CP Ch. 17- Search Incident to Arrest

Question 1

When Officers have Probable Cause to arrest, they may (blank)

Answer 1

Search.

Question 2

True or false:

The officers belief that their search might lead to evidence of another crime will, by itself, invalidate their original decision to arrest.

Answer 2

False. It will not.

ex. an arrest for trespass on school property not invalid just because officers thought they might find drugs during their search incident to arrest.

• However, if an arrest is purely driven by a desire to search, a court may suppress the evidence.

Question 3

At the time that probable cause is developed, must police arrest in order to search?

Answer 3

No. Comm V Skea (drug in plain view in car, envelope with 4 diamonds in defendants pocket)

**Probable cause to arrest is the minimum requirement for a search incident to arrest. Whether the officers choose to follow through with an actual arrest is left to their sound discretion.

Question 4

Officers uses a name and phone number found on an arrestee to arrange to buy $100 marijuana from the defendant. Defendant shows up, but refuses to sell to the undercover because he is nervous. He demands payment first. Undercover refuses. Other officers move in and search the defendant, finding an unlawfully possessed gun. However, there is no marijuana anywhere in his vehicle or on his person. Is this arrest valid or invalid.

Answer 4

Valid.

At the time officers moved in and searched the defendant, they had probable cause to arrest for possession with intent to distribute. They could search him at the scene.

Question 5

True or false:

A search may be delayed in order to seize a suspects clothing and shoes.

Answer 5

True.

Ex. Proper to seize boots worn at time of arrest once officer noticed blood stain; boot tread matched the one at crime scene.

Question 6

If police lawfully obtain a defendant’s clothing (coat, for example) incident to arrest, do they need a separate warrant to have the coat chemically analyze for blood stains?

Answer 6

No.

Testing lawfully obtained evidence automatically follows.

Question 7

Once police lawfully obtain credit cards, may they retrieve information from the magnetic strips? If so, with or without a warrant?

Answer 7

Without a warrant.

Ex. Arrestee found in possession of 68 gift cards, encoded with stolen account numbers

“Cardholders do not have a reasonable expectation of privacy in the magnetic strips which are routinely read by third parties…”

Question 8

An inspection of private areas without any scrutiny of body cavities. This defines a:

Answer 8

Strip search.

Question 9

Extends to a visual inspection of the anal and genital areas. This defines a:

Answer 9

Visual body cavity search.

Question 10

Involves touching a body cavity:

Answer 10

Manual body cavity search.

Question 11

Manual body cavity search. It may only be done with a warrant (blank) and supported by a (blank).

Answer 11

It may only be done with a warrant issued by a JUDGE, and supported by a high degree of probable cause.

Question 12

In order to conduct a strip or visual body cavity search, police must have (blank) their suspect possesses contraband or a weapon that might not be discovered during a manual search.

Answer 12

Probable cause.

Question 13

In order to conduct a strip or visual body cavity search, police must have probable cause their suspect possesses (blank) or (blank) that might not be discovered during a manual search.

Answer 13

Contraband or a weapon.

Question 14

Strip or visual body cavity searches must always be conducted in a:

Answer 14

Non-humiliating , professional manner.

Question 15

Recommended safeguards to ensure strip or visual body cavity searches are conducted in a non-humiliating, professional manner: (6)

Answer 15

1. Same gender (officer, offender)
2. Private room (whenever possible)
3. Only investigating officers (can see the person being inspected)
4. Full nudity unnecessary. (top half first, then bottom half)
5. Emergency circumstances- if necessary to inspect in the field, do it in least intrusive way possible
6. Videotape- whenever possible

Question 16

What differentiates a strip search from a manual body cavity search?

Answer 16

Touching, probing, or manipulating of body cavity.

Ex. “flicking” and item out without touching body = strip search

Question 17

Standard of proof to conduct strip search:

Answer 17

Probable Cause

Question 18

Standard of proof to conduct visual body cavity search:

Answer 18

Probable Cause

Question 19

Standard of proof to conduct manual body cavity search:

Answer 19

High degree of Probable Cause

Plus a search warrant signed by a Judge.

