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Mar 11, 2019


Pulling over a vehicle for a moving violation or suspicious activity can be complicated, especially if an officer determines a search needs to be initiated. The same is true when an officer stops a person on the street. There are many things an officer needs to remember while conducting a warrantless search, in order to protect their safety as well as making sure the search is legal. One long recognized exception to the Fourth Amendment of the United States Constitution is the “search incident to arrest,” which recognizes the need to disarm a suspect when taking them into custody and to preserve evidence for trial.

First – the basics.  There has to be a lawful arrest.   A lawful arrest occurs when an arrest warrant has been issued for the person arrested or the officer has probable cause that the person has engaged in criminal activity.  The search incident to arrest exception only applies when there is a lawful arrest.  Likewise,   the plain view exception which authorizes seizure, without a warrant, of illegal contraband that is immediately recognizable and in plain view of the officer only applies if the traffic stop was legal.  If the stop or arrest is unlawful, any evidence and statements that were obtained will be suppressed.

When a search incident to arrest is performed, law enforcement officers are allowed to search the individual and any items which are within the immediate control of the person arrested at the beginning of the encounter with law enforcement, such as the person’s backpack, bag or purse.  The officer’s search of those items is not limited to a search for weapons or for evidence solely relating to the specific offense for which the person was arrested.  In other words, anything inside the bag is subject to the search. The search must be substantially contemporaneous with the arrest.

After the individual exits their car and is placed in handcuffs, the officer cannot search the car unless the arrestee is unsecured and within reaching distance of the vehicle or it is reasonable for the officer to believe that the motor vehicle contains evidence of the offense upon which the arrest was based.  Accordingly, if the arrestee is secured outside of their vehicle and there are containers or boxes inside the vehicle, the officer could only search those boxes if the officer had reason to believe that the items contain evidence of the underlying offense.

If the vehicle is going to be impounded and towed after the arrest, the officers may conduct a thorough search of the vehicle, making a detailed inventory of everything in the vehicle.   A search of a vehicle conducted while completing a tow inventory, justifies the search of boxes and containers inside the car.  An inventory search is broader than a search incident to arrest and allows officers to conduct a more expansive search than could be done during a search incident to arrest. However, in order to utilize this more expansive search, the inventory must be done prior to the vehicle being towed and in accordance with the department’s standard procedure.

Furthermore, if an officer conducts a warrantless search based on consent rather than an exception to the search warrant requirement, the officer should clearly state the circumstances surrounding the consent to search the individual, their possessions, or their vehicle, in the officer’s report.  Establishing there was consent to search permits the officer to search when and where he otherwise would not be permitted without a warrant or an exception thereto.

In light of the foregoing, it is very important to articulate the basis for the search in your report as these issues often become fodder for suppression issues.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh

Summit County Prosecuting Attorney

Ohio Patrolmen's Benevolent Association
10147 Royalton Rd Suite J
North Royalton, OH 44133

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