Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in Kansas about a practice that comes up all over the country. Arrest on an arrestable offense, search incident to that arrest, and if nothing turns up, let them go. Anthony’s answer is no, and he explains why the Supreme Court already closed this door.
Can we arrest somebody for driving while suspended, search them, then don’t find any evidence that we care about, and then release them, unarrest them?
Hey guys, my name is Anthony Bandiero. I’m an attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you the roadside chat. So this question does come up a lot around the country, and let’s kind of go through it.
This question came from a person in Kansas. So basically there’s this practice apparently of, hey, we have an arrestable offense, we can arrest this person for XYZ, let’s call it driving while suspended. So we arrest them, right, quote unquote we arrest them, we search incident to arrest, we get into their pockets, we get into their backpack and so forth, their waistband, and we don’t find anything.
And we run them and there’s no other issues going on with them. Or we run them before we arrest them and we find that they have a drug history, and we arrest them, we don’t find anything, and then we decide, you know, I’m gonna release you today, you’ve been so cooperative.
But the whole search was a ruse. The whole arrest was fake. The cop knew that if he or she didn’t find anything, the person was going to be released, but if you found something we were going to go through with the arrest.
Are we lawful?
Has the Supreme Court already answered this?
The answer is no. That issue is in essence the Supreme Court case Knowles v. Iowa. You can find it just looking up under Knowles, K-N-O-W-L-E-S.
There, an officer stopped Knowles for speeding, and he had the power to arrest Knowles for speeding. And he decided, all right, I’m just going to search you, because I have this power. I’m going to search you, and if I find something I’m going to arrest you, but if I don’t I’m going to basically release you.
The Supreme Court rejected this authority to just search people without a true custodial arrest.
Why does a search incident to arrest require a real arrest?
Remember, why do you have a search incident to arrest? You have it because the person is going to be transported. It’s custodial.
The case is Chimel, and the other case is Robinson. In both of these cases the Supreme Court is making it clear that it’s the fact of the arrest, the custodial arrest, that allows us to search them incident to arrest.
And if you don’t have that custody, we’re not taking possession of the person, then there is no overarching government reason to intrude onto their person, to go into their pockets, to make sure they have no weapons, means of escape, and so forth.
If all we have is a person with driving while suspended, there is no evidence of that crime. So there is no compelling reason to even search them without an arrest.
So what should you be doing instead?
We should be on the up and up here. If you’re going to arrest them, arrest them, take them to jail.
Some courts though will say, look, as long as the custodial arrest follows, even if the cop had an ulterior motive. Right, I really wouldn’t arrest you for driving while suspended, but I think you may have evidence on you, I can arrest you, I’m going to search you, and I find evidence, I take you to jail. That is not unlawful in most states, because the arrest ultimately occurred. So I guess as long as you take them to jail, then objectively it’s fine, even though subjectively you didn’t like it.
But if you search and then arrest, and the court believes that you did not have a legitimate reason for doing that, then you are basically flying in the face of the Supreme Court, and you’re making bad case law. First of all, that’s not how things work around here. We don’t get a search incident to arrest without intending to arrest, in my view.
When is it legitimate to unarrest someone?
Now, before we leave here, you may have a legitimate reason for unarresting them. Look, it’s happened to me.
I remember I arrested a juvenile for reckless driving, and his parents came out and they looked pretty pissed, to be honest. They were like, this is unacceptable, we gave you privileges of the car, you obviously got arrested for reckless driving. And they’re like, look, if you give him to us, we will take care of business.
And I’m thinking to myself, well, hey, I like how you’re acting, because one, I like parents to be involved in their kids’ lives and this discipline is a good thing, and two, arresting juveniles is a pain in the ass. So here you go mom and dad, here’s your kid back. I unarrested him.
But if his parents never showed up to the scene, or maybe didn’t act like that, maybe I would have gone through with the arrest.
The point is, I sincerely intended to arrest him, and I unarrested him because of those factors. And maybe that makes sense, maybe it doesn’t. But the point is, it can happen.
Why does any of this matter beyond this one stop?
Guys, let’s make good case law out there. We already have an uphill battle in our courts when courts think we’re being shady about stuff like this, or when they think we’re using inventories to really just get into cars when otherwise we’d just let it go. We’re making bad case law. We’re begging the courts, please, please make life harder on me and my fellow brothers and sisters on the thin blue line.
Don’t do it. Be on the up and up. Make good case law. Be proud of your cases.
If any of your videos, if you’re called by CNN and Fox News and they say, hey, we’re going to show your body cam from last night, I want you to immediately think, thank God, finally people are going to see good police work out there. Honey, get the kids, we’re going to watch the news tonight, you’re going to see what Daddy does for a living.
Feel good about your cases. Do the right thing.
The short version
- Arresting, searching, and then releasing when nothing turns up is not lawful.
- That is essentially Knowles v. Iowa. The Supreme Court rejected the authority to search people without a true custodial arrest.
- The reason you get a search incident to arrest is that the person is going to be transported. It’s custodial. That’s Chimel and Robinson.
- If we’re not taking possession of the person, there is no overarching government reason to go into their pockets.
- Driving while suspended has no evidence of the crime to find. So there is no compelling reason to search at all without an arrest.
- An ulterior motive is generally fine in most states if the custodial arrest actually follows. Searching first with no intent to arrest is not.
- Unarresting for a genuine reason after a sincere arrest is a different thing, and it happens.
- We don’t get a search incident to arrest without intending to arrest, in my view.
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Related from Blue to Gold
- Search Incident to Arrest
- Searching a Person Without an Arrest
- People v Bland and Search Incident to Citation
This article is an edited transcript of Roadside Chat Ep. #435. 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.
