The Fourth Amendment rules regarding searches and seizures do not apply to searches that are related to an arrest. As long as the underlying arrest is valid, the police can search the person under arrest for weapons and evidence. (Read more here about what makes an arrest valid.) They do not need to get a search warrant or consent from the suspect to search. The police also can search the vicinity of the person under arrest for further evidence.
A search incident to arrest may even be appropriate if the suspect committed an offense that usually results in a citation rather than a formal arrest. If the police officer makes an arrest instead of issuing a citation, and they have probable cause to make an arrest, they can proceed to search the person and their surroundings.
Scope of the Search
The search must be limited to the body of the person under arrest and the area within their control. If you are arrested in some location outside your home or car, an officer cannot proceed to search your home or car under the justification that it is a search incident to arrest. However, they likely can search items that are not attached to your body if they are within reach.
Sometimes an officer will suggest to a person under arrest that they can return home to handle personal needs before going to jail. If the officer accompanies the person into their home, this may allow them to search the home as part of a search incident to arrest. Someone under arrest may want to consider declining this suggestion and asking friends or family members to handle these matters.
A protective sweep is a search incident to arrest that is meant to protect the safety of officers and other bystanders. An officer does not need to have a warrant to conduct this type of search, and any evidence in plain view can be admissible against the suspect. The protective sweep may involve searching inside a home or the area around the home. If someone is arrested in a certain area of a building, for example, the police may need to search certain other areas of the building to make sure that they are secure.
A protective sweep when the officer has no suspicion must be limited to areas immediately adjoining the place where the officer made the arrest. The officer does not need a reasonable suspicion or probable cause to conduct this type of sweep. A protective sweep can be more extensive when the officer does have a reason to believe that there is a threat in the area. This is determined by whether a reasonably prudent officer would suspect that there is an actual threat. In this protective sweep, the officer can explore the area more extensively. However, the sweep still must be limited to a cursory inspection and cannot resemble a thorough search. It must cover only areas where a person could be hiding, and it cannot last any longer than needed to remove a threat.
A protective sweep also can occur when a suspect consents to a search of their home, and the police are concerned that parts of the home not covered by the scope of the consent may contain a threat. If the police have a search warrant or are conducting a probation search, they also may be able to perform a protective sweep. The range of situations in which a protective sweep is appropriate depends on the state.
Cell Phone Searches After an Arrest
The U.S. Supreme Court has ruled that the police usually need a warrant to search the cell phone of someone whom they arrest. The Court decided that a cell phone is not similar to a container in a person’s vicinity, which would be subject to a search incident to arrest without a warrant. There is a greater expectation of privacy in the digital contents of a cell phone than in the tangible contents of an ordinary container. Also, cell phones may provide access to information that is not stored in them, which distinguishes them from an ordinary container. The Supreme Court found that cell phones are more like homes than containers in terms of the privacy associated with their contents.
In some extreme circumstances, however, the police may be able to search a cell phone without a warrant. They can search it for weapons and take steps to prevent the loss of its data. The exigent circumstances exception to the warrant requirement may cover these situations, allowing police to access data on the phone when there is an emergency, such as a terrorist threat. If the police reasonably believe that they cannot prevent the loss of the phone’s data unless they act immediately, they probably can search the phone. (The requirement of a warrant is not overly demanding, though, since officers often can get a warrant within a matter of minutes because of technological advances.)
The police also generally will need a warrant to get cell phone tracking data, officially known as cell-site location information (CSLI). This can show where a suspect presumably was located at any time by tracking the location of their phone.