§ 12.02 Warrant Exception: In Greater Detail
| Jurisdiction | United States |
[A] The Arrest
[1] "Full Custodial"
The SILA rules apply to arrests in which the officer takes the suspect into "full custody," i.e., transports the arrestee to the police station for booking.17
Do the SILA rules discussed in this chapter also apply when an officer temporarily detains a suspect in order to issue a traffic citation or other summons? The Supreme Court has answered this question. In Knowles v. Iowa,18 O, an Iowa police officer, stopped K for speeding. O had statutory authority to take K into custody for the minor offense and immediately transport him to a magistrate. Instead, however, O issued K a traffic citation. Then, pursuant to statute, O conducted a full search of the car, during which he discovered marijuana under the driver's seat.
The Court unanimously held that this warrantless search could not be justified on SILA grounds. The Court stated that neither of the reasons for permitting warrantless searches at the time of an arrest — to disarm a suspect or to discover and preserve evidence — justifies a search of a car when an officer merely issues a speeding ticket. The Court stated that although officer safety is a "legitimate and weighty" interest, the physical threat to an officer when issuing a citation "is a good deal less" than when he takes the individual into custody.19 In the latter circumstance, he will be in close proximity to the arrestee for an extended period.
As for discovering evidence, the Knowles Court stated that "[a]s for the destruction of evidence relating to [the driver's] identity, if a police officer is not satisfied with the identification furnished by the driver, this may be a basis for arresting him rather than merely issuing a citation." And regarding the possibility that the driver might destroy evidence of an unrelated offense, the Court said that such possibility "seems remote."
On its face, Knowles is a victory for advocates of limitations on police authority when dealing with citizens in "minor offense" contexts. But it must be kept in mind that the Iowa statute in question gave the police authority to issue a traffic citation to a speeder, as occurred in Knowles, or to take the driver into custody and then conduct a warrantless search incident to the lawful custodial arrest. What if O, in Knowles, had chosen the option of taking K into custody?
That is precisely what happened in Atwater v. Lago Vista.20 In Atwater, O stopped A in her pickup truck because she and her two young children did not have their seatbelts on, a misdemeanor punishable by a small fine. O could have issued a traffic citation, but instead he took A into custody, which was also authorized by statute. The Court ruled, 5-4, that the Fourth Amendment does not prohibit the custodial arrest of a person for a minor, "fine-only" offense.21 And once such a custodial arrest is made, the arresting officer is authorized to search the driver and the area within the driver's immediate control. Thus, when officers have the option of taking minor offenders into custody, the conjunction of Knowles and Atwater creates an incentive for an officer, if he has a hunch that a traffic violator has criminal evidence in his possession or in the passenger compartment of the car, to make a full custodial arrest in order to obtain constitutional authority to search incident to the custodial arrest.22
[2] Lawfulness of the Arrest
The SILA doctrine applies to a search conducted after a constitutionally lawful arrest. Therefore, if an arrest is constitutionally unlawful, the warrantless search cannot be justified on the basis of this warrant exception. To be constitutionally lawful the police must have probable cause and, in limited circumstances, an arrest warrant.
Notice that the text immediately above speaks of a constitutionally lawful arrest. That distinction is important in light of Virginia v. Moore.23 According to Moore, an arrest based on probable cause, although in violation of state law, is "lawful" for purposes of the Fourth Amendment, i.e., it is a constitutionally lawful arrest. A search conducted as an incident of that arrest, therefore, satisfies the Fourth Amendment rules discussed in this chapter.
Thus, in Moore, an officer arrested M for a minor driving offense and took him into custody. The arrest was supported by probable cause, but under state law the officer should have issued a summons rather than take M into custody, so the arrest was "unlawful" according to state law. The Court unanimously held that the arrest was constitutionally lawful because it was supported by probable cause. The search incident to this "lawful" arrest, therefore, was also valid.
Notice that Moore may create an incentive for a bad-faith officer, who has probable cause to issue a citation, to instead take that person into custody — even if doing so is in violation of state law — if the officer has a hunch that the search of the person incident to the constitutionally lawful arrest might turn up criminal evidence, as occurred here (the search yielded crack cocaine).
[B] Contemporaneousness of the Search
[1] Area within Arrestee's Immediate Control
An officer's right to conduct a search of the area within the immediate control of an arrestee is limited to searches conducted contemporaneously with the arrest. For example, if an officer does not search the car of an arrestee until it is towed to the police garage, this search cannot be justified on SILA grounds.24 Quite simply, the search is no longer an "incident" of the arrest. This rule is reasonable in light of the SILA doctrine's stated purpose: Once the arrestee is taken into custody and separated from his car at the police station, there is no risk that he can grab any weapons or destroy any evidence that previously were in the lunging area.
[2] Closets and Other Spaces Adjoining the Place of Arrest
Once a person arrested in his home is removed from it, the justification vanishes for a search of closets and other spaces immediately adjoining the place of arrest. Therefore, although the Supreme Court has not yet dealt with a non-immediate search of such areas incident to an arrest, the contemporaneousness limitation should apply.
[3] Of the Person
The contemporaneousness limitation might not apply to searches of the person or, perhaps more to the point, the SILA exception merges nearly seamlessly into another warrant exception in most non-contemporaneous searches of custodial arrestees.
Consider United States v. Edwards:25 E was arrested at night and jailed for an attempted burglary. Soon after the arrest the police learned that the burglar had attempted to enter the building by prying open a window. Therefore, the police suspected that paint chips might be found on E's clothing. The next morning, about 10 hours after the arrest, the police purchased new clothing for E and seized what he was wearing, which they inspected and held as evidence of the crime.
The Supreme Court upheld the warrantless search. Although the holding appears to be based on various warrant-exception...
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