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JD
JD, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1335
Experience:  Over 11 years of practice in litigation including 10 years as a state prosecutor
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Can I conduct a search incident to arrest on an infraction

Customer Question

Can I conduct a search incident to arrest on an infraction? Ca attorney general opinion 96 - 1201 says that as an officer I can arrest for an infraction that occurs in my presence. Can someone provife me with the case law decision that allows me to search someone arrested of an infraction. I believe it was a california supreme court decision.
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Cedric replied 4 years ago.
Yes, you can. It's not California case law, its United States Supreme Court law, which applies to California, the most recent decision is Arizona v. Gant. It imposes restrictions on a search incident to an arrest to only within the immediate area of a suspect who was being arrested.
Customer: replied 4 years ago.
I remember recently there was a supreme court case regarding a sheriffs deputy that arrested someone on a bike for an infraction. The officer conducted a search incident to arrest and found drugs. The supreme court ruled on an appeal that the search was legal. What I am trying to figure out is if i stop someone for an infraction, and arrest them. Can i still legally search them even though it was an infraction. A full search, not just a search for weapons.
Expert:  Cedric replied 4 years ago.

No, it has to be a search that is conducted has to be limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence.

 

I believe you're referring to Virginia v. Moore. Here's a link to the Court's opinion in the case:

 

http://www.law.cornell.edu/supct/html/06-1082.ZO.html

Customer: replied 4 years ago.
Relist: Inaccurate answer.
The expert does not know what i am talking about. The case in question is a california case. where a sheriffs deputy stoped a man on a bike for an infraction. He arrested that man for the infraction and then conducted a full search of that man incident to the arrest. He found drugs and charged the man with the drugs. his lawyers appealed the search saying that officers can not arrest for infractions. and therefor the search was illegal. the courts ruled that the search was legal and the search stood. This was a recent decision sometime within the last 6 months i believe. i need to know what that case was
Expert:  JD replied 4 years ago.

The case you are referring to is People vs. Mckay, 27 Cal 4th. 601.. this was decided in 2002.

 

Go to this link...

 

http://www.lexisnexis.com/clients/CACourts/

 

1. Agree to the terms and conditions.

2. Check the Cal. Supreme Court Published Case box

3. Scroll down to Get Opinion by Cite

4. Select Cal. 4th in the drop down box

5. Enter 27 in first text box and 601 in final text box (27 Cal. 4th 601)

6. Select People versus McKay

 

As you can see, the California Supreme Court held that a search incident to an arrest for an infraction is not constitutionally prohibited even if it violates an established state arrest procedure.

 

Please reply if I can help further.

 

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JD, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1335
Experience: Over 11 years of practice in litigation including 10 years as a state prosecutor
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