I. Search of a Vehicle Incident to Arrest

Search of a vehicle incident to arrest.
1. Requirements of a valid search.
  1. The arrest of the driver or another occupant must be lawful.
  2. The arrest must be contemporaneous with the search.
2. The scope of a search of a vehicle incident to an arrest is limited by the purpose of ensuring officer safety.
  1. Search is limited to a protective sweep of the area of the vehicle immediately accessible to the driver or other occupants.
  2. Search is limited to a search for weapons.
    1. Areas of vehicle which could not hold a weapon may not be searched.
    2. Areas of the vehicle not accessible to driver or occupants may not be searched.
  3. Evidence found in plain view during a valid search incident to arrest may be seized.

The exception to the warrant requirement for a search incident to arrest applies to the search of a vehicle when the driver or other occupant of the vehicle is lawfully arrested.¹ This exception is based on the need to protect the safety of the arresting officer from the possibility that the person arrested is concealing a weapon.² The requirements for a valid search of a vehicle incident to arrest are the same as those for a valid search of a person incident to arrest: the arrest must be lawful and must occur contemporaneously with the search.³

The search incident to arrest is limited to a protective sweep of the area of the vehicle immediately accessible to the occupants of the vehicle.⁴ A more extensive search would exceed the purpose of the search, which is to prevent the arrestee from gaining access to a weapon.

Thus, a search of an area inside a small hole in the dashboard, discovered during a protective sweep of the front seat, would be unreasonable. In such a case, the person arrested would not have immediate access to the area inside the small hole after being arrested and could not be expected to retrieve a weapon from the area.⁵ Similarly, a driver who has exited, locked, and walked away from his vehicle could not be expected to easily retrieve a weapon from the vehicle during his encounter with police.⁶ On the other hand, an arrestee who has been handcuffed could gain, or attempt to gain, access to a weapon in the vehicle.⁷ In addition, the presence of passengers or others in the vicinity of the arrest adds to the concern for officer safety that justifies a vehicle search incident to arrest.⁸

ENDNOTES

1 State v. Arredondo, 1997-NMCA-081, ¶ 27, 123 N.M. 628, 944 P.2d 276, overruled on other grounds by State v. Steinzig, 1999-NMCA-107, ¶ 29, 127 N.M. 752, 987 P.2d 409.

2 State v. Boswell, 1989-NMCA-099, ¶ 5, 110 N.M. 190, 793 P.2d 1343, rev’d on other grounds, 1991-NMSC-004, 111 N.M. 240, 804 P.2d 1059 (1991).

3 Arredondo, 1997-NMCA-081, ¶ 27; State v. Weidner, 2007-NMCA-063, ¶¶ 18, 20, 141 N.M. 582, 158 P.3d 1025.

4 Arredondo, 1997-NMCA-081, ¶ 27.

5 Id. ¶ 29.

6 See State v. Pittman, 2006-NMCA-006, 139 N.M. 29, 127 P.3d 1116; see also State v. Rowell, 2008-NMSC-041, ¶ 25, 144 N.M. 371, 188 P.3d 95 (search of arrestee’s car after arrestee was secured in the officer’s patrol car held not a valid search incident to arrest).

7 See State v. Guiterrez, 2004-NMCA-081, ¶ 11, 136 N.M. 18, 94 P.3d 18.

8 See Id.