A Roadside Chat question from an officer in Colorado: can police search a shoplifting suspect’s purse for evidence without making an arrest? The call came out of a Dollar General shoplifting report.
Can police search a shoplifting suspect’s purse without making an arrest?
The answer is going to be yes. Definitely yes in Colorado, but I believe the answer is yes everywhere. Let’s go through this.
Now generally speaking, if you have probable cause for somebody, and you search them and you find evidence, then you arrest them. Most courts are going to call that a search incident to arrest. But Anthony, the search came before the arrest, it didn’t come incident to it. Well, the Supreme Court requires that the search be contemporaneous, which courts have interpreted to be either right before or right after.
What warrant exception covers the search when you are not going to arrest?
Generally speaking, however, when you’re not going to make an arrest, the PC search is generally authorized under exigency. Because when you stop out somebody and you have probable cause that they have evidence, and you’re going to cite and release them or whatever, do you really have enough time under the circumstances to go get the warrant? Probably not. Most courts will justify it under exigency.
What happened on the Dollar General shoplifting call?
Here’s the background. They got dispatched to a Dollar General saying that they caught somebody, they saw somebody stealing makeup and putting it in a purse.
Now first of all, we know we got a classy girl, you know what I’m saying? If you got a suspect who’s stealing makeup from the Dollar General, ah, that’s gonna be a good looking lady right there. Okay, look, she’s gonna look like a clown after she puts that makeup on. But I digress. At least be a little more bougie, you know what I’m saying, like my wife, and get it at least from Walmart. Or if you’re really nice, Target. But I will continue.
They knew she put it in her purse. They called police, they gave a great description. He arrives in the area. She left the store, right, they’re not going to physically detain her. They arrive soon after, they see her in the same area walking away from the store, spot-on description of the suspect. So they got the probable cause, they got the victim.
And in this case she actually consented to a search of the purse, which is great. I’m glad that the officer asked for consent, because it gets around this whole issue. But the money question is: okay, when she says no, what am I gonna do?
Is there a case that allows a search on a non-custodial arrest?
I say search the purse. Now I have a case from Colorado that’s directly on point. The case is People v. Blackmon, and that is B-L-A-C-K-M-O-N.
So this is what the court said. It says arrests fall into two categories, custodial and non-custodial. A custodial arrest is made for the purpose of taking a person to the station house for booking procedures and filing criminal charges. Okay, that we get. A non-custodial arrest is a temporary detention of a suspect pending the issuance of a summons for a minor ordinance violation.
Right, during a non-custodial arrest an officer may conduct a pat-down search for weapons, as well as a search for instrumentalities or evidence of the specific crime for which the officer had probable cause to arrest, even though it’s non-custodial. So there is your case on point.
Why do courts uphold these searches when there is no arrest?
Courts will bend over backwards, in my opinion, to uphold these searches even without an arrest. They’ll call it exigency. They’ll call it a non-custodial arrest. They’ll call it an arrest without transportation. They’ll just bend over backwards, because if they don’t allow you to recover this evidence, then law enforcement is going to be stuck on scene with a minor violation, calls are racking up, and they know the evidence is in the purse but they can’t do anything without a warrant.
Can you arrest for a shoplifting you did not see happen?
And another logic would be, some officers actually can arrest, even though it wasn’t committed in their presence. Shoplifting may be an exception, or they have the shopkeeper be the complaining witness and make the citizen’s arrest. But they don’t want to do that, because that’s not what they want. They don’t want to take the people in for COVID.
And then the courts will say, wait a minute, let me get this straight. You could arrest, which will give you the full search incident to arrest. You could do that, but you don’t want to. So all you want to do is something less than that, which you have the authority to do. You just want to do a specific targeted search of the purse and so forth, recover the evidence. Well, if you could do this, then you can do those things underneath that as a lesser intrusion of the person’s liberties. I think that makes sense as well.
There’s your answer. Great question, keep them coming, guys.
And until next time my friends, stay safe, and keep up that amazing job you’re doing out there protecting your community.
The short version
- Definitely yes in Colorado, but I believe the answer is yes everywhere.
- The Supreme Court requires that the search be contemporaneous, which courts have interpreted to be either right before or right after.
- When you’re not going to make an arrest, the PC search is generally authorized under exigency.
- During a non-custodial arrest an officer may conduct a pat-down search for weapons, as well as a search for instrumentalities or evidence of the specific crime for which the officer had probable cause to arrest.
- Courts will bend over backwards, in my opinion, to uphold these searches even without an arrest.
- If you could do this, then you can do those things underneath that as a lesser intrusion of the person’s liberties.
Related from Blue to Gold
- People v Bland and Search Incident to Citation
- Search Incident to Arrest (SITA) in Florida
- Search Incident to Arrest
This article is an edited transcript of Roadside Chat Ep. #143. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
