Hamilton county, ohio

The Search of «lastname»’s __{ITEM OR CLOTHING}____ was Not a Lawful Search Incident to Arrest

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The Search of «lastname»’s __{ITEM OR CLOTHING}____ was Not a Lawful Search Incident to Arrest.

It is well established that warrantless searches are presumptively unreasonable under the Fourth Amendment. State v. Kessler, 53 Ohio St.2d 204, 207, 373 N.E.2d 1952 (1978). Several exceptions to the warrant requirement may justify a warrantless search, including the exception allowing search incident to arrest.

In Chimel v. California, the United States Supreme Court held that the warrantless search of an arrestee’s entire home could not be justified as a search incident to arrest. Chimel v. California, 89 S. Ct. 2034; 23 L. Ed. 2d 685 (1969). Rather, the Court found it is only reasonable to search the arrestee’s person and the area “within his immediate control.” Id.at 752. The Court construed this phrase to mean the area from which the arrestee might gain possession of a weapon or destructible evidence. Id. In 2009, the Court elaborated on this definition, explaining that “[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” Arizona v. Gant, 556 U.S. 332, 339, 129 S. Ct. 1710; 173 L. Ed. 2d 485 (2009). The Ohio Supreme Court embraced these directives in State v. Smith, observing that the exception “allows officers to conduct a search that includes an arrestee's person and the area within the arrestee's immediate control” solely due to the “interests in officer safety and evidence preservation.” State v. Smith, 124 Ohio St.3d 163 (2009), citing Chimel at 762–763 (emphasis added); Gant at 337.

Applying this framework, it is clear that the search of «lastname»’s jacket cannot be justified as a search incident to his arrest. {INSERT FACTS}

Therefore, justification of this constitutionally deficient search as one incident to «lastname»’ arrest does not apply.

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