Fourth Amendment Exceptions – Search Incident to Arrest

Exception #2 Search Incident to Arrest

In one of the last posts I wrote about exceptions to police needing a Warrant under the Fourth Amendment. Whether it’s a search warrant or an arrest warrant, once you’re arrested, a police officer can search you, your clothes, and the area immediately around you. At this point, the officer has determined probable cause, another officer has determined probable cause, or a Judge has determined probable cause when the warrant was issued. If you remember, probable cause is the level of evidence needed for a police officer to make an arrest. All states recognize this exception. Texas is no different.

What is search incident to arrest?

Search incident to arrest is a legal concept in criminal law that has been made by Judges over time. It isn’t written into the Constitution but police may rely on it after someone is arrested. It means that once an officer has arrested you, that they may search your clothes, and the area immediately around you. This area immediately around you is also known as the “wingspan rule.The purpose of the search after arrest has a few reasons:

  1. The officer will look for any evidence of the crime that has been committed;
  2. The officer will look for any weapons that may be hidden in your clothes or near your body; and
  3. To do an inventory and make a list of the items that you have on you or around you. This prevents someone from later saying that the police stole jewelry or valuable items.

Why don’t police need a warrant for this type of search?

The reasoning behind the search being legal by police is that you’ve already been placed under arrest. Because you’ve already been arrested, you are presumed to have a lower expectation of privacy in your pockets, clothes, and immediate area. Due to this lowered expectation of privacy, police don’t have to wait for a warrant to search your pockets once you’ve already been arrested and in handcuffs. It would seem unnecessary from a Judge’s view to have to give police the additional green light to search once a crime has been stopped. Lastly, the area that police are allowed to search after the arrest is considered to be relatively small. This also would be considered as least intrusive as possible.

How does it affect your case? How did police arrest you?

Like everything else in the law… it depends. From a legal standpoint, there are different types of arrests. There are custodial arrests, non-custodial arrests, detainments, and “mere encounters.” Depending on the facts of your case and how the police “arrested” you for legal purposes, you may have a stronger argument for illegal arrest or illegal search during plea bargaining. The “type” of arrest in your case will come out when I request criminal discovery in your case. These things can add up in the outcome of your case. It can mean the difference between jail time, probation or deferred adjudication, or a fine and court costs.



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