a frisk is to secure weapons that might
become used by the suspect during a face-
to-face encounter. Courts have been
reluctant to extend this intrusion, based on
something less than probable cause, to find
items that the suspect may only get to
through great difficulty. During a Terry stop,
law enforcement officers are entitled to take
measures designed to preserve their safety
that does not require unnecessary intrusions.
For instance, if the suspect is holding a
locked container, the law enforcement
officer would be justified in separating the
suspect from the container. The action
preserves the officer’s safety yet requires no
intrusion. If the suspect is standing near a
locked container, such as the trunk of an
automobile, the officer can reposition the
suspect. Of course, the officer may always
ask for the person’s consent to open the
container. When conducting a Terry frisk,
the officer should look for alternative ways
to protect him or herself against the contents
of a locked container but he or she may not
force open the container.
SEARCH INCIDENT TO ARREST
The Supreme Court has long held
that searching the persons of those that law
enforcement officers have arrested is
reasonable. This search also includes the
areas under their immediate control and is
designed to secure weapons, means of
escape and evidence. Chimel v. California,
395 U.S. 752 (1969). The scope of the
search is limited to those areas in which the
arrestee might gain possession of such
items. Does this allow the officer to search
the arrestee’s locked container, such as a
briefcase? While the Supreme Court has
never directly held that such a search is
reasonable, several circuit courts have
interpreted Supreme Court cases to reach
this conclusion.
In New York v. Belton, 453 U.S. 454
(1981), the Supreme Court set out the
parameters for a lawful search of an
automobile incident to arrest in which the
arrested person was found. The Court held
that the interior of the automobile, including
containers found therein, are within the
immediate control of the arrestee. Its
definition of a container “includes closed or
open glove compartments, consoles, or other
receptacles located anywhere within the
passenger compartment, as well as luggage,
boxes, bags, clothing, and the like.”
Several courts have interpreted this
definition to include locked containers, such
as luggage and glove boxes. In U.S. v.
Tavolacci, 895 F.2d 1423 (D.C. Cir. 1990)
the court applied the Belton rule in
permitting an officer to open a locked bag
that was in the immediate control of the
arrestee. The court in U.S. v. Gonzales, 71
F.3d 819 (11th Cir. 1996), stated that the
Belton rule allowed searches incident to
arrest to include glove boxes, locked or
unlocked. The 8th Circuit Court of Appeals,
in U.S. v. Valiant, 873 F.2d 205 (8th Cir.
1989) stated that “(t)he search occurred
incident to that arrest. Because the locked
briefcase was a closed container within that
vehicle, it lawfully could be searched.”
Using these cases as a basis for
interpretation, the courts appear to be
heading in the direction of allowing any
container found in the immediate control of
the arrestee to be searched. Whether the
arrestee could immediately reach the
container to obtain a weapon, a means of
escape, or destroy evidence, seems
immaterial.
INVENTORY
The Supreme Court has recognized
the need for law enforcement personnel to