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WI: Arrest in living room did not permit search incident of bedroom

By John Wesley Hall, Jr.

Defendant was talking to officers in his backyard and then fled into his house to avoid them. He came out of the bedroom but was uncooperative, and he was peppersprayed and arrested in the living room. The first entry into the room to look for others was valid as a protective sweep. In the second entry, the officer looked under the bed finding drugs. The second entry was not valid as a search incident. "In Chimel, the United States Supreme Court held that a lawful arrest creates a situation justifying a contemporaneous, warrantless 'search of the arrestee's person and the area within his immediate control.'" The bedroom was not within his area of immiediate control. State v. Sanders, 2008 WI 85, 2008 Wisc. LEXIS 336 (July 9, 2008). The circuit erred in finding that defendant's detention for the drug dog was 38 minutes and not 78 seconds...continue to full post

Full post as published by Fourth Amendment on July 12, 2008 (boomark / email).