Arrests & SITAs

What does Watson say about warrantless arrests in public?

• If a person has committed a felony in public, officers may arrest without a warrant so long as they have probable cause.

• This creates an “anomaly”:

  • To seize property, officers usually need a warrant.

  • To seize a person in public, probable cause alone is enough.

Takeaway: For public felony arrests, the Fourth Amendment does not require an arrest warrant — PC in public is sufficient.

What rule did Atwater add about misdemeanor arrests?

• Officers can make a full custodial arrest for a misdemeanor committed in public, as long as they have probable cause and the offense is committed in the officer’s presence.

• There is no constitutional requirement to issue only a citation.

Takeaway: Even for minor offenses, if committed in public with PC, officers may arrest rather than cite and release.

When is deadly force permissible under the Fourth Amendment?

• Officers need a forward-looking reason to believe the suspect is dangerous to officers or the public.

• Deadly force is allowed only if:
  1⃣ The suspect is threatening serious physical harm, and
  2⃣ Officers have probable cause to believe the suspect poses that threat.

• Where feasible, officers should give a warning like “Stop or I’ll shoot.”

Takeaway: Deadly force isn’t about past crime alone; it’s about future danger to others.

How did Graham v. Connor extend Garner?

• The Fourth Amendment reasonableness test applies to all claims of excessive force during arrest or seizure.

• Courts evaluate:
  1⃣ Severity of the crime,
  2⃣ Immediacy of the threat to officers or others,
  3⃣ Whether the suspect is resisting or fleeing.

Takeaway: Excessive force is judged under a totality-of-the-circumstances, objective reasonableness standard — no hindsight and no focus on the officer’s subjective intent.

What is a Gerstein review, and why is it needed?

• When an arrest is made without a warrant, there has been no magistrate check beforehand.

• Gerstein requires that, after a warrantless arrest, a judge promptly review probable cause.

• This can be an ex parte proceeding; it doesn’t have to be a full adversarial hearing.

Takeaway: Gerstein review is the back-end judicial safeguard ensuring PC for someone held after a warrantless arrest.

How soon must the Gerstein review occur?

• The benchmark is 48 hours.

• If the PC determination happens within 48 hours, it’s usually presumed reasonable.

• After 48 hours, the burden shifts to the government to justify the delay.

Practical note: Even if the defendant “wins” on timing, the remedy is weak — officers can usually just refile.

Takeaway: Gerstein must be prompt; 48 hours is the general line.

What does a search incident to arrest permit, and why?

• Allows officers to search the arrestee’s person and the area within their immediate reach (the “grab area”).

• Rationale:
  1⃣ Officer safety – find weapons.
  2⃣ Prevent destruction of evidence.
  3⃣ Potentially discover new evidence related to the crime.

Takeaway: SITA is a bright-line exception tied to a lawful arrest, not to a separate PC showing for the search.

What did Robinson say about the scope of SITA on the person?

• Once there is a lawful custodial arrest, officers may conduct a full search of the arrestee’s person — no extra PC needed for the search itself.

• This is a bright-line rule: a full search is allowed every time someone is taken into custody.

• Limit: This does not automatically extend to cell phones (see Riley).

Takeaway: Lawful arrest → automatic authority for a thorough physical search of the person.

Why did the Court refuse to extend Robinson to cell phones?

• Phones contain massive quantities of sensitive data (far beyond a wallet).

• Once the phone is seized, the person cannot destroy the digital contents in the officer’s hands.

• The Court held:

  • Officers must get a warrant to search the contents of a phone absent a true exigency.

Takeaway: Phones are different in kind — SITA does not unlock a free pass to rummage through digital data.

Does issuing a citation (without arrest) allow a search incident to arrest?

• No. If officers only issue a citation, they cannot perform a full SITA.

• The justifications for SITA (custodial danger, evidence preservation) aren’t present when the person is not taken into custody.

Takeaway: No arrest = no SITA. Citation ≠ authority for a full search.

What happens if state law says “citation only,” but police arrest anyway?

• In Moore, officers arrested someone even though state law mandated a summons, not custody.

• SCOTUS held:

  • The arrest was still constitutional under the Fourth Amendment because there was probable cause.

  • Violating state arrest procedures doesn’t automatically make the arrest unreasonable under the 4A.

Takeaway: 4A reasonableness is governed by federal constitutional standards, not by state-law technicalities.

What areas inside a home can be searched incident to arrest?

• Police may search closets and other spaces immediately adjoining the place of arrest from which an attack could be launched.

