This article will discuss what is required to conduct a full search of a person—depending on the situation—and what reasons the officers need to conduct a search. Obviously, the best course of action is for an officer to obtain a search warrant, followed by consent, followed by other justifications that are established based on how intrusive the search is.

Searches Incident to Arrest

When the officers make an arrest, they are free to conduct a search incident to that arrest. This means that the officers can conduct a search within the scope of the arrest to remove any evidence that might be connected with the crime.

Birchfield v. North Dakota

579 U.S. 438 (2016).

Convicted with driving while impaired and refusal to take a breath and blood test.


Whether the law can criminalize refusal to search incident to arrest without violating the Fourth Amendment.


Officers may search a person and the area within their immediate control without a warrant when they arrest a suspect (because it prevents the destruction of evidence and protect the officers). This rule applies even if there is no reasonable suspicion, probable cause, or presence of a weapon.


Breath tests, but not blood tests, may be made incident to an arrest (without a search warrant).


Birchfield had driven off the road and into a ditch. When the officer came to help, he realized that Birchfield was drunk and conducted several sobriety tests (which Birchfield failed). At this point, the officer arrested Birchfield and told him that he needed to have a breath and blood test and refusal would subject him to criminal penalties. Birchfield refused the test and later plead guilty to violating the refusal statute.


First the court works through the interest of the government in conducting these tests. They are to ensure highway safety. Also, the burden on the subject is minimal for a breath test, only requesting the subject to blow through a straw. On the other hand, blood tests are much more intrusive on the subject because their pierce the skin.

Second, the court looks at the interest of the subject, their privacy which is significant. However, the burden on the government is too great to require a warrant for every breath test.

State v. Hufnagel

745 P.2d 242 (Colo. 1987).

The officers obtained an arrest warrant for Hufnagel for possession of cocaine. As the officers arrested him, he glanced to the nightstand so the officers searched the nightstand (about 10 feet away from the defendant). The question is whether the search extended beyond the scope of the search incident to arrest.

The zone of immediate control extends to the zone the defendant could reach immediately before the arrest occurs. The purpose for this policy is because we do not want to incentivize a delay of arrest.

Addresses the zone of immediate control by space.

People v. Boff

766 P.2d 646 (Colo. 1988).

The officers observed Boff leave a weed farm. After arresting him and taking him to the station, they searched his backpack several hours later (without a warrant). The rule is that the search needs to occur at the time of the arrest unless (1) the item could be searched at the time of arrest (meaning the item is within the zone of immediate control) and (2) is “immediately associated” with the person (such as a purse or backpack). If so, the search could occur later. Boff’s backpack falls within this scope.

Addresses the zone of immediate control by time.

State v. McGrane

733 N.W.2d 671 (Iowa 2007).

After lawfully entering a home due to an arrest warrant, officers observed McGrane being fishy upstairs. Once McGrane came downstairs and was arrested, the officers went upstairs and discovered drugs upstairs on the coffee table being prepped for sale.

Under the original rule, this is outside the zone of immediate control. Is a protective sweep? A protective sweep can extend to areas adjacent to the defendant and the rest of the house where there is reasonable suspicion a person could be present and potentially endanger the police. See Maryland v. Buie, 494 U.S. 325 (1990). Here, the search was beyond the scope because there is no suspicion that there was another person upstairs.

Body Searches at the Jail

Maryland v. King, Jr.

569 U.S. 435 (2013).

King was convicted of rape.


Whether the DNA evidence collected in connection to the rape was an unconstitutional search.


When the search is made without a warrant, the court must weigh the interests of the government against the subjects expectation of privacy. The more intrusive the search, the heavier the interest must be.


There is a substantial interest that outweighs the expectation of privacy. Therefore, the conviction stands.


As King was being booked, he was subjected to a DNA swab test (authorized by a state statute for subjects charged with a serious crime). Several weeks later, after he paid bail, his DNA test came back with a hit on an unsolved rape case from 5 years previously. This information was used to indict King before a grand jury.


The state has a significant legitimate interest in knowing the identity of the person arrested, whether he is wanted elsewhere, and ensuring recapture should he flee. This interest along with (1) the minimal intrusion of a DNA swab test and (2) minimized expectation of privacy subject to arrest is sufficient to justify the search without a warrant.

However, the dissent argues that this is an unlawful search, no matter the circumstances—especially because the statute’s stated purpose is for investigatory reasons (which normally require a warrant), rather than identification reasons. That reason, in addition to the fact that identification doesn’t happen until months later, the state’s interest is significantly diminished.

Additional Notes

Officers are also authorized to conduct more invasive searches such as strip searches and inventory (personal items) belongings.

People v. More

764 N.E.2d 967 (N.Y. 2002).

After conducting an arrest at the home, the officers conducted a strip search upstairs in the same home where they discovered additional drugs. An intrusive body search outside of the jail may be conducted if (1) there is a warrant unless excused by exigent circumstances, (2) clear indication (more than probable cause) that the contraband is present, and (3) the test must be conducted in a reasonable manner. See Schmerber v. California, 384 U.S. 757 (1966). Presently, the search was lacking on all three elements. Again note, this rule does not apply when the strip search is conducted in a jail.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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