Police officers are allowed to search a person for drugs, guns or other evidence of criminal activity in limited circumstances. One of the most common bases for searching a person is consent. The police can almost always approach a person and ask for consent to search him/her. Additionally, everyone who is arrested for a crime will be searched by the police. The primary legal justification for this search incident to an arrest is to make sure the suspect does not have any weapons on him/her to ensure the police officer’s safety when he/she takes the suspect into custody.
However, the arrest has to be valid for the search incident to the arrest to be legal. The police cannot search a person for illegal drugs, guns or other criminal evidence if there is no legal basis to arrest the person in the first place. For example, if a person commits a traffic violation, the police officer can give that person a traffic ticket, but the police officer is not allowed to search the person based on the traffic violation. The police officer can ask to search the person and/or his/her vehicle during the traffic stop, but the person has a right to refuse the police request to search. Likewise, if a person is in violation of some other ordinance for which jail time is not a potential penalty, the police cannot search a person based on a violation of that ordinance.
In a recent criminal case south of Jacksonville, Florida, police officers saw the defendant in a city park after dark. The city had passed an ordinance prohibiting people from being in the city park after dark due to drug activity in the park. The police officer approached the individual and told him about the ordinance. The police officer then arrested the defendant for violating that ordinance. Incident to the arrest, the police officer search him and found marijuana and drug paraphernalia in his pocket. The defendant was then arrested for possession of marijuana (cannabis) and possession of drug paraphernalia.
The criminal defense lawyer moved to suppress the evidence of the marijuana and drug paraphernalia arguing that the arrest for the city ordinance was illegal so the resulting search was also illegal. The judge agreed. Because the city ordinance could not result in jail time as a possible penalty, the police officer did not have a right to arrest and search the defendant. All the police officer could do was detain the defendant for the purpose of writing him a ticket.
The police officer also tried to justify the search by claiming the defendant put his hands in his pocket and the police officer was concerned he might have a weapon and be at risk. However, there was no objective evidence that the suspect was armed, so a search for officer safety was not justified. The evidence of the marijuana and drug paraphernalia was thrown out, and the possession of marijuana charge was dropped.