Category Archives: Search incident

TX13: Search incident can occur before formal arrest as long as both are justified

Search incident can occur before formal arrest as long as both are justified. Hill v. State, 2017 Tex. App. LEXIS 10749 (Tex. App. – Corpus Christi – Edinburg, Nov. 16, 2017) (memorandum).* Appellant’s claims that VA attorneys hacked her computer … Continue reading

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LA: Search incident can occur before formal arrest

The trial court denied the motion to suppress and the court of appeals reversed. When defendant’s name came back as having a warrant, the fact the search occurred before the formal arrest doesn’t matter. State v. Owens, 2017 La. LEXIS … Continue reading

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NM: Backpack on def when he was arrested was subject to inventory even though he was separated from it when searched

Defendant’s backpack was on him when arrested, and it was still subject to police inventory for all the policies of inventory. State v. Davis, 2017 N.M. LEXIS 86 (Nov. 9, 2017), revg, 2016-NMCA-073, 387 P.3d 274 (posted here):

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OH3: Search incident under Gant isn’t automatic in a DUI arrest; more indicators required

OVI (DUI) is not an offense where there is per se evidence to be found in the vehicle by search incident under Gant (or the automobile exception). Something more than just the offense is required to use the stop to … Continue reading

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MO: SI of bag with def was valid because, although handcuffed, he wasn’t yet in the patrol car

Search incident of a bag associated with defendant was valid here because defendant wasn’t handcuffed and inside a patrol car. Instead, he was handcuffed and outside the patrol car, and, of course, that’s a big difference. State v. Hughes, 2017 … Continue reading

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CA6: Search incident permitted for arrest on parole absconder warrant

Search incident to arrest is proper on an arrest on parole absconder warrant. Witzke v. Bradley, 2016 U.S. App. LEXIS 23965 (6th Cir. Dec. 30, 2016). The officer developed reasonable suspicion to continue the stop to bring in the drug … Continue reading

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D.Minn.: Search incident on a PV warrant was valid

Search incident to arrest on a DOC warrant was valid. Search incident of his backpack in the car wasn’t valid, but it was by inventory and thus inevitable discovery. United States v. Vang, 2017 U.S. Dist. LEXIS 161227 (D. Minn. … Continue reading

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TX: Search incident still justified by discovery of a different offense after arrest

The court of appeals erred in holding that a search incident to arrest could not be justified by discovery of a different offense after arrest. As long as there was probable cause to arrest for the newly-discovered offense, and the … Continue reading

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MA: Trial court suppression of confession on tape was clearly erroneous; with PC to arrest, def’s clothing could be seized and forensically tested

The trial court’s order suppressing defendant’s confession and the subsequent search of his clothing is reversed as clearly erroneous. Defendant’s arrest was with probable cause, and that allowed seizure and forensic testing of his clothing. Commonwealth v. Tremblay, 2017 Mass. … Continue reading

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ID: Frisk doesn’t allow opening containers that can’t reasonably contain weapons; search incident doctrine doesn’t apply to frisk because no arrest

The search incident doctrine doesn’t apply to a stop and frisk. Thus, when a container is removed from a person in a frisk and the officer has no reasonable basis for concluding that the container has a weapon in it, … Continue reading

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D.Mont.: How many ways can this vehicle search be sustained that go unmentioned?

Defendant was stopped for driving erratically through a construction zone, and when stopped, he was acting strange and officers ordered his hands up. He slowly raised them with a cell phone in hand. Hands on guns, officers approached and saw … Continue reading

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Cal.1st: Smell of MJ on the person is at worst indicative of an infraction and it can’t justify a search incident

Officers were attracted to a group of youths in an area known for potential gang violence. They approached them and informed defendant that he smelled of marijuana and searched him. Because smelling of marijuana isn’t a crime and possession of … Continue reading

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