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As a general rule with all things search and seizure, get a warrant, as required by the 4th Amendment of the US Constitution. However, also like all things search and seizure, there are exceptions to the warrant requirement. Several legal theories justify the warrantless search of a container, including incident to arrest, with probable cause, and at the time of booking. Let’s look at these exceptions.

Searching containers in a vehicle became a bit more complicated after Arizona v. Gant (2009) when the US Supreme Court narrowed what could be searched incident to arrest in a vehicle stop. Remember, the law used to allow for the search of the passenger compartment and all its containers incident to arrest without probable cause or even reasonable suspicion. After Gant, a warrantless, suspicionless search of a vehicle, including the containers therein, incident to arrest is lawful only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. However, the exception to this is when it is reasonable to believe evidence relevant to the crime of arrest might be found in the car. If such evidence can be found in a container, then a warrantless search of the container is okay.  Arresting a person for driving while under the influence of a controlled substance supplies the necessary reasonable suspicion for believing evidence relevant to the crime of arrest might be in the vehicle and containers therein. The presence of drug paraphernalia or drugs corroborates that the driver was in fact under the influence of a controlled substance.

If an officer has probable cause to believe there is contraband or other seizable items in a car, the officer may make a warrantless search anywhere a warrant would authorize, including closed containers inside the car. However, the scope is defined by the object of the search and the places in which there is probable cause to believe that it may be found. If an officer seeking a search warrant would have been able to articulate to a magistrate the probable cause for the warrant to search the container, then the officer can search containers in the vehicle without a warrant. This includes a closed container belonging to a passenger even if the passenger is not arrested.  For example, a suspect fled in his car and was arrested with cash and crack cocaine on his person. This was sufficient probable cause to perform a warrantless search of the car, including the passenger’s purse inside the car.

Lastly, a further exception to the warrant requirement is property in the possession of or under control of a suspect who is booked into custody. At the time of booking, police can inspect the suspect’s possessions to determine whether the property was stolen, used in the commission of a crime, constitutes or holds contraband, or to inventory for return to the suspect when released from custody. Therefore, at the time of booking, officers can search closed container on the suspect’s person without a warrant.

What does this mean for you? Be able to articulate how your search for items relates to the crime for which the suspect was arrested or be able to articulate probable cause for the search of the container. Is a cell phone a container? To be discussed next time!


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