What Is an Arrest Search?

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 What Is An Arrest Search?

The Fourth Amendment of the Constitution of the United States of America is what protects U.S. citizens against unreasonable searches and seizures. However, this protection is only against searches and seizures that are conducted by government officials, which includes the police.

A seizure would be the arrest or detention of a person, made by the government or police. It is common that courts will group unreasonable searches and seizures as one issue; however, an unreasonable search can occur without anyone being detained in connection with the search.

In legal terms, a search would be an inspection or physical invasion of a person’s reasonable expectation of privacy. Pat-downs and security measures such as metal detectors and airport scanners can be used in order to search an individual. Generally speaking, when thinking of a search, people think of physically looking through a person’s property such as a house or car in order to find evidence.

However, it is important to note that the term “search” is considerably broad, and may also refer to:

  • A phone tap;
  • Access to computers; and/or
  • Observation of a home or GPS locator.

An arrest search is a search that is conducted by the police when they are in the process of arresting a suspect for a crime. This is sometimes referred to as a “search incident to a lawful arrest.” Generally, the purpose of an arrest search is to ensure that the suspect is relieved of any weapons or dangerous items that might harm the police who are arresting them. Another purpose for such a search would be to discover any evidence of criminal activity that is related to the arrest.

An example of this would be how the police may search a person who was arrested for robbery. If they were to find a weapon or stolen items on the person, those items could be used as evidence in the upcoming criminal trial.

What Is An Unreasonable Police Search?

When a person has a reasonable expectation of privacy, that expectation is subjective. What this means is that a person expects this specific location, or this specific activity, to be private. Generally speaking, this expectation must be supported by what the public also recognizes as private.

An example of this would be if a person is in a busy restaurant and steps into a private room in order to make a phone call; there is a reasonable expectation of privacy. However, if they answer their cell phone while at their table and talk loud enough for the people around them to hear, there is no privacy expectation. On a similar note, if they are in a private room but still speaking loud enough for others to hear, their expectation of privacy is unreasonable outside of the room.

A person’s privacy largely depends on two things:

  1. The behavior of the person, in this example speaking loudly on the phone; and
  2. The social point of view, in this example stepping away from others in order to make a phone call.

Unreasonable police searches are prohibited by both state and federal criminal laws, and occur when law enforcement conducts a search with no warrant and no probable cause. Probable cause exists when it is more likely than not that evidence of a crime can be found in the area that is being searched.

A search warrant is issued by a judge and provides police with permission to search for specific evidence. Searches that are initiated without an issued warrant are considered to be unreasonable under the Fourth Amendment. Additionally, any evidence that is found during these searches will most likely not be used against a defendant in court; it will be considered inadmissible.

However, it is important to note that there are a few exceptions that allow officers to search without a warrant. Some examples of such exceptions include, but may not be limited to:

  • When a person consents, freely and voluntarily, to having their property searched;
  • When the evidence is in plain sight of the officer, or in plain sight of the public;
  • If the police are chasing, or in “hot pursuit,” of a person;
  • When a person is arrested, officers may search their body and immediate surroundings, although this is limited to the search of weapons as previously mentioned;
  • Vehicles during a traffic stop when there is a reasonable belief that evidence and/or illegal items are present; and
  • If the police fear evidence being destroyed, or people being harmed immediately.

An example of this would be if an officer believes that a specific person is selling drugs. Without a warrant, the officer enters that person’s house when they are not home and searches for the drugs. This would be an unreasonable search, and as such, any evidence found during the search will most likely be excluded in court. If the suspect were home, it would still be unreasonable without a warrant unless they invited the officer inside. Another exception would be if the officer approached the house, knocked on the door, and noise coming from inside the house indicated illicit activity.

Do Police Need A Search Warrant For An Arrest Search?

Generally speaking, police do not need a search warrant in order to conduct an arrest search. However, they must ensure that the arrest is being conducted properly; meaning, they should have an arrest warrant for the person, or they should have probable cause to make the arrest.

In most jurisdictions, the scope of an arrest search is limited regarding what the police can search. The police are generally only allowed to search the area that is immediately surrounding the arrested person, which is usually indicated as an “arms span” around the person.

Additionally, the search is frequently limited to any weapons that the person might have used to commit a crime. This may also include any drugs, paraphernalia, and/or other implements that are connected with the arrest.

To reiterate, evidence that is wrongfully obtained without a warrant or without being connected to a valid arrest cannot be entered in a trial. As such, police must ensure that they are not violating a defendant’s rights when they are conducting a search incident to a lawful arrest.

What Else Should I Know About My Rights Against Unreasonable Searches By The Police?

Officers are supposed to adhere to what is known as the “knock and announce” rule. This rule requires police who are issuing warrants to knock, and make their presents and purpose known. Apart from the exceptions previously mentioned, police may enter the property if no one answers the door after a significant delay. However, this entry must be necessary and reasonable, such as preventing evidence from being destroyed.

Violating the Fourth Amendment on a criminal level would result in nothing more than the possible exclusion of evidence at trial. However, some circumstances may still allow for evidence to be introduced, even if an individual right was violated. A claim can be filed against the police in civil court for damages; however, a civil court win would not exclude otherwise introduced evidence in criminal court.

Do I Need An Attorney For An Issue Associated With An Arrest Search?

Arrest searches and other criminal matters require contacting an experienced and local criminal lawyer. An attorney will be best suited to helping you understand your legal rights and options according to your state’s specific laws. They will also be able to represent you in court, as needed, in order to determine whether a search was conducted properly.


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