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LawEnforcement4you, Policeperson
Category: Criminal Law
Satisfied Customers: 45
Experience:  Police Officer – 22 yrs., Chief of Police – 5 yrs., Accident Reconstruction Specialist
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What is the time frame of searches to incident to arrest ...

Resolved Question:

What is the time frame of searches to incident to arrest and why such searches can take place before,during and after an arrest? I would prefer a detal explanation.
Submitted: 8 years ago.
Category: Criminal Law
Expert:  LawEnforcement4you replied 8 years ago.

What is a search incident to an arrest?

This is a search, which is set in, common-law and has been well tried and tested in the courts. It is conducted when a valid arrest has been made, is going to be made, or while an arrest is made. The reason for the wide latitude is based upon the reasons this search is allowed. A search incident to am arrest is made for fruits and instrumentalities (physical evidence) of a crime and for weapons that the subject could use to aid in an escape.

The area that the arrest is made in defines the search area. If it is in a vehicle the search can extend to all areas of the vehicle that the suspect has immediate access and control over. If it is in a house the search area may be wider based upon any area of the house the suspect may be allowed to access. Additionally the suspect themselves are subject to a pat down frisk.

Search prior to arrest:

The factor that a person has not official been placed under arrest for the search to take place is not needed. The fact that the officer has probable cause to arrest is all that is needed to conduct the search. Therefore, the search is authorized not by the arrest but by the probable cause to arrest. With this standard in place then the search can take place before, during or after the arrest, as long as probable cause to arrest exists.

This is shown in People v. Gonzales (1989) 216 Cal.App.3d 1185, 1189; People v. Mims (1992) 9 Cal.App.4th 1244, 1251 ["(T)he fact that the search preceded the formal arrest is of no consequence."]; People v. Gibson (1963) 220 Cal.App.2d 15, 22 ["(I)t is immaterial whether the search precedes or follows the arrest."]; People v. Adams (1985) 175 Cal.App.3d 855, 861; People v. Williams (1967) 67 Cal.2d 226, 229; In re Jonathan M. (1981) 117 Cal.App.3d 530, 536. NOTE: In 1972, the California Supreme Court ruled that probable cause to arrest was not enough, that officers must actually inform the suspect he is under arrest before they may conduct a search incident to arrest. See People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757. This rule was subsequently nullified by California's Proposition 8. See People v. Trotman (1989) 214 Cal.App.3d 430; People v. Deltoro (1989) 214 Cal.App.3d 1417, 1422.

Contemporaneous search requirement (time frame)

The requirement is that the search incident to the arrest be "contemporaneous" with the arrest. Even thought contemporaneous means at the same time, with a search incident to arrest is interpreted as the officer conducting the search with due diligence. The search must be conducted as soon as practicable taking into consideration all of the circumstances that are taking place. Therefore, there is no set time frame. The search must be conducted within a reasonable time frame based upon the totality of the circumstances that exist. The staleness of the search may be reviewed and ruled upon by a judge if it is suspected that too much time passed between the arrest and the search.

This is reviewed in Preston v. United States (1964) 376 US 364, 367; United States v. Chadwick (1977) 433 US 1, 15; Stoner v. California (1964) 376 US 483, 486; Vale v. Louisiana (1970) 399 US 30, 33; Shipley v. California (1969) 395 US 818, 819-20.

Hope this is detailed enough,


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