grab a weapon or destroy or conceal evidence. (Chimel(1969) 395 U.S. 752.) Obviously, it includes the arrestee's person, and it can be a fullsearch .(Robinson (1973) 414 U.S. 218, 233-234; Guajardo (1994) 23 Cal.App.4th 1738, 1742.) The SupremeCourt has recognized that because of the "potential dangers lurking in all custodial arrests," a search ofitems within the area of the arrestee's "immediate control" are reasonable "without requiring thearresting officer to calculate the probability that weapons or destructible evidence may be involved."(Chadwick (1977) 433 U.S. 1, 14-15; Diaz (2011) 51 Cal.4th 84.)It makes no difference what offense the person is being arrested for, as long as she is taken into

custody. In other words, even if the crime is not one that involves physical evidence, "fruits or

instrumentalities," and even if you have no factual basis for suspecting the person may be armed, you

are entitled to conduct a full search of the person incident to a lawful custodial arrest. (Robinson

(1973) 414 U.S. 218; see Gutierrez (1984) 163 Cal.App.3d 332.)

Note: In Gant, the U.S. Supreme Court restricted the Belton "incident-to-arrest" rule forvehicle

searches . Now, as to vehicles , a search incident to arrest is not allowed if the arrestee has been

secured and is not within reaching distance of the passenger compartment--unless the officer has reason

to believe that the vehicle contains evidence of the offense of arrest. (Gant (2009) 556 U.S. 332, 335.)

Gant was not applied to non-vehiclesearches , but it is certain to yield many arguments that it should

be. (See Maddox (9th Cir. 2010) 614 F.3d 1046--officer could not search the vial on arrestee's

keychain after arrestee was handcuffed in the backseat of the police car.) But for now, in California,

Chimel and Robinson remain good law. See Chapter 4 for a full discussion of Gant and its application

to vehiclesearches .

In addition to a search of the arrestee's person and the area within arm's reach, the incident-to-arrestexception also applies to the search of all personal property "immediately associated" with thearrestee's person. For instance, in Robinson, the item subject to search was a crumpled-up cigarette
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package found in the breast pocket of the arrestee's coat. (Robinson (1973) 414 U.S. 218, 222-223.) InDiaz, the item was a cell phone the defendant was carrying on his person when he was arrested, andofficers could search the phone and its text message folder incident to his arrest. (Diaz (2011) 51Cal.4th 84.) The reasoning is that the loss of privacy upon arrest extends to the personal propertyimmediately associated with the arrestee at the time of the arrest. (Diaz (2011) 51 Cal.4th 84.)Example: Because the officer took the offender into custody, an arrest for driving without having a

