Amendment 4 — Search Incident To Arrest Doctrine

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Fourth Amendment :

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The common-law rule permitting searches of the person of an arrestee as an incident to the arrest has occasioned little controversy in the Court.[1](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn1amd4 " Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30 (1925). ") The Court has even upheld a search incident to an illegal (albeit not unconstitutional) arrest.[2](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn2amd4 " Virginia v. Moore, 128 S. Ct. 1598 (2008) (holding that, where an arrest for a minor offense is prohibited by state law, the arrest will not violate the Fourth Amendment if it was based on probable cause). ") The dispute has centered around the scope of the search. Because it was the stated general rule that the scope of a warrantless search must be strictly tied to and justified by the circumstances that rendered its justification permissible, and because it was the rule that the justification of a search of the arrestee was to prevent destruction of evidence and to prevent access to a weapon,[3](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn3amd4 " Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California, 395 U.S. 752, 762, 763 (1969). The Court, in Birchfield v. North Dakota, explained that the precedent allowing for a warrantless search of an arrestee in order to prevent the destruction of evidence applies to both evidence that could be actively destroyed by a suspect and to evidence that can be destroyed due to a natural process, such as the natural dissipation of the alcohol content in a suspect’s blood. 136 S. Ct. 2160, 2182–83 (2016). ") it was argued to the Court that a search of the person of the defendant arrested for a traffic offense, which discovered heroin in a crumpled cigarette package, was impermissible, because there could have been no destructible evidence relating to the offense for which he was arrested and no weapon could have been concealed in the cigarette package. The Court rejected this argument, ruling that “no additional justification” is required for a custodial arrest of a suspect based on probable cause.[4](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn4amd4 " United States v. Robinson, 414 U.S. 218, 235 (1973). See also id. at 237–38 (Powell, J., concurring). The Court applied the same rule in Gustafson v. Florida, 414 U.S. 260 (1973), involving a search of a motorist’s person following his custodial arrest for an offense for which a citation would normally have issued. Unlike the situation in Robinson, police regulations did not require the Gustafson officer to take the suspect into custody, nor did a departmental policy guide the officer as to when to conduct a full search. The Court found these differences inconsequential, and left for another day the problem of pretextual arrests in order to obtain basis to search. Soon thereafter, the Court upheld conduct of a similar search at the place of detention, even after a time lapse between the arrest and search. United States v. Edwards, 415 U.S. 800 (1974). ")

The Court has disavowed a case-by-case evaluation of searches made post-arrest[5](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn5amd4 " In this vein, the search incident to arrest exception to the warrant requirement differs from other exceptions to the warrant requirement, such as the exigent circumstances exception. See Birchfield, 136 S. Ct. at 2174 (noting that while “other exceptions to the warrant requirement ‘apply categorically',” the exigent circumstances exception to the warrant requirement applies on a case-by-case basis (quoting Missouri v. McNeely, 569 U.S. 141, 150 n.3 (2013))). ") and instead has embraced categorical evaluations as to post-arrest searches. Thus, in Riley v. California,[6](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn6amd4 " 573 U.S. 373 (2014). ") the Court declined to extend the holding of United States v. Robinson to the search of the digital data contained in a cell phone found on an arrestee. Specifically, the Court distinguished a search of cell phones, which contain vast quantities of personal data, from the limited physical search at issue in Robinson.[7](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn7amd4 " “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” Id. at 393. ") Focusing primarily on the rationale that searching cell phones would prevent the destruction of evidence, the government argued that cell phone data could be destroyed remotely or become encrypted by the passage of time. The Court, however, both discounted the prevalence of these events and the efficacy of warrantless searches to defeat them. Rather, the Court noted that other means existed besides a search of a cell phone to secure the data contained therein, including turning the phone off or placing the phone in a bag that isolates it from radio waves.[8](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn8amd4 " Id. at 390. ") Because of the more substantial privacy interests at stake when digital data is involved in a search incident to an arrest and because of the availability of less intrusive alternatives to a warrantless search, the Court in Riley concluded that, as a “simple” categorical rule, before police can search a cell phone incident to an arrest, the police must “get a warrant.” [9](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn9amd4 " Id. at 403. ")

Two years after Riley, the Court again crafted a new brightline rule with respect to searches following an arrest in another “situation[ ] that could not have been envisioned when the Fourth Amendment was adopted.” [10](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn10amd4 " See Birchfield, 136 S. Ct. at 2176. ") In Birchfield v. North Dakota, the Court examined whether compulsory breath and blood tests administered in order to determine the blood alcohol concentration (BAC) of an automobile driver, following the arrest of that driver for suspected “drunk driving,” are unreasonable under the search incident to arrest exception to the Fourth Amendment ’s warrant requirement.[11](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn11amd4 " Id. at 2176. ") In examining laws criminalizing the refusal to submit to either a breath or blood test, similar to Riley, the Court relied on a general balancing approach used to assess whether a given category of searches is reasonable, weighing the individual privacy interests implicated by such tests against any legitimate state interests.[12](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn12amd4 " Id. ") With respect to breath tests, the Birchfield Court viewed the privacy intrusions posed by such tests as “almost negligible” in that a breath test is functionally equivalent to the process of using a straw to drink a beverage and yields a limited amount of useful information for law enforcement agents.[13](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn13amd4 " Id. at 2176–78. The Court disclaimed a criminal defendant’s possessory interest in the air in his lungs, as air in one’s lungs is not a part of one’s body and is regularly exhaled from the lungs as a natural process. Id. at 2177. ") In contrast, the Court concluded that a mandatory blood test raised more serious privacy interests,[14](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn14amd4 " “Blood tests are a different matter.” Id. at 2178. ") as blood tests pierce the skin, extract a part of the subject’s body, and provide far more information than a breathalyzer test.[15](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn15amd4 " Id. at 2177–78. ") Turning to the state’s interest in obtaining BAC readings for persons arrested for drunk driving, the Birchfield Court acknowledged the government’s “paramount interest” in preserving public safety on highways, including the state’s need to deter drunk driving from occurring in the first place through the imposition of criminal penalties for failing to cooperate with drunk driving investigations.[16](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn16amd4 " Id. at 2178–79. ") Weighing these competing interests, the Court ultimately concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving because the “impact of breath tests on privacy is slight,” whereas the “need for BAC testing is great.” [17](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn17amd4 " Id. at 2184. ") In so doing, the Court rejected the alternative of requiring the state to obtain a warrant prior to the administration of a BAC breath test, noting (1) the need for clear, categorical rules to provide police adequate guidance in the context of a search incident to an arrest and (2) the potential administrative burdens that would be incurred if warrants were required prior to every breathalyzer test.[18](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn18amd4 " Id. at 2179–81. The Birchfield Court also rejected “more costly” and previously tried alternatives to penalties for refusing a breath test, such as sobriety checkpoints, ignition interlocks, and the use of treatment programs. Id. at 2182–83. ") Nonetheless, the Court reached a “different conclusion” with respect to blood tests, finding that such tests are “significantly more intrusive” and their “reasonability must be judged in light of the availability of the less intrusive alternative of a breath test.” [19](https://www.law.cornell.edu/constitution-conan/amendment-4/search-incident-to-arrest-doctrine#fn19amd4 " Id. at 2184. In so doing, the Court rej