Protective searches and searching vehicles, belongings and phones

Before Mason Pruitt was arrested, Reyes saw the bag in the center console. It was a clear plastic sandwich bag holding a few dozen small blue pills, sitting in the cup holder in full view of anyone standing at the driver's window with a flashlight. After Pruitt was handcuffed and searched, Malhotra searched the car. In the glove box he found a small digital scale and a box of small zip-top bags. On the passenger seat, one of Pruitt's two phones kept lighting up. The lock screen showed the first lines of new messages: 'u still good for 20' and 'where u at'. Malhotra photographed the screen without touching the phone, put both phones in a signal-blocking bag and did not try to open them.

Desjardins uses the Pruitt arrest to cover three kinds of searches that are not searches of the arrested person's body: protective searches during a detention, searches of vehicles and belongings, and searches of phones. Each has its own rules, and the rules in Canada and the United States differ more here than almost anywhere else in the course.

Protective searches during a detention

Before an arrest, officers sometimes detain a person briefly to investigate. A detention alone does not give a power to search. In Terry v. Ohio in 1968, the Supreme Court held that an officer who reasonably suspects that a person is armed and dangerous may conduct a limited pat-down of the outer clothing for weapons. Under Minnesota v. Dickerson in 1993, an officer who feels an object during a lawful pat-down whose identity as contraband is immediately apparent may seize it, but an officer may not manipulate the object to work out what it is. Under Michigan v. Long in 1983, officers may extend a protective search to the passenger compartment of a vehicle if they reasonably believe the person is dangerous and may gain immediate control of a weapon.

Haddad tells the class that the protective search is narrow for a reason: it exists to keep people safe, not to find evidence. 'If you feel something soft and you go into the pocket because you are curious, you are no longer doing a safety search,' she says. 'That is how good arrests get thrown out.'

Plain view

The bag of pills in Pruitt's console was not found by a search at all. Reyes saw it from a place she was lawfully entitled to be, the side of the car during a lawful traffic stop. Under the plain view doctrine, an officer who is lawfully in a place, has lawful access to the object and immediately recognizes its incriminating character may seize it without a warrant, as Horton v. California explained in 1990. Using a flashlight does not turn a lawful observation into a search. Seeing the pills, together with Pruitt's nervousness and his hand going to his waistband, gave Reyes probable cause to arrest him.

Searching a vehicle

In Arizona v. Gant in 2009, the Supreme Court held that officers may search a vehicle's passenger compartment incident to a recent occupant's arrest only if the arrested person is unsecured and within reaching distance of the compartment at the time of the search, or if it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. Pruitt was handcuffed in the back of car 9, so the first condition did not apply, but it was reasonable to believe that evidence of drug trafficking might be in the car, so the second did. Separately, under the automobile exception that dates back to Carroll v. United States in 1925, officers may search a vehicle without a warrant if they have probable cause to believe it contains evidence of a crime.

Desjardins draws a sharp line between a search for evidence of the offense and a general rummage. If Pruitt had been arrested on a warrant for an unpaid fine, there would have been no reason to think his car held evidence of that, and a search of the glove box would have been much harder to justify. 'The offense you arrested for tells you what you are looking for,' he says. 'What you are looking for tells you where you may look.'

Inventory searches and towed vehicles

When a vehicle is towed and impounded after an arrest, many services list its contents to protect the owner's property and protect the service from claims. Inventory searches of impounded vehicles are a recognized exception to the warrant requirement when conducted under standardized agency procedures, as South Dakota v. Opperman in 1976 and Colorado v. Bertine in 1987 held. An inventory cannot be a pretext for a search for evidence. Pruitt's car was towed to the police lot and inventoried under policy by an officer who was not involved in the investigation.

