All right, we’ve got another question that comes up a lot: Is a search incident to a non-custodial arrest, such as a summons for a crime where evidence could reasonably be located on a person, legal?
This one comes from a cop in Colorado who had watched episode 421 on searches incident to a summons. He understood why a search incident to a trespass summons would not fly, because you are not going to find evidence of a trespass on the person. His question was whether he could reasonably use People v. Bland to look for additional evidence on a person he is only summonsing for misdemeanor meth possession.
What did People v. Bland actually hold?
What a great question, and actually, what a great case. People v. Bland is a case from 1994 from the great state of Colorado. What happened there in a nutshell is, in 1994, possessing less than an ounce of marijuana was a mandatory summons. You could not arrest back in this day. Right now the rules are even more different, because in Colorado today, under a certain amount of possession, I forget whether it’s under an ounce or whatever, it’s close to that, but that is decriminalized. But back in 1994 it was actually still illegal to possess marijuana, but the legislature held that you cannot arrest the person for it. So Bland was stopped for, reasonably believed to possess less than an ounce, but he was still searched for more evidence, and they found more evidence, and he was ultimately arrested.
So the case is from 1994. I’ll put the citation in the description below. But the court held, and I quote, it said that therefore, in the context of a non-custodial arrest, the arresting officer is entitled only to conduct a pat down search for weapons in circumstances where such a search would be authorized under the Terry line of cases. That makes sense. We can always do a Terry pat down if we have reasons to believe that the person could be armed or dangerous.
When does a summons let you search for evidence instead of just weapons?
But they also went on, and a search for instrumentalities or evidence of a specific crime for which the officer had probable cause to make the arrest. Usually in the case of non-custodial arrests for traffic violations, at most only a pat down search will be indicated, authorized, since a search of the person generally will not reveal any kind of evidence of the crime. But they went on to say a non-custodial arrest for possession of one ounce or less of marijuana, in violation of subsection 18-18-406, which I’m sure has been repealed by now, in contrast, may permit not only the weapons frisk but also an extensive search for evidence of marijuana possession.
What do you have to articulate before searching someone you are only citing?
Now, my suggestion for these cases is that when you do these type of evidence related searches, you articulate a few things. Number one, you have probable cause that they have more evidence on them. That’s what I believe the courts are looking for, at least ultimately at the Supreme Court. In other words, if we are going to issue a citation for somebody for some kind of paraphernalia and so forth, and we start searching them, and the court asks us, hey, why are you searching that person when you’re going to cite them for the meth pipe, and you say, well, because they had a meth pipe, I’m not sure that’s going to be enough. I think the courts, I know the courts are going to want to know why do you think the person has evidence on them right now.
They also want reason to believe there’s exigency. The fact that the people know that they may have evidence on them creates kind of exigency, because you’re going to release them.
How limited does a search incident to a citation have to be?
But I think most importantly, not only do you have the PC they have evidence on them, articulate why, but also the search is limited. Now, Bland kind of insinuates that you can do a full search incident to arrest even if you’re not going to arrest them. I don’t think the courts would have an appetite for that. Why are you searching their wallet, and every little crevice of their wallet, and their shoes and their belt line and so forth? I think the courts would want something a little more circumscribed, at least looking in areas where the evidence could be.
Can you look in an Altoids can for a stolen candy bar?
I’ll give you a great example. So when it comes to methamphetamine, and it’s a non-custodial arrest, that’s a pretty comprehensive search, you know where those drugs could be. But let’s say that you have a non-custodial citation, or situation, for shoplifting, and you have probable cause to believe that they stole a candy bar. I don’t believe that you can look in the Altoids can unless that candy bar is so small that you believe it could fit in there. But if you were looking for the narcotics, I do believe you can probably look in the Altoid can. That’s a common place that people can put drugs and so forth.
It’s a great question. Again, I’ll put the citation in the description below. Keep the questions coming. And until next time, my friends, you stay safe.
The short version
- Bland is a case from 1994 from the great state of Colorado. Back in 1994, possessing less than an ounce of marijuana was a mandatory summons.
- In the context of a non-custodial arrest, the arresting officer is entitled only to conduct a pat down search for weapons in circumstances where such a search would be authorized under the Terry line of cases.
- Number one, you have probable cause that they have more evidence on them. That’s what I believe the courts are looking for.
- The courts are going to want to know why do you think the person has evidence on them right now.
- Not only do you have the PC they have evidence on them, articulate why, but also the search is limited.
- I don’t think the courts would have an appetite for a full search incident to arrest when you’re not going to arrest them.
- I don’t believe that you can look in the Altoids can unless that candy bar is so small that you believe it could fit in there.
Related from Blue to Gold
- Colorado Courts on Cannabis, K-9s, and Car Searches
- Search Incident to Arrest
- Can Police Search a Shoplifters Purse for Evidence Without a Formal Arrest?
This article is an edited transcript of Roadside Chat Ep. #727. 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.
