(a) A search incident to a lawful custodial arrest is justified in order to protect the safety of officers or others, or to prevent the destruction of evidence.
(b) Agencies should develop policies to ensure that searches incident to arrest are no broader than necessary to serve these purposes, and that they are not used as pretext to look for evidence of a crime or violation that is unrelated to the offense for which the individual was arrested.
(c) A search conducted at the time of arrest generally should be limited to a pat-down search of the arrestee and a search of the immediately surrounding area from which the arrestee could access a weapon or evidence. Agencies should limit the use of more intrusive searches to circumstances in which there is reasonable suspicion to believe that the arrestee is concealing a weapon or evidence that would not be uncovered through a pat-down search.
(d) An officer may conduct a more thorough search of the arrestee’s person or property after transport to the stationhouse or to a detention facility. Such search should either:
- (1) consistent with Chapter 5, be conducted pursuant to a written policy that specifies the scope of the search and is applied evenhandedly, see §§ 5.01 to 5.06; or
- (2) be based on reasonable suspicion, documented in advance, that the search will turn up evidence or contraband.
a. Permissible rationales. Searches conducted incident to arrest fall under one of the longstanding exceptions to the general rule that searches of persons or property must be conducted pursuant to a warrant supported by probable cause. Although a search incident to arrest is triggered by a suspicion-based action—an arrest supported by probable cause—the search itself need not be supported by any individualized suspicion that it will turn up evidence or a weapon. Thus, some of the same concerns about suspicionless searches reflected in § 5.01 apply here.
Courts have recognized two permissible justifications for dispensing with both warrants and cause in this context: officer safety and the preservation of evidence. Taking an individual into custody exposes officers (or others present) to risk of harm, and also may increase the risk that the arrestee will attempt to destroy evidence during transport or processing. The degree of risk that a particular individual poses may not always be apparent to an officer at the time of the arrest. For this reason, courts have permitted officers to conduct a protective search absent any articulable suspicion that it is in fact necessary in that particular instance.
When neither of these risks is present, however, the mere fact of arrest is insufficient to justify the search. For example, courts have long held that, absent exigent circumstances, officers must obtain a warrant before searching an arrestee’s home or office beyond the immediate grab area. Officers also are not permitted to search an arrestee’s vehicle absent a reason to believe that the vehicle contains evidence related to the crime of arrest. And they are required to obtain a warrant before searching the contents of an arrestee’s cellular phone or computer.
b. Potential for abuse. Although searches incident to arrest further important law-enforcement goals, they also can be subject to abuse. Such searches require no independent, individualized justification beyond the reason for the arrest itself. Thus, the authority to search incident to arrest creates an incentive for officers to arrest individuals in circumstances in which they otherwise would have issued a warning or a citation. Officers also have been known to arrest individuals for minor offenses, search them for evidence of drugs or other contraband, and then let them go without ever taking them into custody. In such instances, the search itself becomes the goal, rather than a byproduct of an officer’s decision to take someone into custody. Those practices can unduly increase the overall incidence of arrest, as well as the collateral costs imposed on individuals who are arrested. See § 4.05. Still another concern is that searches incident to arrest may be more intrusive than is in fact necessary to protect officers or prevent the destruction of evidence. This is particularly true of searches conducted out in the field. Such searches often occur in a public setting in view of others, which increases the level of stigma or humiliation on the part of the arrestee. At the same time, because they take place in a noncustodial setting—and typically without a supervisor present—there is a greater potential for abuse.
c. Limitations on scope. In light of the aforementioned concerns, a number of jurisdictions have placed limits on searches incident to arrest, either by prohibiting such searches altogether following an arrest for minor offenses or by prohibiting custodial arrest for minor offenses. Such policy changes may be especially warranted in jurisdictions that are unable to address the pretextual use of arrests in other ways. These Principles do not adopt such a categorical rule. Instead, § 4.05 makes clear that agencies should limit the use of arrests in circumstances in which less intrusive means would be equally effective at promoting public safety or preserving order.
This Section adds two further limitations: (1) that searches incident to arrest should not be used as a pretext to look for evidence of crimes unrelated to the offense in question, and (2) that searches conducted in the field should generally be limited to a pat-down unless there is cause to believe that the arrestee is concealing a weapon or evidence that would not be uncovered during a pat-down search. The policy urged here would help reduce the incentive to conduct unnecessary arrests in order to look for evidence of crime, while at the same time minimizing the intrusiveness of searches that do in fact take place. As discussed below, officers could then conduct a more thorough search after transport—so long as the search is conducted pursuant to a written policy that is applied evenhandedly to all arrestees. Although the Supreme Court in United States v. Robinson interpreted the Fourth Amendment to permit a more comprehensive search incident to arrest, a number of jurisdictions, including New York City, have limited the use of field searches in the manner described in this Section.