Phones

Phones are the hardest search question in modern policing, because a phone holds far more about a person's life than anything else they carry: messages, photographs, location history, banking, health information and contacts. In Riley v. California in 2014, the Supreme Court unanimously held that police generally must get a warrant before searching the digital contents of a phone seized from an arrested person. The Court said that the search incident to arrest exception does not extend to the data on a phone, because the data cannot be used as a weapon and the risk of evidence being destroyed can be addressed by other means, such as turning the phone off or placing it in a signal-blocking bag. Exigent circumstances, such as an imminent threat to someone's safety, can still justify a warrantless search in a specific case. The Ohio Supreme Court had reached a similar conclusion under the Fourth Amendment in State v. Smith in 2009.

Malhotra and the detectives did not search Pruitt's phones. They had no exigent circumstances, so they placed the phones in a signal-blocking bag and applied for a search warrant the next morning. The lock-screen messages had been displayed without anyone touching the phone, so Malhotra photographed them and noted exactly how they appeared. The phones were examined by the digital forensics unit under the warrant's terms. Desjardins tells the students that this is the safest approach in almost every case. 'If there is time to get a warrant, get one,' he says. 'A warrant takes a few hours. Losing a phone's evidence because you searched it unlawfully can lose the whole case.'

The students also discuss what officers should not do. They should not ask an arrested person to unlock a phone for them as a casual favor, scroll through photos 'to check whose phone it is', or look at a phone's contents in front of the person to provoke a reaction. Asking a person who has invoked the right to counsel for a passcode is a form of questioning, and courts are divided on whether a person can be compelled to unlock a phone. Seizing a phone to preserve it is lawful incident to arrest; examining its contents is a separate question.

Belongings and containers

Bags, backpacks, purses and containers in a person's possession at arrest can be searched incident to the arrest within the limits already discussed. Belongings that are not in the person's possession, such as a suitcase in a hotel room or a bag left with a friend, generally need a warrant or another lawful basis. Officers should also be careful about items that belong to someone else: a passenger's purse in a car is not automatically searchable because the driver has been arrested. In Wyoming v. Houghton in 1999, the Supreme Court held that when officers have probable cause to search a car, they may search passengers' belongings that could contain the object of the search, but a search incident to the driver's arrest under Gant is narrower.

In the practice case, the arrest is lawful but there is no urgency of either kind, so the answer is to secure the phone and apply for a warrant.

The decision tree reflects the safest practice in both countries. When the phone is secured and nobody is in danger, the answer is almost always to get a warrant.

Searches by consent

Officers sometimes ask people for permission to search when they have no other lawful power to do so. Consent can make a search lawful, but only if it is real. In Schneckloth v. Bustamonte in 1973, the Supreme Court held that consent must be voluntary in light of the totality of the circumstances. Police are not required to tell a person that they may refuse, although whether the person knew they could refuse is one factor. The prosecution must show that consent was freely and voluntarily given, and a person may limit or withdraw consent.

Desjardins warns the class that consent is fragile. A person who is under arrest, handcuffed and surrounded by officers may agree to almost anything, and a court may later find that they had no real choice. Consent also only extends as far as what was asked. If an officer asks to look in a person's car for weapons, the consent does not cover reading the papers in the glove box. And a person can withdraw consent at any time, after which the search must stop unless another power applies. For these reasons, many services discourage relying on consent after an arrest when another lawful power, or a warrant, is available.

In the Pruitt arrest, no one asked for consent. The search of his person and car relied on the arrest, and the phones waited for a warrant. Haddad says that is how it should be. 'If you have a power, use the power and record it,' she says. 'If you don't have a power, think hard before asking for consent from someone who is in handcuffs. Would a judge believe they really had a choice?'

Officers should also remember that a search of a vehicle or bag has to be recorded as carefully as a search of a person. The record should say where the officer looked, what they were looking for, what they found and where each item was found, because location often matters at trial. A scale in the glove box of a car that only Pruitt drove means something different from a scale found in a shared family car. Photographs taken before items are moved, and a sketch or note of where each item was, can answer questions that nobody thought to ask on the night. Malhotra photographed the console, the glove box and the passenger seat before touching anything.