Search of Premises Vehicles, and the Indiridual Incident to Apprehension

• Author: By Major Francis A. Gilligan
• Pages: 03

1. IKTRODUCTION

The Supreme Court has been plagued over the yeam with the problem of adequately defining the permissible scope of a search incidental to a lanful apprehension, both as to the arrestee's per8on and the area immediately surrounding the arrestee. In attempting to Solve the problem, the Court has changed directions five times, the last time in Chime1 zi. CaIifwnia.' One of the rea-s o n ~ for the indrcisiveness is the debate over the warrant clause of the Fourth Amendment. This debate focuses on whether a war. rant is a prerequisite to a reasonable search or whether the practicability of obtaining a warrant is only one of a number of factors to be considered in judging the reasanablness of a search.l A preference for search warrant has been expressed by both the Supreme Court and the Court of Military Appeals on a number of occasions, but the Supreme Court has said where exigent cireum-stances are present, a warrantless search may be permissible.' Before determining whether this preference should be applied to the search of the person, premise, and automobile, it i3 necessary to examine Chime1 and the per-Chime1 cases.

~ - The opmmnr and e o n c l ~ ~ i o n ~ presented herm are those of the author

and do not neeei~arllg

represent the >iejj.s of The Judge Advocate General's School or anv ather coiernmental aeencr.

1 395 C S. 762 (1969)

See LaFaue, 8 CRIY. L. BULL. 8 (1972) i T TAYLOR.

Two STUDILS

IIITERPRET*~O~'

58-40 (1868) ; Sote. The Fourth Amand-mmt in ~ousing mpeotion, 77 YALE L. J. 521, 622 n. 8, 524 n. la, 529 n. 35 (1868).3 See Vale v Loulwana. 398 U.S. 30, 35 (1970). See a160 Chime1 %.

California, 385 US. 752 (1868), Katz Y Unrted States, 388 U.S. 357-68 (1967).

C~SSTIT~TIONAL

OF

I1 PREMISES

4. FIVE SHIFTS

In order to understand the boundaries of Chmel, we muat first look to the history of the concept of the search incident to apprehension.

The precise origin of the search incident to apprehension doctrine in American law 1s not apparent. Dicta in some Supreme Court opinions announced in the early decades of this centilrg refer to the intensity and scope of such searches. However, these early formulations of the doctrine were Imprecise. The first apparent major statement of the doctrine 1s found in l'oited States II. Weeks.' Dictum in the opinion contains the folloning language: a h a t then 1% !be present case' Before m"~er.ng that inq~ir? may be wll by B pmceir a i ex~~liion

TO itare %hata+ an airer'.ion of the righT on the pari of the Government. alirsyi recognized under Enslirh and hrnerlran law to searchthe perron of the accused when legally aneited, to discover and % e m the fruits or evidence of mime. This right has been unlfarmly maintained . , PThis statement in Weeka made no mention of any right to search the place where an arrest occurs, but was strictly limited to a right to search the arrestee's "person." Eleven sears later. the Supreme Court in Car7011 v. Cxited States 0 embellished the Weeks' statement: "When a man LS legally arrested for an offense, whatever is found upon his person or in his control m,hich i3 unlawful for him to hale, and which may be used to prove the of-fense, may be seized and held ad erldence in the prosecution " - It should also be noted that here again the Court did not go so far as to state that the "place" where one is apprehended may be searched so long as there IS a ralid apprehension. Even so, in

4 Weeks Y Vnited Stater. 232 PS 383 11914). Tr.e Comf held the aarrantleia seizure of envelopes and letters by rhe Umted S!a:e* marlha: in the secured's hawe while the latter was a ~ a y was invalid

3 id ai 592e 26: U.S 132 (1925)1 Id at 158 Cairvll 5 8 3 not based on the seami- meldental ro hpprchansian doctrine, but on "exigent circumstanced doctrine This doctrme provides that when probable C B Y I ~ to search IS combined with exlgent cT-C Y ~ ? ~ B ~ C O J , aarranilenr search may be permmible Tho Cant held the exigency wan that the vehicle believed to contain contraband would be out of reach by the time that B warrant could be obtained. Thele facra led the eovrt ta validate the search

SEARCH IXCIDENT TO APPREHEKSION

Agnello 8. Criited States the Court added the following to the gratuitous statements in Weeks and Carroll, again by way of dictum :

