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Search Incident to Arrest: When There's a Gap Between the Crime and the Arrest

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by: Ryan • June 5, 2013 • no comments

The exception to the warrant requirement "search incident to arrest" is misnamed to some extent. It's not just the arrest that counts. There must be some sort of proximity -- or nexus, but even that word can be misleading -- to the crime itself.With that in mind, the COA held today that a search incident to arrest wasn't justified for a robbery when the arrest occurred six days after the crime was committed.

The record is devoid of any objective nexus between what defendant was wearing on August 24 and the August 18 taco truck robbery. Further, as for the cash found in defendant's pocket, the record is devoid of testimony by officers as to the requisite belief that the fruits of the taco truck robbery that is, the crime of arrest reasonably could be found on defendant's person nearly a week later. Accordingly, the trial court's "search incident to arrest" rationale for denying suppression of defendant's shoes, clothing and derivative evidence was erroneous.

In this case, there wasn't an arrest warrant, but even if there were, it wouldn't have made a difference to the analysis.

The issue doesn't come up a lot, because most inventory policies serve to moot out any potential challenges to a search incident to arrest. But the issue does come into play when the evidence doesn't fall into the overlapping parts of a arrest/search/inventory Venn Diagram, as here.

The opinion -- State v. Lovaina-Burmudez -- also touches on the law on inventory policies, and further it provides a good refresher on inevitable discovery. It's not often that we get three distinct issues addressed in one opinion, especially so thoroughly and thoughtfully. But even where I disagree on some of the analysis, it's in opinions like there where the Court of Appeals really shines, because -- agree or disagree -- no one can dispute the heavy lifting and careful analysis contained therein. And it makes my occasional frustration regarding delay seem a little petty in comparison.