• Beyond that, they need reasonable suspicion for a protective sweep, or a warrant/exigent circumstances.

What does SITA allow inside a car after an arrest?

• Police may search the passenger compartment when they believe there may be:

  • A weapon, or

  • Evidence of the crime of arrest in the vehicle.

• Officers can also ask a person to step out of the car if there is a hunch of danger.

What is an inventory search of personal items, and why is it allowed?

• When a person is arrested and processed, their personal items are inventoried.

• Rationale:
  1⃣ Keep contraband out of jail.
  2⃣ Protect the arrestee’s property.
  3⃣ Protect the government from claims/lawsuits.

• This is an administrative search — no warrant or PC needed.

Rule: There must be a standard policy or routine; no individual discretion about whether or how to do the inventory.

What did Edwards say about timing of searches of clothing in custody?

• Suspect was jailed in street clothes; hours later, police realized the clothing itself might be evidence (paint chips), so they seized it and gave jail clothing.

• Court upheld the search even though it occurred hours after arrest.

Takeaway: Once someone is in lawful custody, their belongings may be searched/ inventoried later; but professor notes it’s often wise to get a warrant if time passes.

Are visual strip searches at jail intake constitutional?

• Yes, for those entering general jail population, SCOTUS upheld visual strip searches (including observation of private parts, squat-and-cough).

• Treated as an administrative search tied to jail security.

Takeaway: Broad deference to jailers on security protocols; strip-search intake can be reasonable under 4A.

Can police take DNA from arrestees at booking?

• King upheld DNA swabs (cheek swab) from persons arrested for serious crimes, for comparison to a DNA database.

• Framed as a Fourth Amendment reasonableness question; Court identified multiple government interests:
  1⃣ Identifying who is being arrested,
  2⃣ Protecting facility/staff,
  3⃣ Ensuring appearance at trial,
  4⃣ Assessing danger for bail decisions,
  5⃣ Solving other crimes / freeing the wrongly convicted.

Dissent (Scalia): DNA swabs reveal a lot of deep personal data, even if physically minor.

Takeaway: For serious offenses, DNA collection at booking is generally allowed as a reasonable search.

When is a bodily intrusion too much under the Fourth Amendment?

• In Winston, the state wanted surgery to remove a bullet from a suspect.

• Court held this was unreasonable — too invasive and risky.

• Reasonableness requires a balancing of interests and less intrusive alternatives (e.g., x-rays).

Takeaway: Highly invasive procedures like surgery are usually unreasonable searches.

When is a warrantless blood draw permissible?

• In Schmerber, officers took a blood sample without a warrant from a DUI suspect after an accident.

• Court approved it because:
  1⃣ There was probable cause,
  2⃣ Exigent circumstances (BAC dissipates; accident scene required attention),
  3⃣ Procedure done in a reasonable medical manner.

Takeaway: PC + real exigency + reasonable method can justify a warrantless blood draw.

Did McNeely create a blanket rule that all DUI blood draws are exigent?

• No. The Court rejected a per se rule that BAC dissipation always creates exigency.

• Officers must decide case-by-case whether they have time to get a warrant, especially now that telephonic warrants exist.

Takeaway: No automatic emergency for every DUI; exigency is evaluated under TOC, not a bright line.

How did Birchfield distinguish breath and blood tests?

• States can treat refusal to take a breath test as a crime or impose penalties under implied consent.

• BUT blood draws are more intrusive, and you cannot criminally punish someone for refusing a blood draw.

• Breath tests can be justified as searches incident to arrest for DUI; blood tests cannot.

Takeaway: Breath = OK as SITA with implied consent penalties; Blood = more protection, no per se SITA.

What did Mitchell say about unconscious DUI suspects?

• When a suspected drunk driver is unconscious (so breath test isn’t possible), exigent circumstances usually permit a warrantless blood draw.

• Not absolute: officers must get a warrant if:
  1⃣ Doctors wouldn’t otherwise draw blood, or
  2⃣ Officers have no competing emergency tasks.

Takeaway: Unconscious + serious DUI context = strong presumption of exigency, but still case-specific.

What did Whren decide about pretextual traffic stops?

• If officers have probable cause to believe a traffic violation occurred, the stop is reasonable under the Fourth Amendment regardless of their real motive.

• The 4A test is objective, not subjective.

• Claims of racial profiling or discrimination are analyzed under the Equal Protection Clause, not as Fourth Amendment violations.

Takeaway: As long as there’s objective PC for the traffic violation, the stop stands — even if it was just a pretext to look for drugs, guns, or gang activity.