5.7.1

• Jurisdiction: Arizona

§ 5.7.1 Search Incident to Arrest – Person

1. General Rule. A person may be searched incident to arrest in areas under his immediate control (“wingspan”). Chimel v. California, 395 U.S. 752 (1969). The search also must be contemporaneous with the arrest. Id. See also State v. Beasley, 205 Ariz. 334, 70 P.3d 463 (App. 2003) (Div. 1) (gunshot residue test was considered contemporaneous to the arrest). An officer with grounds to conduct a search incident to arrest may conduct that search, even if a warrant could be obtained. Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).

An officer may search a person the moment he has probable cause to arrest, not only when the person is formally under arrest. State v. Weinstein, 190 Ariz. 306, 947 P.2d 880 (App. 1997) (Div. 2), citing State v. Clevidence, 153 Ariz. 295, 300, 736 P.2d 379, 384 (App. 1987) (Div. 1). See also State v. Bonillas, 197 Ariz. 96, 98, 3 P.3d 1016 (App. 1999) (Div. 2) (same, citing Weinstein). The officer may search an individual incident to arrest with no additional justification. State v. Beasley, 205 Ariz. 334, 70 P.3d 463 (App. 2003) (Div. 1) (swabbing defendant’s hands to obtain samples for gunshot residue (“GSR”) test was lawful as valid search incident to arrest); State v. Hersch, 135 Ariz. 528, 662 P.2d 1035 (App. 1983) (Div. 2); State v. Goettel, 117 Ariz. 287, 572 P.2d 115 (1977); see also United States v. Moorehead, 57 F.3d 875, 877-78 (9th Cir. 1995) (applicability of the search incident exception “[does] not turn upon a defendant’s actual ability to grab items”); United States v. Lorenzo, 867 F.2d 561 (9th Cir. 1989) (per curiam) (same); United States v. Cook, 797 F.3d 713 (9th Cir. 2015) (search of the defendant’s backpack while it was on the ground next to him, which he was wearing when he was arrested, constituted a proper search incident to arrest).

Officers may not create the situation requiring search incident to arrest. See, e.g., United States v. Erwin, 507 F.2d 937 (5th Cir. 1975) (officer may not allow defendant to wander around in rooms of house and then search every room he enters as search incident to arrest); United States v. Wright, 577 F.2d 378 (6th Cir. 1978) (officer may not bring luggage within arrestee’s reach, and then try to justify search as incident to arrest).

2. DUI Breath Tests Incident to Arrest. See Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving, regardless of whether a warrant may be obtained, but not warrantless blood tests, because of the differing levels of intrusions of those actions; Court also noted that the “States and the federal government have a paramount interest in preserving public highway safety” and “States have a compelling interest in creating deterrents to drunk driving, a leading cause of fatalities and injuries”); State v. Navarro, 241 Ariz. 19, 382 P.3d 1234 (App. 2016) (Div. 2) (“Under the Fourth Amendment to the United States Constitution, suppression was not required here because, as Birchfield held, a warrantless breath test is allowed as a search incident to a lawful DUI arrest.”). See also § 3.2 “Was There a Search” and § 3.2.6 “Personal Characteristics, including Blood, Breath, and DUI.”

3. Personal Possessions/Cellphones and Pagers.

a. Personal Possessions. Officers ordinarily can...