The riEht wfhnut B search warrant canremporsneouJl? to search perron% larfuiiy arrested vhile committing a. crlme, and to searchthe piace where the arrest is made ~n order to find and seize things connected wth the ~rirntah Its fruits, OX as tho meam by ahxhit was -ommitttd. as well as u,eapanr and other things to effect anereape from custody, 1s not to be doubted*TIW years later, the dictum in Agnello served as the foundation of the Court's decision in Marron II. L'nitrd 5tatas.lo In that case, the Federal officers had secured a search warrant authorizing the seizure of liquor and certain articles used in its manufacture. Upon arriving at the place to be searched, they observed "that the place was used for retailing and drinking intoxicating liquors."" Since the accused was in charge of the premise8 to be searched, their observation led them ta conclude that sn offense was being committed in their presence justifying an arrest and an incidental search. The officers searched a closet for the items that *-ere listed in the warrant. When they came across an incriminating ledger not listed in the warrant, it was seized. The Court upheld the seizure of this ledger reasoning that since the agents had made a lawful apprehension "[Tlhey had a right without a warrant contemporaneously to search the place in order to find and seize the things uaed to carry on the criminal enterprise."

Shift 1

A few years later, this broad language in Marron was limited by Mr. Justice Butler the author of the opinions in Go-Bart Im-portiii3 Company c. l'nited Stotes 11 and Cnited States w , Lefkowitx." The search of a desk safe and other parts of an ofice in Go-Bart and a search of the desk drawer and a cabinet in Lefko-icitz, and the seizure of private papers as a result of these searches

8 269 US. 20 (1926). The Court held that the search of the defendant's

home which resulted in the iekzn~e of a can of cocaine was invalid %;nee Agneilo'r ea~lier arrest at the hime of a eo-conspirator had terminated the eonrp'Tacy.

__

'' Id. at 30

J"

27s u S 192 (19271

'(OP61) 99 'S'il 688 I I 'SOL 'SOL ?E 'PI 08

'SOL IS 'PI 8T

SEARCH INCIDENT TO APPREHENSIOX

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." w As a result of this search, the officers seized stamps with forged over-prints. The Court in affirming the conviction rejected the accused's contention that the warrantless search had been unlawful. The Court held that the search in its entirety fell within the concept of a search incident to apprehension Stating that there is a "right 'to search the place where the arrest is made in order to find and seize things connected with the crime. . . .'''23 The Court cited Hewis as "ample authority" for

its ~onclusion.~'

The Court rejected the practicability test of Tnipimo stating that the test "is not whether it wa8 reasonable to procure a search warrant, but whether the search was reasonable." 25

Shift 5

Chiinel c. Caliloi.nia go and Vale e, LmisiisieiuL 27 have renewed the debate over the exceptions to the warrant requirements, that IS, xhether a warrant is a prereriuiaitr tu a search whenever practicable or whether it is only one of a number of factors to be consldered in judging the reasonableness of a search.

I . Ciitmel

The facts of Chirnel are relatively simple. Late in the afternoon three police officers arrived at the defendant's home with a warrant far his arrest for burglary of a coin shop approximately thirty days before. This warrant had been procured earlier in the moming. Introducing themselves to the defendant's wife, they learned he wa3 not at home. They were invited ~n the house by Chimel's wife and waited there until he arrived from work, approximately fifteen minutes later. Upon entering the house Chirnel was immediately apprehended. The police officers asked for permission to search the premises, but the defendant objected. Over his ob. jection the officers searched the entire three bedmom house including the attic, the garage and small workshop. This search of the defendant's residence resulted in the seizure of numerous items which were admitted at trial over defense objection.

The Court indicated that a search incident to an apprehension

~ 22 Id. sf 69.

23 Id. st 61.24 Id. at 63.

Id. at 66

may include a "search of the arrestee's person and the area 'within his immediate control-construing that phase to mean the area from within which he might gain possession of a weapon or destructible evidence."26 The Court also deflned the area that might be searched as that "area into which an arrestee might reach in order ta grab a weapon or evidentiary items. . . .''z8 This spatial limitation on the search does not depend on a showing of an arrest timed to take place at a certain location so that the police might search the premises under the pre-Chime1 rule.30 In the absence of one of the well recognized exceptions to obtaining a warrant,81 there is no justification for "routinely searching" every room on the premises where the arrest occurs or for "searching through all the desk drawers or other closed or concealed areas." 31 The Court said it would not apply the standard of reasonableness, citing Mr. Justice Frankfurter's dissent in Rabinadtr :

To say that the search must be reasonable 1s to regvlre Pome criterion of rearon. It 13 no guide at all either far B jury or for dmtrict jl?dgPs or the police to say that "an unreasonable search'' i s forbldden -that the search must be reasonable. What 1% the teat ofrearon which maker a search reasonable? The test is the mason underlying znd expressed by the Fourth...