Section 9.33 Search Incident to Arrest

• Library: Criminal Practice 2012 Supp

a. (§9.33) Search Incident to Arrest

A lawful custodial arrest brings with it the right to search the person of the arrestee, United States v. Robinson, 414 U.S. 218 (1973); State v. Esquivel, 987 S.W.2d 481, 483–84 (Mo. App. W.D. 1999), and the area within the arrestee’s immediate control. Chimel v. Cal., 395 U.S. 752, 763 (1969); State v. Vitale, 801 S.W.2d 451, 454 (Mo. App. E.D. 1990). The justification for this exception is based on both the need to protect the police and others by disarming the suspect and the interest in preserving possible evidence of crime. Robinson, 414 U.S. at 235; State v. Vitale, 795 S.W.2d 484, 486–87 (Mo. App. E.D. 1990). The right to search arises immediately upon arrest, and no individualized suspicion or showing of need is required. State v. Lanear, 805 S.W.2d 713, 718 (Mo. App. W.D. 1991) (citing State v. Blair, 691 S.W.2d 259, 261 (Mo. banc 1985), cert. dismissed, 480 U.S. 698 (1987), and Robinson, 414 U.S. at 235).

Search incident requires a “custodial” arrest. In Knowles v. Iowa, 525 U.S. 113 (1998), the United States Supreme Court rejected the purported doctrine of “search incident to citation.” Finding that the justifications for a search incident to arrest do not come into play unless the defendant is taken into custody, the Court held that Iowa’s practice of permitting such searches when officers could, but do not, effectuate full custody arrests violated the Fourth Amendment. As long as the arrest is lawful and the individual is to be taken into custody, the right to search incident automatically comes into play, and no further showing is required. Neither the nature of the offense nor the seriousness of the charges has any bearing on the right to search. Gustafson v. Fla., 414 U.S. 260 (1973); Vitale, 795 S.W.2d at 487–88.

Generally, the search incident must follow a valid, lawful arrest. It “may not precede an arrest and serve as part of its justification.” State v. Kovach, 839 S.W.2d 303, 311 (Mo. App. S.D. 1992). When, however, the “formal arrest follow[s] quickly on the heels of the challenged search,” it is not “particularly important that the search preceded the arrest rather than vice versa” as long as the fruits of the search are “not necessary to support probable cause to arrest.” Rawlings v. Ky., 448 U.S. 98, 111 and n.6 (1980).

The search of the person and the person’s immediate effects may occur immediately or later at the station. An officer’s taking possession of an item and thereby reducing it to...