Searching locked containers incident to arrest.

Do the courts give locked containers greater constitutional protection than unlocked containers when determining the scope of searches incident to arrest? This article addresses that question by discussing in general the law regarding searches incident to arrest and then, specifically, the issue of searching locked containers incident to arrest.

The fourth amendment allows police officers to search a person incident to a lawful arrest without first requiring them to obtain a search warrant. Not only are the police not required to obtain a search warrant, but they also are not required to establish probable cause that weapons or evidence will be found.(1)

An officer's authority to search incident to arrest flows automatically from the lawful arrest and includes the authority to perform a search of the arrestee and the area within the arrestee's reach.(2) "While the legal arrest of a person should not destroy the privacy of his premises, it does - for at least a reasonable time and to a reasonable extent - take his own privacy out of protection from police interest in weapons, means of escape, and evidence."(3)

Spatial Limits

The Supreme Court has limited the spatial scope of a search incident to arrest to the area within the arrestee's immediate control.(4) The search must be confined to that area within which the arrestee could gain possession of a weapon or destroy evidence. Some courts have described this area as the "lunging"(5) or "grabbing"(6) distance.

Yet, the arrestee who is handcuffed at the time of the search is unlikely to actually be able to reach into the area being searched. Nevertheless, the area of the search is not limited simply because police restraints restrict the arrestee's movement.

In fact, most courts do not view the accessibility of the area to the arrestee at the time it is searched as being the benchmark in assessing the validity of a search incident to arrest.(7) For example, in United States v. Fleming,(8) the U.S. Court of Appeals for the Seventh Circuit approved the search of a paper bag after the defendant had been handcuffed and taken outside to the street. An officer maintained custody of the bag, which was inaccessible to the arrestee from the moment of his arrest until it was searched 5 minutes later.

The U.S. Supreme Court has made it clear that "[a] police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgement which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search."(9) To require the area searched to actually be accessible to the arrestee at the time of the search would put the police on the horns of a dilemma in having to choose between securing the suspect, and thereby limiting the area to be searched, or leaving him unfettered, which would pose a greater danger to the officer. Most courts recognize this dilemma and do not require police to choose between evidence and their safety. One court noted, "It does not make sense to prescribe a constitutional test that is entirely at odds with safe and sensible police procedures."(10)

Furthermore, police cannot always be sure that simply securing an arrestee will actually prevent him from assaulting them, escaping, or destroying evidence. The courts do "not require the police to presume that an arrestee is wholly rational. Persons under stress may attempt actions which are unlikely to succeed."(11)

For example, in Plakas v. Drinski,(12) the arrestee, Plakas, opened the rear door of the police cruiser as it was traveling down the road. When the officer heard the door open, he slammed on the brakes, which caused Plakas to slam forward into the dividing screen between the seats.

Ultimately, Plakas escaped from custody, even though he was handcuffed behind his back. He ran to a nearby house, and after working his legs through the circle of his hands, grabbed a fireplace poker, which he then used to assault and injure a sheriff's deputy before running from the house.

The ordeal resulted in a standoff between officers and Plakas in a nearby clearing. Plakas made the prophetic statement, "Either you're going to die here, or I'm going to die here," before he charged at one of the officers with the poker and was fatally shot.

The Plakas case illustrates that a determined and aggressive arrestee is capable of doing almost anything to escape or assault an officer. Good police practice dictates, and the courts allow, a thorough search of the area within the arrestee's immediate control when arrested, even though at the time of the search the arrestee is seemingly unable to reach into that area.

It should be noted, however, that a minority of courts are more restrictive and view the area's inaccessibility to the defendant at the time of the search as precluding a search of that area incident to arrest. For example, in United States v. Gorski,(13) Federal agents unzipped and searched a bag carried by one of two arrestees and found 1 kilogram of cocaine. The U.S. Court of Appeals for the Second Circuit ruled that because the bag had been taken from one of the arrestees and placed on the ground, and both arrestees were handcuffed and surrounded by agents with guns drawn, the arrestees did not have access to the bag. The court, therefore, invalidated the search.

