Search Incident to Arrest

A person and certain property of a person who is arrested may be searched if that person is lawfully arrested.  The search may be conducted before, during, or after the arrest, and includes items within a person’s “wingspan”.  See Chimel v. California, 395 U.S. 752; (1969); New York v. Belton, 453 U.S. 454 (1981).  In Arizona v. Gant, 129 S.Ct. 1710 (2009), the Supreme Court attenuated law enforcement’s authority to search a vehicle incident to arrest by prohibiting officers from conducting a search incident to arrest where the officer has reason to believe that contraband or evidence would be found in a vehicle (e.g., an officer cannot arrest a person for running a stop sign and then search the vehicle incident to arrest for that offense).  Note, however, that other exceptions to the warrant requirement such as an inventory search, may still apply.

Inventory Search

An inventory search occurs when a person or property is searched to locate items for safekeeping following an arrest.  The most common inventory search is the search of a vehicle following the arrest of the driver on a public roadway.  In order for an inventory search to be valid, law enforcement must perform the search in accordance with established policy for conducting such searches.  If there is no need to maintain property for safekeeping, an officer may lawfully not search a person or property under the guise of an “inventory”.  For example, if the driver of a vehicle is arrested in his driveway, there is no need for the vehicle to be towed and law enforcement does not have to maintain property of the arrestee.  An inventory under these circumstances would not be a lawful because there is no valid reason to search the vehicle for items for safekeeping.

Vehicle Searches

Law enforcement may lawfully search a vehicle without a warrant if an officer has probable cause to believe contraband or evidence of a crime are within a vehicle.  Commonly, an officer will report that he or she smelled the odor of burning marijuana emanating from a vehicle during a routine traffic stop, and this will form the basis of a probable cause search of a vehicle.  If an officer has probable cause to believe that contraband or evidence of a crime are within a vehicle, the officer may also search containers that might contain the contraband or evidence. See Carroll v. U.S., 267 U.S. 132 (1925).  State v. Guzman, 959 S.W.2d 631 (Tex. Crim. App. 1998).  Moreover, pursuant to Wyoming v. Houghton, 526 U.S. 295 (1999), law enforcement may search passengers and their property pursuant to the probable cause search of a vehicle.

© 2021 David A. Nachtigall, Attorney at Law, PLLC