Searches incident to arrest should not include handbags and other containers that are inaccessible to the detained defendant

Searches incident to arrest is an idea that gives many police delight — when such checks are permitted — as they represent a free fishing trip for criminal activity. However, it is one thing for police to search the worn clothing (and, sadly, even orifices) of arrested people, but quite another thing to search the arrestee’s handbag, backpack, or other such container as a mere incident of arrest. As a Fairfax criminal lawyer. I have not found published appellate Virginia caselaw on the matter. I do know that there is a significant appellate court split on the issue, and, fortunately, the United States Court of Appeals for the Fourth Circuit (in Richmond, Virginia) puts important brakes on searching the packs of arrested people who are consequently incapacitated from disturbing the contents thereof. Davis v. United States, 997 F.3d 191 (4th Cir. 2021). Although federal circuit court does not bind Virginia state courts, the language and geographic source of Davis brings a good possibility that Virginia state courts will rule consistently with Davis. 

SCOTUS has declined to resolve the split about searches incident to arrest and bags

In 2023, the federal Supreme Court declined to accept an appeal that would have enabled the court to resolve the split among federal courts about searches incident to arrest of bags, where the case at issue affirmed a conviction for illegal drugs  (methamphetamine) accompanied with large cash quantities, that followed the search of a fanny pack that an arrestee had handed a friend (over which the police took custody on their own accord), when the defendant was already arrested and without access to that pack and its contents. Scullark v. Iowa. Davis tells us that SCOTUS’s Gant v. Arizona opinion “concluded that police can ‘search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search’ (the ‘first Gant holding’). Id. (emphasis added). The ultimate inquiry under the first Gant holding is whether it was reasonable for the police to believe that the arrestee ‘could have accessed his car at the time of the search.’ Id. at 344, 129 S.Ct. 1710. Second, the Court concluded that “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle” (the ‘second Gant holding’). Id. at 343, 129 S.Ct. 1710 (internal quotation marks omitted). And because (1) the defendant had been secured and out of reach of the passenger compartment and (2) it was not reasonable to believe the vehicle contained evidence relevant to the crime of arrest—a traffic violation—the Court concluded that the search was unlawful. Id. at 344, 129 S.Ct. 1710.” Davis

What protection do I get from Virginia’s statute against warrantless searching?

Virginia Code § 19.2-59 provides that: “No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer. Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office.” Regrettably, the Virginia Supreme Court has decided that the foregoing statute on searches incident to arrest provides no more rights to people than the Fourth Amendment itself. See Thims v. Virginia, 218 Va. 85, 235 S.E.2d 443 (1977).

What should I do if police find contraband among my possessions?

If police searches find contraband through searches purportedly incident to arrest or otherwise, that might be used in a prosecution against you, do not wait around to know your right options and strong defenses to pursue. Fairfax criminal Jonathan Katz fully defends you against any contraband prosecutions, backed up by years of experience successfully defending hundreds of people charged with drug crimes, and thousands of people who have been charged with criminal offenses in general. For your free in-person confidential consultation with Jon Katz about your court-pending prosecution, call 703-383-1100, Info@KatzJustice.com, or (text) 571-406-7268.