In another case, United States v. Vasey,(14) the U.S. Court of Appeals for the Ninth Circuit found the search of a vehicle unlawful, where the arrestee was handcuffed and placed in the rear of a police vehicle prior to the search. The court believed that the arrestee could not have gained access to the vehicle, and therefore, it was outside his area of immediate control. The court in Vasey acknowledged that the police are not required to assume that the arrestee is always rational, but also stated that they are not allowed to assume that the arrestee is superhuman.

Temporal Limits

In addition to limiting the search incident to arrest to the area within the arrestee's immediate control, the U.S. Supreme Court has put temporal limits within which a search must be conducted in order for it to qualify as a valid search. The search of the area within the arrestee's immediate control and the items within that area must be contemporaneous to the arrest.(15) In United States v. Chadwick,(16) the U.S. Supreme Court held that a double-locked footlocker searched at the stationhouse 90 minutes after the suspect's arrest was too remote in time to qualify as a valid search incident to the arrest. In another case, United States v. $639,558.00 in U.S. Currency,(17) the U.S. Court of Appeals for the District of Columbia determined that the 30 minutes between the arrest and the search of luggage was too long to be contemporaneous.

Usually, the search follows the arrest, although this is not a requirement. The search could precede the arrest and still be a lawful search incident to arrest. As long as the arrest follows quickly on the heels of the challenged search, it will be viewed as a valid search.(18) However, the search preceding the arrest cannot form the basis for the arrest.(19)

The time constraints for a search are less restrictive when the items to be searched are immediately associated with the arrestee. For example, in United States v. Edwards,(20) the U.S. Supreme Court held that a delay in the seizure and search of clothing worn by the arrestee until the morning after his arrest was valid as a search incident to the arrest. The police had to wait until the next morning because they were unable to obtain substitute jail clothing for the arrestee due to the late hour. The Court reasoned that the police did no more the next morning than they were entitled to do incident to the usual custodial arrest and incarceration.

The extended period allowed for a search incident to arrest of items immediately associated with the arrestee is not limited to the search of clothing. Many courts include wallets among those items subject to search incident to arrest for an extended reasonable period after arrest.(21)

However, there is a split among the courts as to whether a purse is an item immediately associated with the arrestee. Those courts that do not view a purse as immediately associated with the arrestee require the search of the purse to be contemporaneous with the arrest.(22)

Search of Vehicles Incident to Arrest

The search of automobiles must be contemporaneous with the arrest of an occupant of the vehicle. However, it is not clear exactly how close in time the search must be to the arrest in the automobile setting.

For example, the U.S. Court of Appeals for the Seventh Circuit in United States v. Fiola(23) held that a 90-minute delay between the arrest and subsequent search of the passenger compartment of the automobile was permissible. In contrast, the court in United States v. Vasey(24) held that a 30- to 45-minute delay between the arrest and search of the passenger compartment of an automobile was too long after the arrest to qualify as a contemporaneous search. In light of the uncertainty in this area, it is advisable to conduct a search of the passenger compartment of an automobile as soon as practicable after the occupant's arrest to avoid having a court view the search as too remote in time to be considered contemporaneous.(25)

There is no uncertainty with regard to the permissible area to be searched incident to the arrest of a vehicle's occupant. The spatial parameters within the arrestee's control in an automobile has been clearly defined by a bright-line rule by the U.S. Supreme Court in New York v. Belton.(26)

The Belton Court held that a contemporaneous search of the entire passenger compartment of an automobile incident to the occupant's arrest was legal, even though the occupant was not in the vehicle at the time of the search. It further authorized the contemporaneous search of any container found within the automobile's passenger compartment.

The Court defined a container as "any object capable of holding another object. It includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like."(27) The Court, however, did not authorize the police to search an automobile's trunk incident to the arrest of an occupant.

Searches of Locked Containers Located in Vehicles

Most courts allow the search of locked glove compartments incident to arrest.(28) For example, in Wisconsin v. Fry,(29) the Wisconsin Supreme Court validated the contemporaneous search of a locked glove compartment incident to a lawful arrest. The court found no meaningful distinction between a locked container and a closed but unlocked container regarding the constitutional protection provided to them. The Fry court followed the general fourth amendment principles set forth by the U.S. Supreme Court in United States v. Ross:(30)

When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand. This rule applies equally to all containers, as indeed it must.... a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf [may] claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case.(31)

Similarly, in United States v. Valliant,(32) the U.S. Court of Appeals for the Eighth Circuit upheld the search of a locked briefcase found on the passenger seat of the arrestee's car as a valid search incident to arrest.

