Criminal Law Library Blog
From: Quinlan Law Enforcement Enews Alert, December 10, 2008.
Q. A confidential source told the police that Smith was carrying crack cocaine. Trooper Miller, who operated a special canine unit and was advised about Smith’s suspected drug activity, stopped Smith’s vehicle because it failed to signal at a turn. When Trooper Miller approached the vehicle and spoke to the occupants, he noticed that Smith’s zipper was unzipped and that he kept tugging and pulling at his crotch area. Trooper Miller received Smith’s permission to search the vehicle and proceeded to walk his canine around the exterior of the vehicle before searching the interior. The dog did not alert. Trooper Miller then walked the dog around Smith. Although the dog did not alert, his “demeanor” changed when he stuck his snout in Smith’s crotch area. The dog was not trained to alert-to bite and scratch at the area where the drugs were hidden-at a human being, so this behavior indicated Smith was in possession of drugs. Smith would not consent to a search of his person, specifically stating that he would not drop his pants for the search. Trooper Miller contacted Detective Fugate, who sought to secure a state search warrant. While Detective Fugate pursued the warrant, Trooper Miller transported Smith and his passenger to the police post. He placed Smith in handcuffs prior to delivering him to the post. A search warrant was granted approximately an hour and a half later. During the search, approximately 34.1 grams of crack cocaine was discovered in a sock hidden in Smith’s underwear. Did the length of time between the arrest and the search make the search unlawful?
A. No. Searches of persons incident to a lawful arrest required no additional justification beyond the establishment of probable cause for arrest. Furthermore, a lawful search of the person incident to an arrest did not need to take place immediately after or at the site of the arrest. Once a lawful arrest was made, the suspect and any effects in his or her possession at the place of detention that were subject to search at the time and place of his or her arrest could lawfully be searched and seized without a warrant, even though a substantial period of time had elapsed between the arrest and the taking of the property for use as evidence.
Citation: U.S. v. Smith, 2008 WL 5060338 (6th Cir. 2008)