Search Incident to Citation (WITHOUT ARREST)

by Charles Gillingham

The California Supreme Court recently examined a situation where the probable cause for a search incident to arrest was based on a citation where the officers did not arrest based on the citation.  The Court held that a search incident to citation where a lawful arrest is made does not violate the Fourth Amendment and may support a lawful search incident to arrest. 

"In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards." (People v. Troyer (2011) 51 Cal.4th 599, 605; see Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223.)

The U.S. Supreme Court has held an exception to the warrant requirement is a search incident to a lawful custodial arrest. In United States v. Robinson (1973) 414 U.S. 218, 224 (Robinson), the high court noted the exception is well settled and "no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee."

In Rawlings v. Kentucky (1980) 448 U.S. 98 (Rawlings), officers entered a home to serve an arrest warrant. Although the subject of the warrant was absent, there were others in the residence - one of whom admitted to narcotics possession.  He was searched and then arrested. The court found that once there is probable cause to arrest, the search is valid even if the search comes before the arrest. 

In Atwater v. City of Lago Vista 532 U.S. 318, he U.S. Supreme Court also held that citation for even a seatbelt violation may provide probable cause to arrest and California cases have upheld searches based on similar vehicle code violations.

The U.S. Supreme Court has also held in Virginia v. Moore 553 U.S. 164, that an arrest is lawful even though that arrest may not be permitted by state statutes. 

 

With these cases in mind, and MAKING SURE officers consult their agency's policies and procedures and duty manual, the following decision from the California Supreme Court gives guidance as to how officers should proceed in a search incident to arrest situation. Short answer, make sure to investigate and proceed on your infraction in a contact that leads to an arrest.  Cover all of your legal bases.  Your search can be lawful even though you may have relied on another theory for your arrest. 

 

 

People v. Macabeo 2016 DJDAR 11973 

Officers were on routine patrol at 1:40 a.m., in a dark, residential neighborhood. When they saw defendant on a bicycle 20 feet ahead of them, there were few, if any, cars on the street. Defendant was not riding erratically, nor did he appear to be trying to evade them. Following with their headlights off for a distance of 50 to 75 feet, officers saw him approach an intersection and roll through a stop sign, an infraction under Vehicle Code section 22450. The officers activated their overhead lights and stopped him.

The officer spoke to the defendant and asked, amongst other questions, his probationary status. No mention was made of the traffic infraction. Defendant initially said that he was on probation for possession of a controlled substance. When asked when he would be discharged from probation, he replied he was not sure, then reported his case had already been dismissed and he had no probation officer. The officers did not check on his probationary status or whether he had a search clause.

The officer told defendant to walk toward the police car, put his hands up, and spread his feet. Defendant told the officers he had nothing illegal on his person. The officer then asked if defendant had "any problem with me taking stuff out of your pockets," and defendant said "go ahead." The officer removed a number of items, including defendant's phone. After further questioning, officers ordered defendant to sit on the sidewalk while they searched the items, including the cell phone. Defendant was ONLY arrested for child pornography found by officers on his phone.  It did not appear that the officers asked for valid consent to search the phone. 

Suppression Hearing

The defendant moved to suppress based upon a prolonged detention and an invalid search incident to arrest. 

Holding

(Readers of the legal update will remember that the U.S. Supreme Court in Riley v. California (2014)134 S.Ct. 2473, held that police may not search a cell phone incident to arrest but must obtain a search warrant.  This case occurred before that decision. What we are concerned with here is whether a search can take place pursuant to a citation to save the search because the cell phone search here was found to be illegal.  Based on Riley, of course, the officers would now need a search warrant to search a phone that is legally seized

In Macabeo, the California Supreme Court held that when a custodial arrest is made supported by probable cause, a search incident to that custodial arrest may be permitted.  The KEY is that an ACTUAL arrest must take place. 

The Court held that because Macabeo had not been arrested for the infraction, which was the only offense officers had probable cause to arrest for at the time of the search, the search was not valid as a search incident to a lawful arrest. The Court acknowledged that even though the defendant could have been arrested under Federal law, he was not taken into custody so the search incident to arrest was invalid. 

As summarized by the California Supreme Court:

These cases, taken together, stand for the following principles. When a custodial arrest is made, and that arrest is supported by independent probable cause, a search incident to that custodial arrest may be permitted, even though the formalities of the arrest follow the search (Rawlings.) There is no exception for a search incident to citation (Knowles.) If an actual arrest takes place, a search incident to that arrest is allowed if it is supported by federal Fourth Amendment jurisprudence, more restrictive state law notwithstanding (Moore.) Even the search-incident exception may be limited when surrounding circumstances show the arrestee had no potential to put an officer in jeopardy, to escape, or to destroy evidence (Chimel, Chadwick, Riley.)