Legal Commentary

The Origins of the ?Search Incident to Arrest? Exception

By Orin Kerr

The Fourth Amendment permits the government to search a person incident to his arrest. In a thread below, commenter ?zuch? complains about this new-fangled assault on Fourth Amendment rights:

One of the fascinating Fourth Amendment questions is how the ?search incident to arrest? exception gets allowed to begin with. .. . . We need to stop carving the Fourth Amendment up into little pieces in the name of ?expediency? in police work. And we could get rid of a lot of the impetus for this ongoing assault on our rights if we just got rid of the unwinnable War on [Some] Drugs.

The search incident to arrest doctrine predates the War on Drugs, actually. In People v. Chiagles, 237 N.Y. 193 (1923), Benjamin Cardozo explained that the exception existed in ancient English common law and had continued to the present:

[T]here is one exception [to the Fourth Amendment] that has been established as firmly as the rule itself. The government may ?search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.? Weeks v. United States, 232 U. S. 383, 392, 34 Sup. Ct. 341, 344 (58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177). There is no dearth of illustrative precedents both in our own country and abroad. Dillon v. O?Brien, 16 Cox C. C. 245; United States v. Snyder (D. C.) 278 Fed. 650; United States v. Wilson, (C. C.) 163 Feb. 340; United States v. Welsh (D. C.) 247 Feb. 239; affirmed (C. C. A.) 267 Feb. 819; United States v. Murphy (D. C.) 264 Feb. 842; Woolfolk v. State, 81 Ga. 551, 562, 8 S. E. 724; State ex rel. Murphy v. Brown, 83 Wash. 100, 145 Pac. 69; Getchell v. Page, 103 Me. 387, 69 Atl. 624, 125 Am. St. Rep. 307, 18 L. R. A. (N. S.) 253; State v. Hasson, 149 Iowa, 518, 254, 128 N. W. 960; *196 Closson v. Morrison, 47 N. H. 482, 484, 93 Am. Dec. 459; Houghton v. Bachman, 47 Barb. 388; 1 Bishop Crim. Pr. § 211; 9 Halsbury Laws of England, p. 309; 13 Id. p. 510.

The right goes back beyond doubt to the days of the hue and cry, when there was short shrift for the thief who was caught ?with the mainour,? still ?in seisin of his crime.? 2 Pollock & Maitland History of English Law, 577, 578. . . . The books speak broadly of searching the person of the prisoner for anything ?that may be of use as evidence upon the trial? (Thatcher v. Weeks, 79 Me. 547, 549, 11 Atl. 599), or for anything ?that will aid in securing the conviction? (Holker v. Hennessey, 141 Mo. 527, 539, 42 S. W. 1090, 39 L. R. A. 165, 64 Am. St. Rep. 524; cf. Weeks v. United States, supra).

In the Weeks case, from 1914, the U.S. Supreme Court had written the following about the search incident to arrest exception:

[T]he right on the part of the government [has been] always recognized under English and American law to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop.Criminal Procedure § 211; Wharton, Crim. Plead. & Practice 8th ed. § 60; Dillon v. O?Brien, 16 Cox C.C. 245.

More recently, in his concurring opinion in Thornton v. United States, Justice Scalia also cited some pretty old authorities. For the view that the search incident to arrest doctrine should focus on concealment or destruction of evidence, he cites the following:

Holker v. Hennessey, 141 Mo. 527, 539?540, 42 S. W. 1090, 1093 (1897); Dillon v. O?Brien, 16 Cox C. C. 245, 250 (Ex. Div. Ire. 1887); Reifsnyder v. Lee, 44 Iowa 101, 103 (1876); S. Welch, Essay on the Office of Constable 17 (1758).

On the other hand, for the broader view that the exception permits a search for evidence, he cites other authorities:

United States v. Wilson, 163 F. 338, 340, 343 (CC SDNY 1908); Smith v. Jerome, 47 Misc. 22, 23?24, 93 N. Y. S. 202, 202?203 (1905); Thornton v. State, 117 Wis. 338, 346?347, 93 N. W. 1107, 1110 (1903); Ex parte Hurn, 92 Ala. 102, 112, 9 So. 515, 519?520 (1891); Thatcher v. Weeks, 79 Me. 547, 548?549, 11 A. 599, 599?600 (1887); 1 F. Wharton, Criminal Procedure §97, pp. 136?137 (J. Kerr 10th ed. 1918); 1 J. Bishop, Criminal Procedure §211, p. 127 (2d ed. 1872); cf. Spalding v. Preston, 21 Vt. 9, 15 (1848) (seizure authority); Queen v. Frost, 9 Car. & P. 129, 131?134 (1839) (same); King v. Kinsey, 7 Car. & P. 447 (1836) (same); King v. O?Donnell, 7 Car. & P. 138 (1835) (same); King v. Barnett, 3 Car. & P. 600, 601 (1829) (same)

Either way, it seems that the doctrine has been around for a while.

Full post as published by The Volokh Conspiracy on December 14, 2010 (boomark / email).