valid license justified a full search . (Gustafson (1973) 414 U.S. 260.) So did a custodial arrest underPenal Code section 647, subdivision (f) (Boren (1987) 188 Cal.App.3d 1171) and custodial arrests for"failing to produce satisfactory evidence of identification" underVehicle Code section 40302,subdivision (a) (McKay (2002) 27 Cal.4th 601, 620-625; Monroe (1993) 12 Cal.App.4th 1174, 1195).Example: Diaz was arrested as a coconspirator in the sale of Ecstasy tabs to a police informant. Hewas searched incident to arrest, and his cell phone was seized and turned over to the deputy who madethe arrest. Approximately 90 minutes later at the sheriff's station after Diaz's interview with a detective,the deputy looked at the cell phone's text message folder. He found a message "6 4 80," interpreted tomean six pills of Esctasy for $80, which prompted Diaz to admit participating in Esctasy sales.HELD: The search of the cell phone was valid incident to Diaz's arrest. Because the phone was"immediately associated with" Diaz's person, the deputy was "entitled to inspect" its contents at thestation 90 minutes after the arrest without a warrant and without exigent circumstances. (Diaz (2011)51 Cal.4th 84.)The same reasoning applies to any containers--open or closed--that are on the arrestee's person or underhis or her immediate control at the time of the arrest, such as a purse, fanny pack, or backpack. (Belton(1981) 453 U.S. 454; Dennis (1985) 172 Cal.App.3d 287; Rodriguez (9th Cir. 1989) 869 F.2d 479.)The container must be an item of personal property immediately associated with the arrestee's personjustifying a warrantless search . A 200-pound double-locked footlocker in the trunk of a car does notfit within this definition. (See Chadwick (1977) 433 U.S. 1.)Example: The "arrest" of a juvenile for truancy (Ed. Code, 48265) justified searching his backpackprior to driving him to the school a few blocks away. (Humberto O. (2000) 80 Cal.App.4th 237.)Example: In making a custodial arrest for involvement in a credit card scheme, it was proper for thepolice to look through an address book on the suspect's person, even though the evidentiary value ofthe book was not apparent at that time. (Holzman (9th Cir. 1989) 871 F.2d 1496.)It makes no difference that the offense you made the arrest for is "bailable" (Castaneda (1995) 35Cal.App.4th 1222, 1228) or that it involves a minor whom you take into "temporary custody" beforereleasing him at juvenile hall or his home or school (Humberto O. (2000) 80 Cal.App.4th 237).Example: An arrest for public intoxication (Pen. Code, 647, subd. (f)) justified reaching into thearrestee's pocket and taking out his wallet to look for identification. (Sanchez (1985) 174 Cal.App.3d343; see also Boren (1987) 188 Cal.App.3d 1171.)Example: An officer arrested a juvenile at 1:00 a.m. for "prowling." The officer intended to place thejuvenile in the patrol car, take him home, and release him to his parents. He handcuffed him andsearched him, finding cocaine in one of his pockets. The search was lawful simply because of thevalid custodial arrest, even though there was no intent to book or incarcerate the defendant. (DemetriusA. (1989) 208 Cal.App.3d 1245; see also Humberto O. (2000) 80 Cal.App.4th 237 [search of backpackjustified where minor taken into "temporary custody" for being a truant].)Example: An arrest for Penal Code section 647, subdivision (f), justified reaching into arrestee'spocket to retrieve suspected bindles of narcotics detected during a patdown. (Dennis (1985) 172Cal.App.3d 287.)Example: The existence of probable cause and a subsequent arrest for possession of heroin justifiedreaching into the suspect's pocket to retrieve a partially visible plastic bag. (Fay (1986) 184Cal.App.3d 882; Gonzales (1989) 216 Cal.App.3d 1185.)On the other hand, when there is no custodial arrest, for example, where the offense is possession of
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less than one ounce of marijuana, there is very little law, and the law that exists is not terribly clear. Itappears, however, that a search of the person for evidence, "fruits and instrumentalities" of the crime,contraband, or weapons, is still proper, at least where the officer has probable cause to believe that suchitems may be on the violator's person.Example: After making a traffic stop, officers observed a partially smoked, hand-rolled cigarette onthe front console and placed the driver under arrest for possession of less than one ounce of marijuana.

