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Police in Florida Do Not Have a Right to Search All of a Person’s Personal Property, Even After an Arrest

In Florida, and other states based on certain United States Supreme Court cases,, the police used to have broad authority to search a person’s property after an arrest.  The police used to be able to search the person, a nearby vehicle, possibly the person’s residence and any items reasonably close a person who was arrested.  For instance, if a person was arrested after a traffic stop, the police could search the vehicle and any items in the vehicle such as purses, backpacks, luggage, etc.  These searches were called searches incident to a lawful arrest and essentially gave the police in Florida the right to search anything that might belong to the person who was arrested if that thing was near the person at the time of the arrest.

The legal theory for such broad search powers was that the police had a right to search the area near where a person was arrested to make sure there were no weapons that the arrestee could use to harm the police officer or evidence that the arrestee could destroy.  The obvious flaw in this legal analysis was that when a person is arrested, that person is handcuffed and placed in the police vehicle.  That person obviously has no ability to go to his car or into his backpack in his car and grab a weapon that could be used to harm the officer.  He also has no ability to destroy evidence while sitting handcuffed in the police car.  As a result, the law was changed by judicial decision several years ago.

Now, the law allows the police to search a person who is arrested since an arrestee does have access to potentially dangerous items in his pocket or elsewhere in his immediate possession.  But, that authority does not extend to items that are outside of the arrestee’s control or ability to access.  Therefore, once the suspect has been arrested and handcuffed, the police can only search things that the suspect might be able to access, which is essentially nothing other than what might be in his pockets.

Keep in mind, the police still might be able to search a person’s vehicle if the police decide to tow the vehicle to the police station or a tow yard.  If a person gets arrested in his vehicle and there is no one else to drive the vehicle from the scene, the police might call for a tow truck.  In that case, the police have a legal right to search the vehicle for safety and also to inventory any items of value that are in the vehicle.  This is called an inventory search.  If they find evidence of a crime in the vehicle during the inventory search, the police can use that evidence to proceed with criminal charges.

In a recent possession of marijuana and controlled substances case south of Jacksonville, Florida, the police arrested the defendant for reckless driving on his motorcycle.  The defendant had a backpack with him at the time of his arrest.  The backpack was on the ground when the defendant was arrested for reckless driving.  However, the police officer searched the backpack and found marijuana and Oxycodone inside.  The police officer added the drug charges.

The criminal defense attorney filed a motion to suppress the evidence of the marijuana and Oxycodone arguing that the police officer did not have a right to search the backpack.  It was not within the defendant’s control and he had no ability to access it after he was arrested and when the police officer searched it.  The court agreed.  The defendant could not access the backpack so the police officer could not search it incident to an arrest.  The backpack was not a container in the vehicle that could be searched as part of an inventory search since the vehicle was a motorcycle.  There was no legal basis to search this backpack so the evidence of the marijuana and Oxycodone was suppressed and the drug charges were later dropped.