Question 20

In reference to manual body cavity searches, direct observation of an object in the anal or genital opening provides the:

Answer 20

High level of probable cause required got a manual body cavity search warrant.

Question 21

When officers encounter an object (typically drugs) inside a person’s anal or genital opening, the best approach is: (3 options)

Answer 21

Option 1: transport to hospital and have a medical clinician remove the object
Option 2: Request the arrestee voluntarily remove the object
Option 3: Obtain a search warrant from a judge. - Direct observation provides “high degree of probable cause “. Explain in affidavit how officers gave subject the chance to remove the item. This proves the “particularized need” also required by the judge in order to sign the warrant.

Question 22

Search Incident to Arrest: Officers may search for: (2)

Answer 22

1. Weapons (regardless of the reason for arrest)
2. Evidence related to the crime for which the arrest was made.

Seize any other evidence found during a search for weapons or evidence related to the arrest.

Question 23

During a search incident to arrest, 276 Sec. 1 states that officers may:(3)

Answer 23

1. always search for weapons, regardless of the reason for arrest
2. Only search for evidence related to the crime for which the arrest was made.
3. seize any other evidence found during a search for weapons or evidence related to the arrest.

** 276 Sec. 1 only regulates search incident to arrest. if a search can be justified on another legal ground, the limitations do not apply.

Question 24

Search incident to arrest: a search must be (blank and blank) reasonable under 276 sec 1.

Answer 24

Objectively and subjectively reasonable.

Note: The objective test is whether the search related to the reason for arrest. The subjective test is whether the officer was really looking for arrest related evidence.

Question 25

Search incident to arrest: The (blank) test is whether the search related to the reason for arrest. The (blank) test is whether the officer was really looking for arrest related evidence.

Answer 25

1. Objective
2. Subjective

Question 26

May police still search the “grabbing area” incident to arrest, if the subject has already been placed in handcuffs?

Answer 26

Yes.
The fact that the defendant is handcuffed does not eliminate the officers right to check the grabbing area.

Also, ex. handcuffed arrestee was escorted back into his room so police could get pants for him. When he sat on the far end of the bed, away from the closet, officers lifted the mattress and found a gun underneath where he had been sitting. Proper.

Question 27

“Grabbing area”: the search extends to the area within an arrestees reach to prevent his ability to access: (2)

Answer 27

(1) a weapon; OR
(2) destroy evidence

Question 28

Is “grabbing area” established at time of arrest, or time of the search incident to arrest?

Answer 28

Time of arrest.

Even though defendant was handcuffed and was no longer in the same room as his duffel, the bag had been in grabbing area at time of arrest. Proper to search the bag incident to arrest.

Question 29

Proper or improper:

Searching outside of the grabbing area, incident to arrest:

Answer 29

Improper

Male arrested on the front steps of his home; search of his dwelling not justified.

Question 30

276 sec 1 has little impact on the search of a person , because Sec 1 always allows for:

Answer 30

Search for weapons, REGARDLESS of the underlying crime (ex. drinking in public-violation of city ordinance)

Question 31

Search incident to arrest: Is seizure of any “hard item” justifiable?

Answer 31

Yes.
“Any hard object left in the possession of a suspect who is being arrested…may be used as a weapon”.. My note: that is why paper bills are ok in the cell, change would not be

Question 32

If you arrest someone on an outstanding warrant for drug related charges, may you search them for drugs incident to arrest, as evidence of the crime?

Answer 32

No.
Crimes of the warrant were committed at some unknown time in the past, therefore you cannot search incident to arrest for evidence of those crimes.

Note: there may be some cases where searching for evidence of the crime would be justified in a warrant arrest.

Question 33

True or false:

A container discovered while looking for weapons may yield probable cause of a new offense, and its search may follow.

Answer 33

True.