A custodial arrest was not authorized if the driver produced proper identification, which he did. Theofficers nonetheless had probable cause to justify a limited search for contraband based on thepresence of the marijuana combined with their information about the driver's narcotics activity and hisconduct before the traffic stop. (Coleman (1991) 229 Cal.App.3d 321, 326.)Note: Although it would not justify a search without additional factors, one published federal caserecognized as a matter of law that narcotics dealers frequently hide narcotics near their genitals.(Rodney (D.C. Cir. 1992) 956 F.2d 295, 297; Smith (2009) 172 Cal.App.4th 1354, 1364.)Finally, it is always legal to conduct a limited patdownsearch for weapons when you are going totransport or travel in close proximity to the arrestee, no matter what the arrest is for, or anytime youhave facts making it reasonable to be concerned for your safety. (Laiwa (1983) 34 Cal.3d 711;Brisendine (1975) 13 Cal.3d 528; Barnes (1983) 141 Cal.App.3d 854.)Example: A minor was taken into custody simply for the purpose of being transported to his home.Nevertheless, a full search of his person was proper incident to being, in effect, arrested, i.e., taken intotemporary custody. (Demetrius A. (1989) 208 Cal.App.3d 1245, 1248; Charles C. (1999) 76Cal.App.4th 420, 424-425.) The same rule--search incident to arrest when a minor is taken into"temporary custody"--applies to violations of the curfew ordinance. (Giovanni B. (2007) 152Cal.App.4th 312, 321; Ian C. (2001) 87 Cal.App.4th 856, 859-860.)B. The "Contemporaneous" RequirementGenerally, a search will be valid as incident to an arrest if the search and arrest were carried out"contemporaneously." This means they must occur at the same location and at approximately the sametime, although either may precede the other slightly. (Rawlings (1980) 448 U.S. 98; Lennies H. (2005)126 Cal.App.4th 1232; Gonzales (1989) 216 Cal.App.3d 1185; Fay (1986) 184 Cal.App.3d 882.) Thegeneral rule is that if you wait to search the arrestee or a container in his possession until somesubstantial time afterwards (such as 30 minutes or more), the search cannot be justified as "incident" tothe arrest. (Belton (1981) 453 U.S. 454; Preston (1964) 376 U.S. 364.)Example: Police arrested Ingham in the living room of her home. Her large purse was on the floor ofthe room. At her request, Ingham was permitted to retrieve a small wallet from the purse and take itwith her downtown. On their own, the police brought the purse along, searched it later, and discoveredcontraband. HELD: Although the police could have legally searched the purse at the time of thearrest, this incident-to-arrest justification was lost because of the delay. Furthermore, there was noindependent probable cause to search the purse and it could not be considered a valid part of thebooking process because Ingham did not choose to take it with her when she left home. Therefore, thecontraband found in the purse was suppressed. (Ingham (1992) 5 Cal.App.4th 326.)An exception to the general rule applies, however, if the search "incident" to arrest is conducted whenthe arrestee arrives at a place of detention. The rationale for this exception is that the arrestee is "'nomore imposed upon' by a delayed search 'than he [or she] could have been' by a warrantless search 'atthe time and place of the arrest.'" (Diaz (2011) 51 Cal.4th 84; Edwards (1974) 415 U.S. 800, 803.)Example: Edwards was taken to jail after being arrested for attempting to break into a post office. Tenhours later, the police took his clothes to hold as evidence in case paint chips from the post officewindow were present. The United States Supreme Court held that the seizure of his clothes and laterforensic search of the items he had been wearing were valid as a search incident to arrest despite thetime delay. (Edwards (1974) 415 U.S. 800, 803-809.)Example: Ninety minutes after Diaz was arrested and while he was still at the sheriff's station, the


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arresting officer looked at the text message folder of the cell phone taken from Diaz when he wasarrested. He found a message indicating an order for drug sales. The California Supreme Court heldthat the delayed search of the cell phone and the message folder was lawful under the Edwardsdecision. Exigent circumstances were not required. (Diaz (2011) 51 Cal.4th 84.)A search incident to arrest may occur closely before an arrest if you already have probable cause forthe arrest. However, if the search takes place before the arrest, even momentarily, it will not be legal if

you do not have probable cause to arrest at the time of the search . In other words, you cannot"bootstrap" the situation by using what you find during the search to provide probable cause for thearrest: the probable cause had to be there beforehand. (Smith (1990) 494 U.S. 541; Adams (1985) 175Cal.App.3d 855.)

