Kage3212 wrote:What is the extent to what you can search with regard to a search incident to a lawful arrest? I know you can search the person "and those things within his wingspan/around him."
But if the guy is cuffed sitting on a floor, and there is a box right next to him which could arguably hold a gun, can you search that box while he is cuffed?
I don't think it would come under a Search Incident to Lawful Arrest, but it might come in under the plain view exception. Officer would need: 1) to be legitimately on the premieses; 2) the contraband (the supposed gun in the box) is immediately apparent; and 3) the officer has probable cause to believe that the gun was in there and relates to a crime.
Interested to hear others' opinions on this.
I don't think it'd come in under the plain view exception in this hypothetical because the box "could arguably hold a gun." I'm assuming that the box is not clear, meaning that the officer cannot see that there is in fact a gun inside the box. For the plain view exception, the evidence must be in plain view as is -- i.e., the officer cannot remove the lid and go "oh now it's in plain view!"
I'm having a harder time with the search incident to lawful arrest, though. That search is designed to prevent harm to officers or destruction of evidence. If the suspect is cuffed, I could see arguing that there is neither a risk of harm to officers nor a risk of the suspect destroying the evidence. However, that seems to always be the case with a search incident to a lawful arrest -- the police are searching after a lawful arrest, so the suspect is, presumably, always going to be cuffed. As such, it seems like searching the box would be proper, assuming it's within reach of the suspect.