Question 34

Defendant arrested on outstanding warrant for 209A violations and drug violations. During search incident to arrest, Officer found pill bottle with name and one pill inside. In another pocket felt hard object, it was a “One Touch” container that should contain thin strips. He shook it and it sounded like pills were inside. He was charged with illegal drug possession. Proper or improper, and why?

Answer 34

Could not search for evidence of past drug charges during warrant arrest.

After he shook the container and heard pills, the container obviously did not contain a weapon. SJC felt he was not authorized to open the container.

*HOWEVER: In a separate case, trooper wisely explained that his reason for looking inside a pill bottle was not protection. It was his NEW probable cause that defendant possessed illegal drugs.

Question 35

Search incident to arrest: Seizure of keys justified if potential evidence or weapon, but not:

Answer 35

But not to determine Identity.

Question 36

Seizure of keys are justified if potential evidence or weapon, NOT to determine ID.

Man approached by officers at the entrance of a bar and gave them a false name. He was arrested for public drinking. Search incident to arrest, they recovered a key for a GM car. An officer tried the key in the GM’s in the lot. When he found the owners car, he tried the key in the trunk and opened it. He then used his flashlight and saw what appeared to be cocaine under the front seat. Officer retrieved the cocaine. What are the 4 issues with this case cited in the book?

Answer 36

1. No seizure (of keys) as EVIDENCE- charge was public drinking.
2. Officers did not claim that they believed the keys to be dangerous. (Note: Officers should routinely seize key chains incident to arrest as potential weapons. )
3. No authorization for identity check - SJC “questions of identity” must be solved by “less intrusive means” (ex. fingerprint, photos during booking) if thesse methods fail, identity must “be resolved at arraignment”.
4. No motor vehicle exception or plain view: No motor vehicle exception because officer did not have PC when he appreached the car. No plain view, because officer was only present there because of initial, IMPROPER seizure of the keys.

Question 37

Woman told police a man she knew was keeping a bag containing drugs and guns in her apartment. Police came, inspected the bag, and showed her a photo array. She ID’d the defendant. Police went to defendants house and arrested him outside. Search incident to arrest, they removed a loop of keys- which included a key to the woman’s apartment. Proper or improper, and why?

Answer 37

Proper.

Since the arrest involved the possession of narcotics and guns in another apartment, police wisely believed that one of his keys might open the apartment and link him to the stash. I.E. keys were EVIDENCE.

Question 38

May police automatically search a cell phone incident to arrest?

Answer 38

No. They need consent or a warrant.

Question 39

Police may not search a cell phone incident to arrest. They need (blank) or (blank)

Answer 39

Consent or warrant.

Question 40

Police may not search a cell phone incident to arrest. They need consent or a warrant. The author recommends: (6)

Answer 40

1. Check phone to assess whether it is a weapon (there have been cases where phone turns out to be disguised weapon)
2. View any texts or other markings on the phones exterior (Ex. texts that pop up)
3. Consider exigent circumstances to justify answering a phone call or conducting a warrantless search (Ex. kidnapping, sexual enticement, etc)
4. Secure the phone only if there is Probably Cause that it contains evidence
5. Inform the defendant of his search options- either consent or warrant.
6. Conduct consent search or apply for warrant

Question 41

Is viewing texts (seeing a text “pop up”) or other markings on the phones exterior considered a search?

Answer 41

No. Not a search to view the outside of a phone.

Question 42

Police may not search a cell phone incident to arrest. They need consent or a warrant. Secure the phone only if there is (blank) that it contains evidence.

Answer 42

Probable cause.

Question 43

Police may not search a cell phone incident to arrest. They need consent or a warrant. In order to ask for consent, police must have what?

Answer 43

Probable cause. Otherwise they will seek a warrant.

Question 44

Police may move an arrested person for a (blank) and secure the area.

Answer 44

For a legitimate purpose. (Ex escorting someone back inside to get a coat) (Escorting someone from one room to another to get dressed, etc)

Question 45

Police may (blank) open a container to discover weapons an arrestee might access.

