Investigative Constitutional Law

1. Investigative Constitutional Law Charles L. Feer, JD, MPA Bakersfield College Department of Criminal Justice Investigative Constitutional Law

2. Search Incident to Arrest • Learning Outcomes • Rationale for allowing a search when someone is arrested (without a warrant). • Three requirements of the arrest in order to justify an incidental search. • The meaning of “incident to.” Where and when the search must be conducted. • Scope of search, including the person and effects, places within a vehicle and portions of a residence that may be searched. • Consequential searches, including booking searches and inventories, and the requirements for each. • Taking personal exemplars, including fingerprints, photographs, handwriting and voice samples, blood samples and DNA specimens. Investigative Constitutional Law

3. Search Incident to Arrest • Learning Outcomes (Continued) • The special rules relating to strip searches and body cavity searches. • Consent as an independent source for searches incident to arrest. Investigative Constitutional Law

4. Search Incident to Arrest • Rationale For Warrantless Search • “It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment” (US v. Robinson). • These decisions of the Supreme Court have identified three reasons for allowing a search incident to arrest: • 1) the discovery and preservation of evidence of the crime for which the person has been arrested; • 2) removal of weapons that could be used against the arresting officer; and • 3) finding and removing the means of escape. If the requirements for conducting a search incident to arrest are met, therefore, a warrantless search can be conducted, within the specific scope defined for the place where the arrest occurs. Investigative Constitutional Law

5. Search Incident to Arrest • Three Requirements • Three conditions must be satisfied to justify a search incident to arrest. If any one of these conditions is not met, a warrantless search cannot be justified under this exception and will be unlawful, unless some other exception applies. • 1) Lawful Arrest: a search incident to arrest presupposes a lawful arrest. the lawfulness of an arrest is objectively determined, without regard to the subsequent history of the case. • 2) Custodial Arrest: In situations where a law enforcement officer has the option of making a full custodial arrest or releasing the person with a warning or citation, there can be no search incident to arrest unless there is a custodial arrest. Investigative Constitutional Law

6. Search Incident to Arrest • Three Requirements (Continued) • 3) Contemporaneous Search: a search incident to arrest must be substantially contemporaneous with the arrest, meaning at or near the time and place of arrest. However, there is no constitutional requirement that the arrest occur before the search - only that there be probable cause to arrest before the search is made. Once an officer has PC to arrest, s/he may arrest and then search, or search and then arrest. Investigative Constitutional Law

7. Search Incident to Arrest • Scope of Search • When the justification for a search is that it is incident to arrest, the scope will always include the person of the arrestee and whatever s/he is wearing and carrying. Beyond this basic scope, a search may extend to other areas within the arrestee’s immediate control, which will vary, depending on where the arrest occurs. • Person and Effects: The scope of search incident to arrest includes a thorough search of the person and effects of the arrestee. • Vehicle: If the person arrested was the recent occupant of a vehicle, the scope of search includes the passenger compartment and all receptacles and containers in it, but not the trunk. The lawful custodial arrest of a passenger also permits search of the vehicle. Investigative Constitutional Law

8. Search Incident to Arrest • Scope of Search (Continued) • Residence Lawfully Entered: When making an arrest inside private premises, the scope of an incidental search does not extend to areas beyond the immediate control of the arrestee (arm’s reach). Combining the holdings of Chimeland Buie, the scope of permissible search incident to arrest within a residence or other private premises includes the area under the arrestee’s immediate control, as well as a peek into adjoining closets, rooms and “other spaces,” but not a search of any other places. • Incident to Outdoors Arrest: an outdoors arrest does not allow a non-consensual entry into or search of the arrestee’s home, incident to arrest. Investigative Constitutional Law

9. Search Incident to Arrest • Searches Consequent to Arrest • Although a search incident to arrest must occur contemporaneously, there are some searches that typically follow an arrest that may be made later, at another place. These include a booking search and an inventory of impounded vehicles. • Booking Search: Although a thorough search of an arrestee and whatever s/he is carrying may be accomplished contemporaneously with arrest, it may also be accomplished during a standard booking search. Investigative Constitutional Law

10. Search Incident to Arrest • Searches Consequent to Arrest (Continued) • Inventory of Impounded Vehicles: An inventory of a lawfully impounded vehicle pursuant to standard policy or practice is a reasonable search. • Scope of Inventory: The scope of an inventory search is defined by the policy under which it is conducted. • Standardized Policy: An inventory cannot be conducted unless the agency has a policy defining the scope of search. Investigative Constitutional Law

11. Search Incident to Arrest • Taking Personal Exemplars • Once a person has been lawfully arrested and is in custody, investigators are permitted to require the person to submit to certain procedures that do not involve compelling the person to make any statement admitting guilt, but may nevertheless provide evidence connecting the person to the crime under investigation. • Mug Shots: Assuming a person is lawfully arrested, it is not unreasonable to take the person’s photograph. • Fingerprints: Assuming a person is lawfully arrested, it is not unreasonable to take the person’s fingerprints. Investigative Constitutional Law

12. Search Incident to Arrest • Taking Personal Exemplars (Continued) • Handwriting: Assuming a person is lawfully arrested, it is not unreasonable to compel an exemplar of the person’s handwriting. • Voice: Like a man’s facial characteristics or handwriting, his voice is repeatedly produced for others to hear. assuming a person is lawfully arrested, it is not unreasonable to compel an exemplar of the person’s voice. • Evanescent Evidence: (vanishing; fading away) Some evidence is constantly undergoing change or dissipation because of biological break- down or other processes. A sample of such evidence must sometimes be taken immediately, to preserve its evidentiary value. Investigative Constitutional Law

13. Search Incident to Arrest • Taking Personal Exemplars (Continued) • DNA Sampling: The US Supreme Court has not ruled on a Fourth Amendment challenge to the extraction of a DNA sample from those lawfully arrested, but did uphold a Connecticut law on due process grounds where one requirement of registered sex offenders was that they provide a DNA sample. • Calif. Department of Corrections and Rehabilitation has a DNA Sample requirement for parole release. Investigative Constitutional Law

14. Search Incident to Arrest • Body Cavity and Invasive Intrusions • In most cases, searches and seizures are justified by balancing the nature of the intrusion on Fourth Amendment rights against the governmental interest served by the search or seizure. • Intrusions greater than blood draws have generally been precluded. • The court has not disapproved of the practice in jails and prisons of subjecting inmates to strip searches and visual body cavity searches when the circumstances of the arrest or custodial incident supports a suspicion that the person may have drugs or weapons concealed on or in his or her body. Investigative Constitutional Law

15. Search Incident to Arrest • Consent as an Independent Source • As with searches under warrants and many of the other exceptions, it is prudent practice for officers intent on conducting a search incident to arrest to also seek consent. • And when a backed-up search yields contraband or the fruits, instrumentalities or evidence of a crime, the arrest report should detail all grounds for the search, under a warrant or all applicable exceptions, to allow the prosecutor, defense attorney and judge to assess admissibility issues under all of the justifications that were present. Investigative Constitutional Law