I. Search Incident to Arrest

Search incident to arrest.
1. Officers may conduct a protective sweep of the premises when making an arrest.
  1. Sweep must be conducted contemporaneously with a valid arrest.
  2. Officer must have a reasonable belief other people are present on the premises and could pose a danger.
  3. Sweep must be limited to the areas of the premises where a person might be found.
2. Officers may conduct a search of the area within the arrestee’s immediate control.
  1. The arrest must be lawful.
  2. The search must occur at the time of the arrest.
  3. The search must be limited to the area within the immediate control of the person arrested or another person on the premises at the time of the arrest.
3. Officers may seize evidence or contraband in plain view.
  1. The items seized must actually be in plain view.
  2. The incriminating nature of the items must be immediately apparent.
  3. Officers must obtain a warrant to seize items not in plain view or not obviously evidence or contraband.
    1. When in doubt, get a warrant
    2. Warrant not required if exigent circumstances exist
      1. danger of destruction of evidence
      2. danger to officer safety while waiting for a warrant

Protective Sweep

Officers making a lawful arrest may conduct a “protective sweep” of the premises where the arrest is made for the purpose of protecting the safety of the officers or others.¹ The protective sweep must be conducted contemporaneously with an arrest of a person on the premises. A protective sweep conducted before the officers decide to make an arrest is not a valid protective sweep.² In addition, the officers conducting a protective sweep must have “a reasonable belief based on specific and articulable facts” that people on the premises may pose a danger to the officer and others.³ Such a belief can be based on circumstances that would lead a reasonable person to believe others could be present and pose a danger, such as observations of people entering the premises, sounds of people moving about other areas of the premises, and the violent nature of the crime.⁴ On the other hand, the absence of information that persons other than the arrestee are present in the premises renders a protective sweep invalid.⁵ In conducting a protective sweep, the officers are limited to a quick search of areas on the premises where a person could reasonably be found.⁶ For example, an officer may look in a closet, but not in a shoe box found inside the closet.

Search of area within arrestee’s immediate control

In addition to a protective sweep, when making a lawful arrest, officers may conduct a search of the area within the arrestee’s immediate control.⁷ Such a search must be made at the time of the arrest, which must be a lawful arrest. Like a search of a person or a vehicle incident to an arrest, this search is limited to the area immediately accessible to the arrestee, or others on the premises, at the time of the arrest.⁸ Such a search might include looking through a desk, if the desk is located within an area to which the arrestee has access. However, such a search could only be a look through the desk for weapons, or destructible evidence and contraband. Such a search cannot be a detailed search of each item in the desk, such as papers, notebooks, or checkbooks.⁹

Moreover, a search incident to arrest cannot extend to other unoccupied rooms on the premises,¹⁰ although it might extend to a closet in the room where the arrestee is located, if the arrestee has immediate access to it.¹¹ A room other than the room where the arrestee is located may be searched if that room is occupied by a person who may pose a danger to the safety of the officers.

The practical issue regarding the scope of a search incident to an arrest is whether the arrestee or another person might be able to quickly reach the area in question to obtain access to a weapon or destructible evidence.¹² Thus, courts have upheld the search, incident to arrest, of a kitchen cabinet, under a bed pillow, and inside a shoulder bag.¹³ Moreover, the fact that the arrestee is handcuffed does not eliminate the danger to the officer. Therefore, officers may conduct a search incident to arrest even after the person has been handcuffed.¹⁴

Seizure of items found during protective sweep or search incident to arrest

If officers conducting a valid protective sweep discover evidence of a crime in “plain view,” the officers may immediately seize the evidence.¹⁵ However, before items in plain view may be seized, the incriminating nature of the items must be immediately apparent.¹⁶ In other words, the officer must be able to immediately identify the items as either contraband or evidence of a crime.¹⁷

Items which might be evidence in the case being investigated, but are not normally immediately identifiable as evidence or contraband should not be seized simply because they are in plain view. Instead of immediately seizing such items, police officers should seek a search warrant. The officers must include the items in the search warrant and may describe the protective sweep as the basis for probable cause to support the warrant.¹⁸ If exigent circumstances exist, such as the danger that the items will be destroyed, or danger to the safety of officers and others on the premises while waiting for a warrant, then the items may be seized immediately. However, without such exigent circumstances, seizure of the items will not be valid.¹⁹

ENDNOTES

1 State v. Jacobs, 2000-NMSC-026, ¶ 35, 129 N.M. 448, 10 P.3d 127 (citing Maryland v. Buie, 494 U.S. 325 (1990); State v. Eckard, 2012-NMCA-067, ¶ 14, 281 P.3d 1248 (protective sweep of residence may be justified when arrest occurs a short distance from the residence, if there is reason to believe others who pose a danger to the arresting officers are inside the residence).