VII. SEARCHES INCIDENT TO ARRESTWhen a person is lawfully arrested in a home or other building, a limited right exists to conduct awarrantless search not only of his person, but also of the area within his "immediate control" ("arm'slength," "lunging distance"). (Chimel (1969) 395 U.S. 752, 763; Tarazon (9th Cir. 1993) 989 F.2d1045, 1051.)It is impossible to say exactly how much physical area is covered by this exception. It is supposed toinclude any place from which the suspect might otherwise grab a weapon or destroy evidence. The factthat the suspect is already immobilized--under arrest or even handcuffed--is not determinative. (Rege(2005) 130 Cal.App.4th 1584, 1589.)Note: In Gant (2009) 129 S.Ct. 1710, 1714, the Supreme Court restricted the Belton "incident-to-arrest" rule forvehiclesearches . Now, as to vehicles , a search incident to arrest is not allowed if thearrestee has been secured and is not within reaching distance of the passenger compartment--unlessthere is reason to believe that the vehicle contains evidence of the arrest offense. The Court did notdiscuss if Gant would impact the search of premises incident to arrest.However, one California case has held that officers may not routinely enter a residence to conduct asearch incident to arrest once a suspect is handcuffed and secured in a squad car. In suchcircumstances, routine entry and search of the area where the suspect had been standing when he wasarrested is beyond the Chimel exception. (Leal (2009) 178 Cal.App.4th 1051; see also Summers(1999) 73 Cal.App.4th 288, 291.)Example: Officers went to Leal's residence to serve two misdemeanor arrest warrants and called outfor 45 minutes before Leal opened the front door. Leal was handcuffed and secured in a squad car.After a sweep of the small house, one officersearched the area near the threshold where Leal had beenstanding when he was arrested. Although the protective sweep was not criticized, stepping back intothe house to conduct a warrantless search incident to arrest fell outside the Chimel exception. Thecourt noted that a different analysis would have applied had Leal not yet been fully secured or if nearbythird parties were unaccounted for. (Leal (2009) 178 Cal.App.4th 1051.)Example: Officers arrested defendant in her motel room, ordered her to lie on the floor, andhandcuffed her while they secured the area. One officer lifted the mattress of the only bed in the room,which was approximately three feet from the defendant, and found a stash of narcotics andparaphernalia. HELD: The search under the mattress was a valid search incident to arrest. (Rege(2005) 130 Cal.App.4th 1584, 1590.)Example: Incident to the forcible arrest of an armed robbery suspect in his bedroom, it was legal tosearch the area within "lunging distance" (six to eight feet), including a box at the foot of the bed,where two guns were discovered. (Spencer (1972) 22 Cal.App.3d 786.)Example: Officers saw defendant open the door to his apartment while holding a black bag and a glassmeth pipe with white residue. Because these observations (plus the officers' prior knowledge andexpertise) provided probable cause to arrest, they seized these items from him, arrested him,


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handcuffed him, and seated him in the hallway. Then they searched the black bag and found additionalcontraband. HELD: The search of the black bag was valid as incident to defendant's custodial arrestbecause (1) the bag had been in an area under his control at the time of his arrest and (2) nothingbetween the time of the arrest and the time of the search rendered the search unreasonable. (Nohara(9th Cir. 1993) 3 F.3d 1239, 1242-1243.)A. Contemporaneous Requirement

A search incident to an arrest is permissible only if it takes place at the same place and at essentiallythe same time as the arrest, i.e., just before, during or immediately afterward. (Chimel (1969) 395 U.S.752; but see Summers (1999) 73 Cal.App.4th 288.)B. Searches of Areas Beyond Immediate ReachNormally, any evidence you find by searching beyond the suspect's "immediate control" will besuppressed unless you see it in "plain view" while you are still within the "immediate control" area.

Furthermore, it is improper for you to try to expand or enlarge the "plain view" or the "immediatecontrol" area by moving the suspect from room to room. (Eiseman (1971) 21 Cal.App.3d 342;Sanderson (1980) 105 Cal.App.3d 264.)

However, if the arrestee asks to go to another part of the premises (e.g., to get his wallet or shoes, tochange clothes, to go to the bathroom), it is perfectly legal for you to accompany him for securityreasons, and whatever you see in "plain view" may properly be seized. (Chrisman (1982) 455 U.S. 1.)The same is true for a minor you are taking into protective custody. (Breault (1990) 223 Cal.App.3d125, 132.)