Searches of Locked Containers in the Nonautomotive Setting

It could be argued that a search incident to arrest in the automotive context is broader than in a nonautomotive context. In New York v. Belton, however, the Supreme Court merely applied the general principles of search incident to arrest in the automotive context.

The Court did not alter the fundamental principles regarding the scope of a search incident to arrest, but simply established a per se rule that the entire passenger compartment of an automobile is within the immediate control of the arrestee - immediate control as had been defined in prior Supreme Court decisions. Although Belton did not specifically address the issue of locked containers, the Court stated that any container is subject to a contemporaneous search if it is within the arrestee's reach at the time of arrest.(33)

The general principles applied in Belton have been applied in nonautomotive settings by other courts.(34) In United States v. Silva,(35) the U.S. Court of Appeals for the Fourth Circuit, relying on Belton, approved of the search of a locked, zippered bag incident to the arrest of two suspects in a hotel room. The suspects were sitting on the beds, handcuffed behind their backs, and surrounded by armed FBI agents at the time of the search. One of the agents obtained the key to the bag from the pocket of one of the arrestees.

Similarly, in United States v. Tavolacci,(36) the U.S. Circuit Court for the District of Columbia determined that it was not constitutionally significant that a suitcase searched incident to arrest happened to be locked. The court concluded that it was legally sufficient to limit the search to containers within the arrestee's reach at the moment of arrest. It was not necessary to go beyond that and further limit the search to only unlocked containers.

In contrast, the U.S. Court of Appeals for the Eighth Circuit in United States v. Schleis(37) ruled that the search of a locked briefcase at the stationhouse without a search warrant after the suspect's arrest was a violation of the fourth amendment. The Schleis court, relying on United States v. Chadwick, stated that "the critical factor is the extent to which the property is within the control of the law enforcement officers, rather than the amount of time or space between the arrest and the search."(38) The Schleis court held that where the property is reduced to the exclusive control of the police, it cannot be searched incident to arrest.

In the Belton case, which was decided after Schleis, the Supreme Court criticized the "exclusive control" test by stating:

It seems to have been the theory of the Court of Appeals that the search and seizure in the present case could not have been incident to the respondent's arrest, because [the trooper], by the very act of searching the respondent's jacket and seizing the contents of its pocket, had gained "exclusive control" of them....under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article on the arrestee's person an officer may be said to have reduced that article to his "exclusive control."(39)

Under Belton, the authorization to search containers incident to arrest hinges on the length of time and distance between the arrest and the search, not whether the police have obtained "exclusive control" of the container.(40) The issue is whether the container is within the "immediate control" of the arrestee at the time of arrest and not whether it is within the "exclusive control" of the officer at the time of the search.

The Schleis and Chadwick Courts considered the fact that the containers were locked as manifestations of the arrestee's expectation that the contents of the containers would remain free from public examination.(41) Nevertheless, in Belton, the Supreme Court held that "the justification for the search is not that the arrestee has no privacy in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have."(42)

Some courts view the inaccessibility of the area to the defendant at the time of the search as precluding a search of that area incident to arrest. Those courts may not allow the search of a locked container on the grounds that there is no likelihood that the arrestee will be able to destroy evidence or gain possession of a weapon.

However, Belton is particularly instructive on this issue. The Belton Court reversed the decision of the New York Court of Appeals, which invalidated the search of a coat found inside a vehicle. The court of appeals decided that because at the time of the search the arrestees were standing outside the vehicle, there was no longer any danger that the arrestees would gain access to the article. In reversing the New York Court of Appeals, the Supreme Court made clear that the arrestee's access to the area at the time of the search should not determine the validity of a contemporaneous search incident to arrest.

Conclusion

Most courts do not consider it significant whether, at the time of the search, the arrestee has access to the area searched. Likewise, some courts do not consider it significant that a container that is searched incident to arrest happens to be locked. Nevertheless, there is a split of authority in the courts on whether locked containers may be searched incident to arrest and that issue has not been specifically addressed by the U.S. Supreme Court. Accordingly, because the legality of such searches has not yet been settled, law enforcement agencies should consult legal counsel to determine the law on their local jurisdiction.

