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Greater Lowell Bar Association

Incident to Arrest

Search Incident to Arrest

Upon the lawful arrest of a suspect, police officers are permitted to search his body, his clothes, and the area within his immediate control (including bags, packages, bureau drawers, desks, or any other thing that could hide an object) without a warrant. A lawful search incident to arrest occurs when:

  1. The defendant’s arrest was lawful (he was arrested in a way and for a reason that did not violate the constitution);
  2. The police searched only the defendant’s body, clothes, possessions on his body or within his grasp, and an area within his immediate control;
  3. The police were searching either for weapons or evidence of the crime for which the defendant was being arrested; and
  4. The search happened generally at the time of the arrest and in the location of the arrest.

Searches incident to arrest are permitted because once the defendant has been arrested, he has a reduced expectation of privacy and, as a matter of public policy, the police have an interest in disarming arrestees and protecting evidence. What constitutes the “immediate area” of the defendant that the police may search incident to arrest? There is not a bright line rule and appellate courts tend to give police officers the benefit of the doubt if it’s a close call. Generally if the defendant is arrested in a building, the police can search the room in which he is arrested. The Massachusetts Supreme Judicial Court has also said a search incident to arrest may be valid even if the defendant is already in handcuffs at the time of the search (which seems to defeat the principle that allows for this type of search).

What happens when a defendant is arrested in a car? Federal law allows the cops to search the entire passenger compartment of the car, including any containers, incident to arrest. Massachusetts law, however, provides greater restrictions on the police. In Massachusetts, the police may search for only: (1) weapons the defendant might use to resist arrest or escape; or (2) evidence of the crime for which the defendant was arrested. Therefore, if the sole occupant of a car is arrested, handcuffed, and placed in a cruiser, the police cannot search for weapons (since the defendant has already been secured), but they can search for evidence of the crime for which the defendant is now in custody. Finally, the defendant needed to have been inside the passenger compartment (and not, for example, simply standing next to the car) in order for a search of the car to be valid as incident to arrest.

A search incident to arrest needs to occur either immediately following the defendant’s arrest or immediately before the arrest. Therefore, if the police intend to arrest an individual, officers may search the immediate area before slapping handcuffs on him (as long as he is actually arrested immediately thereafter). Appellate courts have granted police officers some leeway when it comes to the time that elapses between an arrest and the search. For example, if the police were justified in searching the defendant incident to arrest at the scene of the arrest, officers can still search him (incident to arrest) when he arrives at the police station. The same is not true of a car, however – a search of a car incident to a defendant’s arrest must happen immediately and it must occur on the scene.

When police officers conduct warrantless searches, defendants should almost always challenge those searches in court and force the government to justify their constitutionality. It is important for anyone charged with a crime to consult with an experienced criminal defense attorney before going to court.

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