Answer 45

Immediately.

Ex. About to be placed under arrest for unlicensed operation, operator unexpectedly handed passenger a canvas gym bag. The officer grabbed it, finding a large amount of cocaine. The officer was motivated by safety, and bag as large enough to contain a weapon. Proper.

Question 46

Search incident to arrest: May police open a container if they have probable cause that it might contain evidence related to the arrest?

Answer 46

Yes.

Question 47

Joseph and Nancy Netto , in desperate need of money to buy heroin, robbed and murdered their neighbor. The next day police found the Nettos at a motel. Police entered their room with a warrant and removed them in handcuffs. Officers then seized a leather bag, pocketbook, and some clothes from the room. Did the fact that suspects were handcuffed and removed end the officers authority to immediately return to the room and search?

Answer 47

No. Search was proper.

“The police are entitled to a bright line rule that permits them, even in the absence of exigent circumstances, to search a bag carried by a person whom they lawfully arrest… where there is also probable cause to believe that the bag contains evidence of the crime for which the arrest was made.”

Question 48

Incident to arrest. Summary: If officers feel; there is a dangerous object inside or evidence related to the underlying arrest, they may search the arrestees container at the scene. If not, they should secure it and wait until (blank) to open it.

Answer 48

The booking inventory.

Question 49

Does the scope of search incident to arrest extend to the trunk of a vehicle?

Answer 49

No. Never.

Question 50

Motor vehicle. The scope of a search incident to arrest extends only to the (blank) never the (blank).

Answer 50

Extends only to the passenger compartment, never the trunk.

Question 51

MV. Search incident to arrest: Once occupants are removed (and wont be returning, ex. under arrest), officers cannot justify a search incident to arrest of the passenger for (blank)

Answer 51

Weapons.

Question 52

MV. Search incident to arrest: Once occupants are removed (and wont be returning, ex. under arrest), officers cannot justify a search incident to arrest of the passenger for weapons. However, officers may search the compartment, regardless of the arrestees custody status, if they are looking for:

Answer 52

Evidence associated with the arrest.

Question 53

Vehicle search for evidence depends on the:

Answer 53

Crime being investigated.

Question 54

Trooper stopped the defendant in his truck and arrested him on an outstanding warrant for A+B. Defendant was handcuffed and moved to the rear of his truck. No one else was in the truck. Trooper observed an empty holster on the defendant’s belt. With two other troopers on scene, he searched the truck cab and found a gun. He then asked the defendant if he was properly licensed to carry a gun. The defendant said no. The department did not have an inventory policy. What are the issues with this case?

Answer 54

Weapons: At the time of the search, the defendant was in custody and had been moved away from the passenger compartment; searching the passenger compartment can no longer be justified for safety.

Evidence: The search was not likely to produce evidence of the crime for which he was arrested (warrant for a+b)

No motor vehicle exception, because he didn’t have probable cause to believe there was an illegal firearm at the time of search, because he asked defendant if he had license to carry AFTER he searched.

Not a valid inventory because the department did not have an inventory policy

Question 55

Officer saw a vehicle disobey stop sign. He activated lights and sirens, and the vehicle traveled less then a block and stopped in parking lot of apartment complex. Two passengers left the vehicle and walked into the building despite the officer ordering them to return. Driver remained and was arrested for unlicensed operation(and assumingly was placed in a cruiser) . The officer and another searched the interior of the vehicle incident to arrest and found a firearm, marijuana, and cocaine. Issues with this search-

Answer 55

Weapons: Defendant was in custody and removed from vehicle; passengers had left (clear they did not intend to return); searching the passenger compartment can no longer be justified for safety

Evidence: Arrested for unlicensed operation- crime not realistically linked to any physical evidence.

No motor vehicle exception- officer never had any basis, certainly not probable cause, to believe there were weapons or drugs in the car

*Inventory would have worked! But officers had already searched for evidence so the court never considered this reason