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Orlando Criminal Defense Lawyer > Blog > Gun Weapon Crime > What Is the “Search Incident to Arrest” Exception?

What Is the “Search Incident to Arrest” Exception?


The basic rule under the Fourth Amendment to the United States Constitution is that a police officer cannot conduct a search of your property without first obtaining a warrant. As with most general rules, of course, there are a litany of exceptions. For instance, the Supreme Court has long held that an officer may conduct a warrantless “search incident to arrest” to ensure the defendant is not carrying any weapons that might endanger the officer’s life.

Florida Appeals Court Tosses Weapons Conviction Over Illegal Fanny Pack Search

The search incident to arrest exception is fairly narrow. It only permits the officer to search the person under arrest and any area within the suspect’s “immediate control.” Once there is no longer a possibility that the suspect can reach into a given area, the police can no longer rely on the exception to perform a warrantless search. They must either get a warrant or rely on another recognized exception.

The Florida Sixth District Court of Appeal recently overturned a firearms conviction based on an improper use of the search incident to arrest exception. In this case, Jean v. State, the Orange County sheriff’s office executed an arrest warrant for the defendant on aggravated battery charges. Deputies staked out the defendant’s home, waiting for him to return.

The defendant rode up to his house on a bicycle. He got off the bike and started walking to his garage. At this point, the defendant was carrying a backpack and a fanny pack. The deputies confronted the defendant, tackled him to the ground, and handcuffed him. The deputies then took the backpack and fanny pack from the defendant and placed it on the hood of a car in the driveway.

The fanny pack was locked. The deputies searched the defendant and found the key to the lock. A deputy then unlocked the fanny pack, revealing a firearm inside.

Due to his prior criminal record, prosecutors charged the defendant with being a convicted felon in possession of a firearm. Before the trial court, the defendant moved to suppress the gun, arguing it was the result of an illegal search of the fanny pack. The judge denied the motion. The defendant then pleaded “no contest” to the weapons charge but reserved the right to appeal the judge’s ruling on the motion to suppress.

On appeal, the Sixth District agreed with the defendant that the search was illegal and threw out his conviction. The appellate court noted the police had a warrant to arrest the defendant on an unrelated charge. They did not have a search warrant for his property. And since the fanny pack was no longer accessible to the defendant when the deputy unlocked it, the search incident to arrest exception no longer applied.

The trial judge tried to get around this by holding that the police had the right to search the fanny back because they believed it might contain evidence relevant to the subject of the defendant’s original arrest warrant. The Sixth District did not accept this reasoning. There is a limited exception that allows officers to search a suspect’s vehicle for such evidence. But in this case, the defendant was not in his car when the deputies arrested him, so that exception was inapplicable.

Contact Our Orlando Criminal Defense Attorneys Today

Challenging an illegal police search is just one of many ways you can potentially defend yourself against a serious criminal charge. An experienced Orlando gun and weapon crimes lawyer can review your case and advise you of your options. Contact the Joshi Law Firm, P.A., today to schedule a free initial consultation.



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