Tuesday, March 5, 2019

My purse is not my person

Police can search a person incident to arrest. But can they search the person's purse? No, at least not on the theory that the purse is an extension of the person. So said the Tenth Circuit this week in United States v. Knapp, declining to follow courts construing "person" to include containers held by the person at the time of arrest.

Here are the rules to know, as stated by the Tenth Circuit in Knapp:

"[S]earches incident to arrest are governed by a container’s location relative to the arrestee and the degree to which it can be accessed by or separated from the arrestee."

Whether a search of a container incident to arrest is justified depends on "the arrestee’s ability to access weapons or destroy evidence at the time of the search, rather than the time of the arrest" (emphasis added).

"[T]he degree to which arresting officers have separated an article from an arrestee at the time of the search is an important consideration."

In Knapp, officers searched the defendant's purse despite the fact that her hands were cuffed behind her back, three officers were present, her purse was closed and three to four feet behind her, and officers had kept exclusive possession of the purse since cuffing the defendant. This was not a proper search incident to arrest.

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