2 See State v. Valdez, 1990-NMCA-134, ¶ 11, 111 N.M. 438, 806 P.2d 578 (sweep conducted before the police decided to arrest the suspect, and while the suspect was allowed to roam about the house gathering weapons, was invalid; sweep did not protect officer safety); State v. Trudelle, 2007-NMCA-066, ¶ 22, 142 N.M. 18, 162 P.3d 173 (protective sweep invalid where suspect was not under arrest at the time of the search).

3 Valdez, 1990-NMCA-134, ¶ 9; State v. Ramos, 2017-NMCA-041, ¶¶ 29, 32, 394 P.3d 968 (sweep conducted where domestic violence victim informed police that the suspect had left the home and driven away was invalid because it was not made pursuant to an arrest); Eckard, 2012-NMCA-067, ¶ 29 (during execution of an arrest warrant, officers did not have information that people other than the arrestees were present in the premises and, therefore, protective sweep was invalid).

4 See Jacobs, 2000-NMSC-026, ¶ 38 (people seen entering the house but not seen leaving); State v. Lara, 1990-NMCA-075, ¶ 22, 110 N.M. 507, 797 P.2d 296 (fact that victims could not tell for certain whether others were in the house, combined with the violent nature of the crime, justified belief that others could be in the house and pose danger to arresting officers).

5 State v. Sublet, 2011-NMCA-075, ¶ 31, 150 N.M. 378, 258 P.3d 1170 (during arrest following a undercover purchase of drugs in the home, officer’s observation that one suspect was attempting to conceal evidence in a closet was not sufficient to justify a protective sweep, as the observation did not demonstrate either a safety concern, or a concern that evidence would be destroyed); State v. Zamora, 2005-NMCA-039, 137 N.M. 301, 110 P.3d 517 (during protective sweep of the bathroom, officer looked inside a medicine cabinet that had been left ajar, finding crack cocaine; search of medicine cabinet found beyond the scope of the protective sweep incident to arrest).

6 Jacobs, 2000-NMSC-026, ¶ 35.

7 State v. Martinez, 1997-NMCA-048, ¶ 6, 123 N.M. 405, 940 P.2d 1200 (quoting Chimel v. California, 395 U.S. 752, 762-63 (1969)).

8 Martinez, 1997-NMCA-048, ¶ 6.

9 Id.

10 Id. ¶¶ 4, 12 (search of paper sack found in room other than room in which the defendant was arrested was not valid search incident to arrest).

11 Id. ¶ 6 (quoting Chimel, 395 U.S. at 762-63).

12 Id.

13 Martinez, ¶ 7 (citing United States v. Lucas, 898 F.2d 606, 609-10 (8^th Cir. 1990) (kitchen cabinet); United States v. Parra, 1 F.3d 1058, 1063 (10^th Cir.1993) (under pillow); United States v. Nelson, 102 F.3d 1344, 1347 (4^th Cir. 1996) (shoulder bag).

14 Id. ¶ 7; State v. Gutierrez, 2004-NMCA-081, ¶ 11, 136 N.M. 18, 94 P.3d 18.

15 Lara, 1990-NMCA-075, ¶ 23.

16 Id.

17 Id. (blood stains found in plain view during a protective sweep were obviously evidence of the crime of battery for which the defendant was arrested and, therefore, taking pictures of the blood stains was proper).

18 However, it should be noted that if the officers are wrong about the necessity for a protective sweep, the search warrant will be invalidated, and absent objective evidence other than the officer’s testimony that he intended to obtain a warrant, the evidence will not be admissible under either the inevitable discovery exception or the independent source doctrine. See State v. Wagoner, 1998-NMCA-124, ¶ 19, 126 N.M. 9.

19 State v. Wagoner, 1998-NMCA-124, ¶ 19, 126 N.M. 9, 966 P.2d 176 (entry and search of trailer home held invalid because exigent circumstance of possible destruction of evidence did not exist; no reason to believe destruction could have occurred while one officer sought a warrant and other officer removed occupants and secured the trailer until warrant was obtained).