Endnotes

1 United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed. 2d 427,440 (1973).

2 Chimel v. California, 395 U.S. 752,763, 89 S. Ct. 2034, 23 L. Ed. 2d 695 (1969).

3 United States v. Edwards, 415 U.S. 800,808, 94 S. Ct. 1234, 39 L. Ed. 2d 771,778 (1974).

4 395 U.S. at 763.

5 See Oregon v. Bracco, 517 P.2d 335 (1973), and Missouri v. Brassel, 538 S.W.2d 325 (1976).

6 See United States v. Tavolacci, 895 F.2d 1423,1429 (D.C. Cir. 1990).

7 United States v. Polumbo, 735 F.2d 1095, 1097 (8th Cir. 1984), cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed. 2d 268 (1984) (search behind dresser drawer was a valid search incident to arrest, even though the arrestee claimed he was handcuffed with several officers watching him). See also United States v. McCrady, 774 F.2d 868 (8th Cir. 1985), where the court decided that the search of the locked glove compartment of the arrestee's car was a valid search incident to arrest, even though the arrestee had been transported from the scene prior to the search. The officer, who decided to search the vehicle before surrendering it to another passenger, had possession of the keys to the vehicle and used them to open the glove compartment during the search. Accord United States v. Hatfield, 815 F.2d 1068, 1071 (6th Cir. 1987) (arrestee ordered to stand against a wall and was guarded by officer while another officer searched the vehicle), Davis v. Robbs, 794 F.2d 1129, 1130-31 (6th Cir. 1986) (arrestee handcuffed and placed in squad car prior to seizure of rifle in house), cert. denied, 479 U.S. 992, 107 S. Ct. 592, 93 L. Ed. 2d 593 (1986), and United States v. Cotton, 751 F.2d 1146, 1147-48 (10th Cir. 1985) (arrestees handcuffed and apparently guarded by officer while another officer searched the vehicle).

8 677 F.2d 602 (7th Cir. 1982).

9 United States v. Robinson, supra at note 1.

10 United States v. Lucas, 898 F.2d 606, 610 (8th Cir. 1990), cert denied, 498 U.S. 838 (1990).

11 United States v. McConney, 728 F.2d 1195,1207 (9th Cir. 1984) (en banc) (search of sofa incident to arrest held valid, even though the arrestee was on the floor and surrounded by several officers with guns drawn), cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984).

12 19 F.3d 1143 (7th Cir. 1994), cert. denied, 115 S. Ct. 81 (1994).

13 852 F.2d 692 (2d Cir. 1988).

14 834 F.2d 782 (9th Cir. 1987).

15 E.g., Preston v. United States, 376 U.S 364,367, 84 S. Ct. 881, 11 L. Ed. 2d 777,780 (1964).

16 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1976).

17 955 F.2d 712,717 (D.C. Cir. 1992).

18 Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556,2564, 65 L. Ed. 2d 633 (1980).

19 Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288 (1990).

20 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974).

21 See United States v. Passaro, 624 F.2d 938,943 (9th Cir. 1980) (search of a wallet and photocopying the contents after the arrestee arrived at the place of detention was valid as a search incident to arrest), cert. denied, 449 U.S. 1113 (1980). See also United States v. Castro, 596 F. 2d 674,677 (5th Cir. 1979) (search of a wallet after the arrestee's arrival at the jail was valid as a search incident to arrest), cert. denied, 444 U.S. 963 (1979), and United States v. Baldwin, 644 F.2d 381,384 (5th Cir. 1981) (per curiam) (search of wallet "a few hours" after arrest was held to be valid).

22 Compare United States v. Monclavo-Cruz, 662 F.2d 1285 (9th Cir. 1981)(where the court invalidated the search of a purse carried by the arrestee that was not searched until 1 hour after her arrest) with United States v. Burnette, 698 F.2d 1038 (9th Cir. 1983)(where the court allowed a more thorough search of a purse long after the arrest because the purse was subjected to a cursory search at the time of arrest), cert. denied, 461 U.S. 936 (1983). In Illinois v. Mannozzi, 632 N.E.2d 627 (1994), the court considered a purse as being immediately associated with the arrestee, and therefore, found valid the search of the purse at the police station 10 minutes after arrest.

