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Search and Seizure for Police and Prosecutors

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II. Search of a Person Incident to Arrest

 

  1. Investigatory stops.
    1. An investigatory stop is a non-consensual encounter initiated by a police officer for the purpose of investigating possible criminal activity.
    2. A valid investigatory stop requires reasonable suspicion.
      1. Officer must have an articulable suspicion that criminal activity is afoot.
      2. Suspicion must be based on officer’s observation and experience.
      3. A hunch is not enough.
      4. An anonymous tip, alone, is not enough; officer must corroborate some information in the tip.
      5. Length and scope of the encounter must be related to the original suspicion, or purpose for the stop.
    3. Pretextual stops are prohibited under the New Mexico Constitution.
      1. A pretextual stop is a traffic stop supported by reasonable suspicion or probable cause that a traffic violation has occurred,
      2. But is actually made for an investigative reason that is unrelated to the traffic violation.
    4. The scope of an investigatory stop may be expanded beyond the initial reason for the stop if the officer observes articulable facts that raise a reasonable suspicion of additional criminal activity.
A search incident to arrest is an exception to the general search warrant requirement.25 This exception is based on the “possible danger that a person who is arrested might be hiding a weapon or that evidence of a crime might be destroyed or concealed.”26 Therefore, to conduct a valid search incident to arrest, an officer must have probable cause to arrest.27 The arrest must be lawful; a search incident to an invalid arrest is also invalid.28 In addition, the search must occur contemporaneously with the formal arrest.29 That the search occurs before or after formal arrest is made may not matter as long as the search is contemporaneous with the arrest.30

For example, if an officer conducting an investigatory stop of a suspect conducts a pat down and discovers sufficient information to establish probable cause to arrest the suspect, the officer may complete the pat down before arresting the suspect. In so doing, the officer may seize objects found on the suspect, such as a key holder in the suspect’s pocket, even though the objects are not obviously weapons. The search and seizure of such items may be justified as a search incident to arrest as long as the officer had probable cause to arrest the suspect before finding the objects and did in fact arrest the suspect based on that probable cause.31

The scope of a valid search incident to arrest is limited by the purpose for the exception: to remove weapons and evidence from the immediate control of the suspect. Therefore, a search of an arrested person is broader than a pat down conducted during an investigatory stop. In searching an arrested person, the officer may go beyond a mere pat down and reach into pockets, or order the suspect to empty his pockets, and may seize any objects found on the suspect.32

On the other hand, a search that is more invasive than a pat down, such as an underclothing search, “is not presumed to be reasonable simple because it occurs incident to an arrest.”33 Such a search “requires, at a minimum, particularized reasonable suspicion that the arrestee is concealing a weapon or evidence that is susceptible to destruction before arriving at the police station.”34 But even when an officer has reasonable suspicion to believe the arrestee is concealing a weapon or contraband, the officer’s actions in conducting the underclothing search must be reasonable. Courts assess the reasonableness of an underclothing search by considering (1) the scope of the search, (2) the manner in which it is conducted, (3) the justification for initiating the search, and (4) the place in which it is conducted.35 In so doing, courts should not consider whether the officer used the least intrusive means of conducting the search, as long as the other factors establish the reasonableness of the search.36

For example, in Williams, an officer stopped the defendant for a traffic violation and, as he approached the defendant’s vehicle, observed the defendant fumbling around with something inside the car. After running a background check on the defendant, the officer discovered that the defendant had an outstanding arrest warrant. When the officer ordered the defendant to get out of the car, he noticed that the zipper and belt on the defendant’s pants were undone. Suspecting that the defendant had hidden either a weapon or contraband inside his pants, the officer placed the defendant between police cars on the side of the road, in a manner that shielded the defendant from the road, then reached into the defendant’s pants and retrieved a plastic bag containing illegal drugs.37 Applying the four factors, our Supreme Court found the search reasonable because it was justified by reasonable suspicion and the “officers took adequate steps to minimize the invasion of [the d]efendant’s privacy.”38

ENDNOTES

25 Arredondo, 1997-NMCA-081, ¶ 27.

26 Paul T., 1999-NMSC-037, ¶ 11.

27 Probable cause to arrest is based on facts known to the officer that would cause a person of reasonable caution to believe that the suspect has committed or is committing a crime. See State v. Williams, 1994-NMSC-050, ¶ 16, 117 N.M. 551, 874 P.2d 12 (defining “probable cause” in context of search), overruled on other grounds by Tollardo, 2012- NMSC-008; State v. Madsen 2000-NMCA-050, ¶ 22 (discussing probable cause to arrest).

28 State v. Gurrola, 1995-NMCA-138, ¶ 10, 121 N.M. 34, 908 P.2d 264.

29 In re Doe, 1976-NMCA-011, ¶ 9, 89 N.M. 83, 547 P.2d 566. In addition, the search must be “confined to the area within the defendant’s immediate control.” Arredondo, 1997- NMCA-081, ¶ 27, citing State v. Martinez, 1997-NMCA-048, ¶ 6, 940 P.2d 1200. For a discussion of the application of this rule to a search of a vehicle incident to the occupant’s arrest, see infra., pp. 106-109.

30 See In re Doe, 1976-NMCA-011, ¶ 9.

31 Id.

32 State v. Martinez, 1997-NMCA-048, ¶ 6, 123 N.M. 405, 940 P.2d 1200 (quoting Chimel v. California, 395 U.S. 752, 763 (1969)).

33 Williams, 2011-NMSC-026, ¶ 10.

34 Id. ¶ 14.

35 Id. ¶ 11 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).

36 Id. ¶ 15.

37 Id. ¶¶ 3-5.

38 Id. ¶ 19.