5.3 WARRANTLESS SEARCHES
5.301 In General. The Virginia Supreme Court continues to adhere to the position that warrantless searches are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. 129 Moreover, under the Virginia Code, no law enforcement official or other person "shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer." 130
Despite these general statements and prohibitions, there is ample authority for warrantless searches in a variety of circumstances. The Virginia Supreme Court, for instance, has held that section 19.2-59 affords only the same protection against warrantless searches as that provided by the Fourth Amendment. 131 In other words, Virginia decisions recognize the usual exceptions to the warrant requirement adopted by the United States Supreme Court, despite the restrictive language of the statute.
5.302 Search Incident to Arrest.
A. In General. The United States Supreme Court had long adhered to the position that the police could, without a warrant and without probable cause, search a person lawfully arrested and the area within the person's "immediate control." 132 This exception to the warrant requirement is based on the protection of the police officers and was gradually extended to what is called the "search incident to arrest." This search occurred after the suspect was already in custody, and evidence of any crime, even one that was unrelated to the arrest, was considered legitimately seized. The cases validated the separate search incident to arrest that followed a protective search of a suspect for weapons that might be used to resist arrest or effect an escape or for evidence that might be destroyed. 133
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Despite the Supreme Court's reliance on these "exigencies" as justification for the right to search incident to arrest, the police did not have to make an independent judgment in each case following arrest that the person arrested might have a weapon or destroy evidence. Following the Supreme Court's decision in Arizona v. Gant, 134 however, searches of the vehicle compartment are restricted to allow a search for weapons there only if the suspect is still within reaching distance of the compartment at the time the search is conducted or if it is reasonable for the police officer to believe that the vehicle contains evidence of the offense for which the arrest is being made. In Gant, the defendant was arrested for driving on a suspended license—an offense for which no evidence could have been found in the car— so the Court held that the search was not reasonable. 135
Although the Court has held that the right to search incident to arrest necessarily follows every "custodial arrest," 136 when a non-custodial arrest is made for a traffic offense and the officer merely issues a notice of violation and a summons, there is no right to search incident to that arrest. 137 However, in Virginia v. Moore, 138 the United States Supreme Court held that if, rather than issuing a summons, an officer arrests a suspect in violation of section 19.2-74 of the Virginia Code, the exclusionary rule does not apply as long as the officer had probable cause to arrest under the Fourth Amendment. The Court reiterated that when officers believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest and search the person to ensure their own safety and to secure evidence; additional restrictions imposed by state statutes do not expand the Fourth Amendment's protections. 139
Whether the officer possessed a reasonable belief that circumstances justified making a full custodial arrest for a Class 1 or Class 2 misde- (2009).
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meanor is judged by an objective standard. 140 Moreover, the right to search incident to arrest is predicated, in the first instance, on there having been a lawful arrest 141 and the facts and circumstances giving rise to probable cause to arrest must have existed before the search incident. 142 However, even if the initial detention of a defendant by law enforcement officers is unlawful, the exclusionary rule does not apply to evidence of the defendant's subsequent conduct of fleeing, because the defendant's flight in violation of the officers' signals to stop was a new crime committed after the initial unsuccessful attempt to detain him. 143
In Thornton v. United States, 144 the Supreme Court clarified the scope of the right to search the interior of a vehicle following an arrest of the driver. An officer lawfully arrested the driver after the driver parked and got out of the vehicle. The Court ruled that the right to search the passenger compartment does not turn on whether the suspect left the vehicle at the officer's direction or whether he was in the vehicle when the officer initiated contact. The Court stated that the right to search applies to a "recent occupant," and while the suspect's status as a "recent occupant" may "turn on his temporal or spatial relationship to the car at the time of arrest and search, it certainly does not turn on whether he was inside or outside the car at the moment that the officer first initiated contact with him." 145 Citing individual privacy concerns, however, the Supreme Court in Gant further limited the scope of the search incident to arrest, noting that the type of offense also determines whether the search of the vehicle compartment can be justified by the possible existence of evidence connected to the crime of arrest. 146
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There is no per se rule that allows the search of the companion of a person validly detained or arrested based solely on the status of being a companion. The issue is whether, under the circumstances, a reasonable police officer would be warranted in the belief that he or she was in danger. 147
Once an item of the defendant's property has been properly seized incident to his or her arrest, any subsequent examination of that property is lawful without a warrant or additional showing. An item that has been lawfully seized ceases to be private. 148 This does not apply to the contents of cell phones. Absent consent, an officer generally must obtain a warrant to examine the contents of the defendant's cell phone. 149
B. Geographic Scope. The Chimel decision limited the right to search incident to arrest to the person arrested and the area "within his immediate control." 150 The exact geographic scope of the right has been discussed in a number of decisions. 151 Most of the questions raised have concerned whether the area searched was an area into which the defendant might reach in order to obtain a weapon or destroy evidence. One recurring issue has been whether defendants should be deemed to continue to maintain control over the area within reach after they have been arrested. Another recurring issue is whether the right to make the search within the designated area continues after the defendant's ability to grab has been eliminated.
The Supreme Court has expanded the right to search incident to arrest in the context of the arrest of the occupants of an automobile. Once the police have made a lawful custodial arrest of the occupant of an automobile, they may search not only the person of the arrestee but the entire passenger compartment, including any containers found there, closed or open glove compartments, consoles, or other receptacles. The scope of the right, however, does not extend to the trunk of the automobile. 152 However, in United States
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v. Currence, 153 the Fourth Circuit found that police arresting a suspected drug dealer on his bicycle were permitted to remove the end caps of the bicycle's handlebars to search inside because the caps could be removed with "minimal intrusion" and were under the defendant's immediate control.
After Gant, the right to search the interior of an automobile incident to the arrest of one of its occupants is more limited. Clearly, situations where the arrest occurs while the occupant is still in the vehicle would still support a protective search, and this likely extends to cases where, in response to the officer's actions, the occupant voluntarily exits the vehicle and is arrested for a crime where evidence of that offense could be in the vehicle compartment. 154 Under prior law, a person could be deemed a recent occupant of a vehicle even though the first contact with the police did not occur until after the arrestee had exited the vehicle, regardless of whether the arrestee was aware of the presence of the police. The former prerequisites for the lawful search of a vehicle incident to arrest were that the search be contemporaneous with the arrest and that the arrestee be a recent occupant of the vehicle. 155 Gant adds the nexus to the crime of arrest to the search protocol and cautions that, when it is not reasonable for the officer to believe that evidence of that crime can be found in the suspect's vehicle, the search incident is not valid. 156
C. Temporal Scope. The right to search incident to arrest is also subject to the condition that the search be "incident to" or "substantially contemporaneous with" the arrest. 157 Although the temporal limitation has not proved as troublesome for the courts as the geographic limitation, there have been, nonetheless, several recurring problems.
One of the major issues arising from the temporal limitation is whether the right to search incident to arrest can arise before the suspect has been formally arrested. Most courts addressing this issue have held that the search may precede the arrest as long as the search and the arrest are nearly simultaneous and the police have probable cause to arrest at the time the search takes place. 158
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Another recurring problem is whether a substantial delay in searching the person following arrest negates the right to make the warrantless search. In United States v. Edwards, 159 the Supreme Court...