23 929 F.2d 285,288 (7th Cir. 1991).

24 834 F.2d 782, 785-788 (9th Cir. 1987).

25 Even if the search in a particular case is invalidated, it may still pass constitutional muster under the inevitable discovery doctrine, which provides that evidence will not be suppressed if police inevitably would have discovered the item during a subsequent lawful search, such as an inventory of a container or automobile. See Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 377 (1984). In most instances, containers and vehicles will be subject to an inventory search once they are taken into police custody. A valid inventory search must be conducted according to established standardized procedures. See generally, South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976), and Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L. Ed. 2d 65 (1983).

26 453 U.S. 454, 101 S. Ct. 2860, 69 L.Ed. 2d 768 (1981).

27 453 U.S. at 460 n. 4.

28 See United States v. Woody, 55 F.3d 1257,1269 (7th Cir. 1995), United States v. McCrady, 774 F.2d 868 (8th Cir. 1985), Arizona v. Hanna, 839 P.2d 450, 452 (1992), cert. denied, 113 S. Ct. 1615 (1992), North Carolina v. Brooks, 446 S.E.2d 579 (1994), North Carolina v. Massenburg, 310 S.E.2d 619, 622 (1984), Florida v. Gonzalez, 507 So.2d 772 (1987), and Staten v. United States, 562 A.2d 90 (1989).

29 388 N.W. 2d 565 (1986), cert. denied, 493 U.S. 837 (1989).

30 456 U.S. 798, 102 S.Ct. 2157, 72 L. Ed. 2d 572 (1982). Ross dealt with the motor vehicle exception to the warrant requirement and its application to containers located in motor vehicles. See also California v. Acevedo, 111 S. Ct. 1982 (1991), which further clarifies Ross and the scope of the motor vehicle exception.

31 388 N.W. 2d 565, 575, quoting Ross, 456 U.S. at 821-822, 102 S. Ct. at 2171 (footnotes omitted).

32 873 F.2d 205,206 (8th Cir. 1989).

33 Belton, 453 U.S. at 460, 101 S. Ct. at 2864 including n. 4. The Court reasoned that if the passenger compartment is within reach of the arrestee so also will containers in it be within his reach.

34 See United States v. Fleming, 677 F.2d 602,605 (7th Cir. 1982), United States v. Polumbo, 735 F.2d 1095, 1097 (8th Cir. 1984), cert. denied, 469 U.S. 934, 105 S. Ct. 332, 83 L. Ed. 2d 268 (1984), and United States v. Lucas, 898 F. 2d 606 (8th Cir. 1990), cert. denied, 498 U.S. 838 (1990).

35 745 F.2d 840, 847 (4th Cir. 1984), cert. denied, 470 U.S. 1031, 105 S. Ct. 1404, 84 L. Ed. 2d 791 (1985).

36 895 F.2d 1423,1428 (D.C. Cir. 1990).

37 582 F.2d 1166 (8th Cir. 1978).

38 582 F.2d at 1172.

39 453 U.S. at 462, 101 S. Ct. at 2865 n. 5.

40 See United States v. Morales, 923 F.2d 621,625 (8th Cir. 1991), where the court followed the Belton decision in upholding a contemporaneous search of luggage at an airport as the arrestee stood 3 feet away, spread-eagle against a wall, even though the luggage was in fact under the "exclusive control" of the officer at the time of the search. Belton, Morales, and other courts have explained Chadwick as a case involving a search that was too remote from the arrest to qualify as a contemporaneous search incident to arrest. Belton, 453 U.S. at 462. See also United States v. Litman, 739 F.2d 137 (4th Cir. 1984) (en banc), where the court upheld the search of bags carried by the suspect at the time of arrest even though the suspect had dropped the bags and the DEA agents had obtained "exclusive control" of the bags at the time of the search.

41 Chadwick, 433 U.S. at 11; Schleis, 582 F. 2d at 1170.

42 Belton, 453 U.S. at 461,101 S. Ct. at 2864.

Law enforcement officers of other than Federal jurisdiction who are interested in this article should consult their legal advisor. Some police procedures ruled permissible under Federal constitutional law are of questionable legality under State law or are not permitted at all.

Special Agent Hendrie, Drug Enforcement Administration, is a legal instructor at the FBI Academy.