Exploring the Constitutionality of Search Incident to Arrest without Warrant

Abstract

Search at Arrest A search incident to arrest a lawfully arrested victim without probable cause or warrant is a reasonable Fourth Amendment search (Samaha, 240). The search incidents to arrest are essential to protect officers from suspects who might injure or kill them, prevent arrested victims from escaping, and preserve evidence that suspects might destroy or damage. To this effect, one can argue that there is constitutionality regarding searches of arrested persons without warrants. Arguing from such a point of view, it is clear that when an arrest is made, it remains reasonable for the arresting officer to search the arrestee to remove any weapons that they might seek to use to resist arrest or enhance escape. It is also imperative to search at arrest to ensure the safety of the arresting officer and the arresting process in general. However, once the person is separated from anything else from the victim's person, a court may require a warrant to search such items to ensure the search remains supported under the Fourth Amendment. Such warrants may compromise the initial mission of the arrest as the arrestee may take advantage of the protection and compromise the anticipated evidence contained in items like purses and wallets that some state laws define as separate from the person entitled to a general search. Therefore, one can argue that the differences in the search for a person and items separated from a person make little sense in defining the reasonability of the search. The arresting officer should be given the power to search the person and any item within that person to have abrupt access to everything that the arrestee might be having if relevant to the case. Work Cited Samaha, Joel. "Criminal Procedure Companion CD-ROM." (2005).