Jurisdictions may wish to consider additional measures as well. For example, to address concerns over pretextual use of searches incident to arrest—particularly in circumstances in which the officer has no intention of actually taking the person into custody—agencies could require officers to notify dispatchers of the arrest, including the offense for which the person was arrested, prior to conducting the search. Doing so would both discourage pretextual arrests and enable departments to monitor officer compliance with these Principles.
d. Distinguishing two kinds of searches. This Section distinguishes between searches conducted at the time of the arrest (typically out in the field) and subsequent searches that are conducted either at the stationhouse or at a detention facility. Although courts have at times justified both categories of warrantless searches as “incident to arrest,” they differ in important ways that should be reflected in agency policy and practice. Searches conducted contemporaneously to a custodial arrest are justified by an immediate need to protect officer safety and secure evidence. In this regard, they are similar to other protective actions that officers sometimes are permitted to take in the context of a traffic or pedestrian stop—such as ordering a driver to step out of the car or conducting a frisk.
Subsequent searches of arrestees after transport to the station or to a detention facility—including fingerprinting or DNA collection, inventory searches of impounded vehicles, and searches of the arrestee’s person or property—are justified by a much broader range of law-enforcement and institutional goals, which are not necessarily related to the individualized circumstances of the particular arrest in question. These include the need to identify the arrestee, to secure the arrestee’s belongings, and to protect jail guards and inmates by ensuring that potential weapons or contraband are not brought into the facility. In short, they need not be justified by concerns over officer safety or the destruction of evidence alone. Although these search procedures are triggered by the fact of arrest, they are indistinguishable from other kinds of suspicionless, programmatic searches, and should be conducted according to the suspicionless search and seizure Principles in Chapter 5. In particular, they should be conducted either pursuant to written policies that are applied evenhandedly to all individuals who are taken into custody, or on the basis of articulable, individualized suspicion, documented in advance, that a more intrusive search is required of an individual.
Searches incident to arrest are justified on two grounds: protecting the safety of the officer and securing any evidence that might be on or near the arrestee. As the U.S. Supreme Court explained in United States v. Robinson, 414 U.S. 218 (1973), a custodial arrest places the officer and the arrestee “in close proximity” for an extended period of time. Evidence shows that attempted arrests lead to officer injuries and fatalities more than almost any other police activity. See 2015 Law Enforcement Officers Killed & Assaulted, Fed. Bureau of Investigation: Uniform Crime Reporting, tbl. 23, 73, 101. Although dissenting judicial opinions of the last century on occasion have called the legality of searches incident to arrest into question, see, e.g., Harris v. United States, 331 U.S. 145, 195 (1947) (Jackson, J., dissenting); Davis v. United States, 328 U.S. 582, 605 (1946) (Frankfurter, J., dissenting), searches incident to arrest have a long history of acceptance in American law as well as English law, in which they were used by constables at least since the 17th century. See Sheppard, The Offices of Constables, Ch. 8 § 2, no. 4 (London 1650); Welch, Observations on the Office of Constable 12, 14 (1754).
Still, there are two problems with the search-incident-to-arrest authority as presently constituted. First, in certain circumstances it enables officers to conduct searches in a manner that is more intrusive than is justified by the underlying rationales of safety and evidence gathering. Second, the authority incentivizes officers to arrest individuals in circumstances in which they otherwise would have issued a warning or a citation. See, e.g., State v. Sullivan, 16 S.W.3d 551, 552 (Ark. 2000) (officer testified that he arrested driver instead of issuing a citation because he suspected the driver of being involved with narcotics); State v. Pierce, 642 A.2d 947, 961 (N.J. 1994) (expressing concern that an expansive search-incident-to-arrest doctrine “creates an unwarranted incentive for police officers to ‘make custodial arrests which they otherwise would not make as a cover for a search which the Fourth Amendment otherwise prohibits.” (internal citations omitted)).
The Supreme Court has mitigated, though not resolved, these two related problems of pretextual and overly intrusive searches. In Arizona v. Gant, 556 U.S. 332 (2009), the Court narrowed the scope of searches incident to arrest in the automobile context by holding that officers may not search an arrestee’s vehicle unless they have reason to believe that the arrestee could gain access to the vehicle or that the vehicle contains evidence related to the crime of arrest. In Riley v. California, 134 S. Ct. 2473 (2014), theCourt held that the permissible scope of a search incident to arrest does not include the digital contents of the arrestee’s cellular phone. Despite these selective limitations, thegeneral rule permitting searches incident to arrest endures, as do the attendant challenges of pretextual and overly intrusive searches.
These challenges could be addressed in a variety of ways. Several state courts and legislatures have rejected the Supreme Court’s broad rule and held that a search incident to arrest is invalid unless the circumstances justify it under one of the two rationales of evidence protection and safety. For example, in State v. Caraher, 653 P.2d 942 (Or. 1982) the Supreme Court of Oregon held that a search incident to arrest must be both relevant to the underlying crime and reasonable in light of all the facts. Similarly, in Zehrung v. State, 569 P.2d 189 (Alaska 1977), the Supreme Court of Alaska held that officers may only conduct a search incident to arrest in order to search for weapons or to look for evidence of the crime for which the person is arrested. In State v. Kaluna, 520 P.2d 51, 60 (Haw. 1974), the Hawai’i Supreme Court required that searches incident to arrest be “no greater in intensity than absolutely necessary under the circumstances.” Id. at 58. The Model Code of Pre-Arraignment Procedure similarly adopts a limitation on the circumstances that permit a warrantless search. See Model Code of Pre-Arraignment Procedure § 230.2 (Am. Law Inst. 1975) (prohibiting searches incident to “a traffic offense or other misdemeanor”).
