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When is a “Search Incident to Arrest” Illegal?

There are circumstances in which a police officer may stop and search a person without first obtaining a warrant. One example is what is called a Terry stop. Also known as “stop and frisk,” this is where an officer has “reasonable suspicion” that an individual may be engaged in criminal activity and carrying a weapon. In this scenario, the officer is allowed to briefly detain and “pat down” the individual’s outer clothing to check for weapons.

An officer may also search a person who has been lawfully arrested based on probable cause that they have committed a crime. A “search incident to arrest” must generally be confined to the area under the suspect’s immediate control. In other words, an officer can legally search an arrested suspect’s pockets for drugs or weapons. But the officer cannot then go to the suspect’s house five miles away and search the premises without first obtaining a warrant.

Maryland Court Throws Out Drug, Weapons Convictions Based on Illegal Search

It is important to emphasize that a search incident to arrest cannot itself form the basis of the arrest. That is to say, the officer must first have probable cause to arrest the defendant before conducting the search. The officer cannot conduct the search first and arrest the suspect based solely on what that search uncovered.

A recent decision from the Maryland Court of Special Appeals, Sinclair v. State, provides a helpful illustration. In this case, two police officers observed a group of people on the street “kneeling in a circle, facing inward toward each other,” according to court records. When the officers approached the group, they noticed there was “dice and money on the ground in the middle of the group.” One of the officers then asked if anyone in the group had anything illegal on them.

The defendant in this case–one of the people in the group–admitted he had “about an ounce” of marijuana on him. One of the officers then placed the defendant in a “control” hold and proceeded to conduct a pat-down search, which uncovered a handgun. Prosecutors subsequently charged the defendant with possession of a firearm by a person under the age of 21 and possession of marijuana.

The defendant challenged the legality of the search. The prosecution initially argued this was a lawful Terry stop. The judge agreed and upheld the search. The defendant then entered a conditional guilty plea, reserving his right to appeal on the question of the search.

Before the Court of Special Appeals, the prosecution conceded this was not a legitimate Terry stop. Instead, the state now argued this was a lawful search incident to arrest. The Court of Special Appeals disagreed. Initially, the officers approached the defendant’s group based on suspicion they were engaged in illegal gambling. But as the appellate court noted, the officers never said they observed any gambling. Rather, their suspicion was based on the defendant’s presence near “gambling paraphernalia.” So there was no probable cause to arrest–or search–the defendant on that basis.

Now as noted above, the defendant did admit to the officer that he had marijuana on him. That certainly created probable cause for an arrest on the drug offense. But the issue here was that the officer did not actually arrest the defendant before conducting the search for the weapon. The search was more akin to a Terry stop, which everyone agreed was illegal. This was not a search incident to arrest, as the arrest only occurred after the officer found the gun. The Court of Special Appeals therefore reversed the defendant’s conviction.

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This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 705-5137.