Can Premises Be Searched After the Service of an Arrest Warrant

[ballyhoo]

My question involves police conduct in the State of: California

So the local police have a pre-complaint ( Ramey) warrant for my arrest. They come to my home and arrest me. Barring plain sight, an exigency or consent, can they search my home? Can the officers include a paragraph in the arrest warrant asking for permission to search my home after they arrest me? Wouldn't they need a search warrant (a different form and authorities) in addition to the arrest warrant?

Thanks

[cdwjava]

My question involves police conduct in the State of: California

So the local police have a pre-complaint ( Ramey) warrant for my arrest. They come to my home and arrest me. Barring plain sight, an exigency or consent, can they search my home? Can the officers include a paragraph in the arrest warrant asking for permission to search my home after they arrest me? Wouldn't they need a search warrant (a different form and authorities) in addition to the arrest warrant?

Thanks

In general, absent probable cause and exigent circumstances, they would need a search warrant to search the home after you are arrested. However, they may be able to articulate good cause to search the immediate area where you were arrested.

Perhaps you would care to illuminate us on what happened?

[Insons Insontis]

Generally no, as the other poster has stated, unless there are exigent circumstances there is no need for them to enter your home. For instance, if you have a child in the home that needs supervision and you are the only parent that is on the way to jail, they can enter your home for the safety of the child in order to find another parent or guardian or take the child to protective services. They could also enter the home of a drug dealer based on an arrest warrant, and claim that the exigent circumstance for entering was to preserve evidence of drug distribution or manufacturing. If they actually make a dynamic entry into your home (read: break the door down and rush in), then they can certainly look around for anything in plain view and it would be admissible.

However, they cannot open a safe, combination briefcase or start going through your wife's panty drawer on a fishing expedition. If they knock on the door, walk outside and shut the door behind you. If they try to make an entry, state: "I do not consent to a search of my person, home, luggage, or vehicle. You do not have permission to enter my home." Since you are being arrested, they can certainly search you, but there is no need to search your home if you are already arrested and they have satisfied the intent of the arrest warrant.

Unless they have a search warrant for a specific piece of evidence in your home, and they have articulated that based on probable cause in the warrant that a Judge has signed, they have no need to enter your home to arrest you. If all they have is an arrest warrant, and you go outside and comply with their demands, anything that they would gather inside the home would not be admissible at trial as long as you do not give consent to search your home. You are correct, a search warrant is different than an arrest warrant. Expect the officers to try and claim some type of exigent circumstance, but do not fall for the bluff or answer any questions when you are arrested. If you start taking, you may very well say something that gives them a reason to enter your home. Shut up, and ask to speak to an attorney.

I would suggest installing a simple combination deadbolt on your doors so that when you shut the door behind you the door automatically locks. The home is secure, the police have the body subject to the arrest warrant (you), and thus there is no need to enter into the home. If they ask for the combination to enter, do not give it to them. Let them break down the door or whatever they are going to do, and they may decide to make entry in violation of the constitution, but nothing they would gather in the home would be admissible, unless it was specified in a warrant and based upon probable cause, and the location they are wanting to search is inside your home. The same would apply to a locked briefcase in your car. Even though you have a less expectation of privacy in your automobile, the fact that the briefcase is locked and you have not given consent to search would invoke the need of the officer to get a search warrant to bust the lock off the briefcase.

You can find many cases on point to this issue with a simple Google search.

[cdwjava]

Of course, if one does not make a habit of breaking the law, the police won't come knocking and there will be no reason to take all of these extraordinary steps to avoid a search.

[PTPD22]

So the local police have a pre-complaint ( Ramey) warrant for my arrest. They come to my home and arrest me. Barring plain sight, an exigency or consent, can they search my home?

Once they have located and arrested you, no. However, if you run through the house trying to evade them, that whole "plain sight" area expands as they chase you!

Can the officers include a paragraph in the arrest warrant asking for permission to search my home after they arrest me?

No, arrest warrants do not include clauses for residence searches. I believe California is different, but here in Washington cops can't even make a non-consensual entry into a residence to search for YOU, the subject of the arrest warrant (except for some VERY limited circumstances) without a separate search warrant.

Wouldn't they need a search warrant (a different form and authorities) in addition to the arrest warrant?

Yes, they would...absent a few narrow exceptions.

Of course, if one does not make a habit of breaking the law, the police won't come knocking and there will be no reason to take all of these extraordinary steps to avoid a search.

Well said.

[jk]

I had an acquaintance that was also a cop. He said it was typical for the police to arrest the party and take the longest route out of the house. They claimed a right to search basically anything within a reasonable reach due to regard for safety, something along the line of what a Terry search or pat down would allow. Don't know if it had ever been challenged but he seemed to suggest it hadn't, as far as he knew.

Carl, any comment on such an action?

[PTPD22]

I won't speak for Carl, but I'll throw my own opinion in. Taking the longest route out would run a strong risk of having any "open view" evidence tossed. Taking anything other than a direct exit route without a reasonable reason is very likely to be viewed as simply a transparently unauthorized search. Of course, they could probably still get away with it a significant percentage of the time. First, it wouldn't be an issue until A. valuable evidence was actually found, B. defense council was perceptive enough to recognize what happened and raised a challenge, and C. defense was able to clearly show the transgression so the judge understands that, for example, an item in the den couldn't have been in "open view" from a path from the bedroom to the front door.

As for the area within immediate reach at the time of the arrest, yes, that is permissible (well, most places outside of Washington and within some other limitations). That could include places like under the cushions of the couch where the arrestee had been sitting when the police contacted them. It would not include places like inside drawers or other enclosed areas (unless the arrestee was seen accessing those areas during or just prior to the time of arrest).

[jk]

I didn't mean to infer they would wander about the house meandering from room to room but merely exit the door furthest away so as to intentionally pass beyond areas that include closets or drawers that could be argued might contain a weapon. Therefore the comparison to a Terry search.

[cdwjava]

I had an acquaintance that was also a cop. He said it was typical for the police to arrest the party and take the longest route out of the house. They claimed a right to search basically anything within a reasonable reach due to regard for safety, something along the line of what a Terry search or pat down would allow. Don't know if it had ever been challenged but he seemed to suggest it hadn't, as far as he knew.

Carl, any comment on such an action?

The search incident to an arrest involves the "lunge area" where the suspect was arrested. However, there are caveats even in this instance and anything found that is not related to the arrest opr observed being concealed might be subject to suppression.

As for the longest route out of a house, I have never tried that and I suspect that anything found in such an instance would be suppressed. But, if we have to make an arrest within the house, a sweep of the residence for other occupants (and threats) for our safety IS a common occurrence. If you happen to have dope or contraband out in the open, then it's fair game. But, again, the search might be subject to suppression.

[jk]

The search incident to an arrest involves the "lunge area" where the suspect was arrested. However, there are caveats even in this instance and anything found that is not related to the arrest opr observed being concealed might be subject to suppression.

As for the longest route out of a house, I have never tried that and I suspect that anything found in such an instance would be suppressed. But, if we have to make an arrest within the house, a sweep of the residence for other occupants (and threats) for our safety IS a common occurrence. If you happen to have dope or contraband out in the open, then it's fair game. But, again, the search might be subject to suppression.

sounds like if properly (or improperly depending on how you look at it) constructed, it could be ruled valid although it would seem that it would be difficult to do so.