A number of states also prohibit custodial arrests for certain types of offenses, thereby eliminating the possibility of a search incident to arrest. See, e.g., Ala. Code § 32–1–4 (1999) (prohibiting custodial arrests for all misdemeanor traffic offenses not involving injury to persons or driving while under the influence); Cal. Veh. Code Ann. § 40504 (West 2000) (prohibiting custodial arrests, subject to certain exceptions, for non-felony traffic offenses); Ky. Rev. Stat. Ann. § 431.015(1), (2) (Michie 1999) (prohibiting custodial arrests, subject to exceptions, for misdemeanors if there are reasonable grounds to believe that the person being cited will appear in court); La. Rev. Stat. Ann. § 32:391 (West 1989) (prohibiting custodial arrest for traffic violation offenses, subject to exceptions; permitting custodial arrest for traffic misdemeanor and felony offenses); Minn. R. Crim. P. 6.01, subdiv. 1(1)(a) (requiring issuance of citations in misdemeanor cases “unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation.”); N.M.S.A. 1978, § 66-8-123 (prohibiting custodial arrests, subject to certain exceptions, for misdemeanor traffic offenses); S.D. Codified Laws § 32–33–2 (1998) (prohibiting custodial arrests for misdemeanor traffic violations, subject to exceptions); Tenn. Code Ann. § 40–7–118(b)(1) (1997) (prohibiting custodial arrests for misdemeanors, subject to exceptions); Va. Code Ann. § 46.2–936 (Supp. 2000) (prohibiting custodial arrests, subject to certain exceptions, for misdemeanor traffic offenses). In states that leave discretion to officers, a number of courts have held that arrests for minor misdemeanors amount to an abuse of the officers’ discretion to decide whether to make an arrest. State v. Brown, 792 N.E.2d 175 (Ohio 2003) (holding that, absent certain special circumstances, an arrest for a minor misdemeanor violates the state constitution); State v. Bayard, 71 P.3d 498 (Nev. 2003) (finding that an officer abused his statutory discretion by using custodial arrest for a traffic violation); State v. Bauer, 36 P.3d 892 (Mont. 2001) (finding that an officer abused his statutory discretion by using custodial arrest for possession of alcohol by a minor); State v. Harris, 916 So.2d. 284 (La. Ct. App. 2005) (finding that an officer abused his statutory discretion by using custodial arrest for possession of alcohol by a minor). Elsewhere, these Principles likewise urge states and agencies to encourage or require officers to consider alternatives to arrest, including warnings or citations. See § 4.05.
In dealing specifically with the problems of pretextual and overly intrusive searches, these Principles do not adopt either of the two categorical approaches. Instead, this Section makes clear that an arrest should not be conducted as a pretext to search. See, e.g., McCoy v. State, 491 P.2d 127 (Alaska 1971) (“The arrest must not be a pretext for the search; a search incident to a sham arrest is not valid.”). And it reduces both the incentive for officers to conduct pretextual arrests and the overall intrusiveness of searches by limiting the scope of a search that may be conducted out in the field to a pat-down, unless there is cause to believe that a more exhaustive search is necessary to uncover evidence or a weapon on the arrestee’s person. This Section permits officers to conduct a more thorough search at the stationhouse or a detention facility, so long as that search is conducted in accordance with the Principles on suspicionless searches in Chapter 5, or on the basis of reasonable suspicion that the arrestee is concealing a weapon or contraband in a manner that would not be detected through a routine search.
By drawing a distinction between searches out in the field and searches conducted back at the stationhouse, this Section ensures a closer fit between the scope of a search incident to arrest and its permissible rationales. The former is aimed primarily at preventing the destruction of evidence and ensuring that the individual arrested is safe for transportation. The latter furthers the additional goal of ensuring the integrity of the detention facility and the safety of other detainees. At the same time, this Section recognizes that all custodial arrests, no matter the underlying offense, may present a danger to the officer—and that officers should therefore be permitted to conduct a pat-down search following any custodial arrest.
A number of jurisdictions have adopted similar policies. The New York City Police Department (NYPD), for example, instructs officers to conduct a pat down in the field, and to conduct a full search only at the station. See NYPD Patrol Guide, Procedure No. 208-05, Arrests – General Search Guidelines. The Honolulu Police Department similarly limits the search at the scene to a pat down. See Honolulu Police Department Policy, Security Control of Arrestees. Colorado law limits the scope of a search incident to an arrest for a minor traffic violation or for a minor municipal offense to a protective pat-down search for weapons. See People v. Clyne, 541 P.2d 71 (Colo. 1975) (overruled on other grounds by People v. Meredith, 763 P.2d 562 (Colo. 1988)).