In recent decades, many state legislatures have enacted laws creating a preference for the issuance of citations or summonses or tickets for many misdemeanor offenses in lieu of custodial arrests. This approach reduces police processing time, frees up jail resources, and makes life a bit easier for a lot of minor criminals. Some state laws require a citation rather than an arrest of certain misdemeanants while others allow the officer discretion in choosing to issue a summons or make a custodial arrest.
A big question that has arisen from the development of these procedural laws is whether a police officer may conduct a warrantless search of the person incident to the issuance of a citation, especially where the crime involved is an arrestable offense. That is, may the officer conduct a search incident to citation where otherwise he could conduct a search incident to arrest? There is strong authority suggesting that in some instances, at least, such a search would be reasonable, notwithstanding a powerful mythology flowing from the U.S. Supreme Court decision in Knowles v. Iowa, 525 U.S. 113 (1998).
Knowles v. Iowa
Knowles is the only U.S. Supreme Court case that addresses the “search incident to citation” issue. In Knowles, a police officer issued a driver a citation for speeding and then conducted a search of the driver’s car incident to citation (without probable cause or consent) in which he located marijuana. The officer conducted this search under the purported authority of Iowa state law which had been interpreted by Iowa courts to allow searches of vehicles and persons incident to the issuance of a citation.
Knowles contended that such a search was unreasonable under the Fourth Amendment, regardless of what Iowa law authorized. The state of Iowa argued, among other things, that a search incident to citation is justified under the bright-line search incident to custodial arrest rule and they asked the U.S. Supreme Court to extend that bright line rule to citation situations. The Court unanimously refused to do so, which resulted in a widespread myth that the Court had rejected all search incident to citation.
It is extremely significant that Knowles involved the issuance of a citation for a traffic violation and not for a criminal offense. In discussing the rationale for the bright-line search incident to arrest rule, the Court referred to United States v. Robinson, 414 U.S. 218 (1973), which created the bright-line rule of search incident to arrest based on dual theories of need for officer protection from weapons and need to preserve evidence.
The Court then noted that a traffic offense situation is one where the concern for officer safety is not as significant as in a custodial arrest situation and the need to preserve evidence of the offense is usually non-existent. For these reasons, the Court refused to extend the bright-line search incident to arrest rule to cases involving only the issuance of a traffic citation.
Of equal importance, however, is what the Court did not say – that a warrantless search incident to the issuance of a citation is never reasonable. Knowles does not establish a “bright-line” bar to searches incident to citation – the Court simply refused to extend the Robinson “bright-line” search incident to arrest rule to citation situations.
Full warrantless searches of the person incident to a custodial arrest are, as a bright-line rule, reasonable under the Fourth Amendment. No additional justification for such the search, apart from the arrest itself, is required. In a citation situation, however, there must be an objective justification for the search that is reasonable in light of the facts and circumstances of the particular case because no bright-line rule exists to govern searches incident to the issuance of a citation.
So, may a police officer lawfully conduct a warrantless search of person incident to the issuance of a citation? The answer is that it appears to depend on the facts and circumstances present at the time of the search in question. Just as a reasonable belief that weapons are present can make a pat-down reasonable incident to the issuance of a citation, the preservation of evidence rationale may also exist in a citation situation. This need to preserve evidence of the offense for which the suspected offender is being cited would rarely exist in ordinary traffic cases. For other criminal offenses, though, it might.
In such situations, the officer must be able to point to specific facts and circumstances that would make it reasonable to believe that evidence of the offense could be located on the offender’s person. The nature of the offense itself may provide the justification – e.g. possession of illegal substances. In other cases, more articulation would be necessary – e.g. offenses involving fraud. In some non-traffic cases, it would be unlikely that a need to preserve evidence could be justified – e.g. disorderly conduct or trespassing.
Knowles by no means closed the door to future searches incident to the issuance of a summons. It only did so where the summons was issued for a traffic violation because, as a general rule, neither of the two Robinson rationales exist during a traffic violation situation.
The Court, in response to the request by the Respondent to extend Robinson’s bright-line rule, refused to do so in situations where “the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all.” In many cases involving the issuance of a summons for a criminal offense, it is entirely likely that a reasonable concern for preservation of relevant evidence would justify a search incident to issuance of such a summons.
Court Decisions Since Knowles
In United States v. McLaughlin, 170 F.3d 889 (9th Cir. 1999), this United States Court of Appeals states in its footnote 2: “The Knowles Court examined the historical rationales underlying search incident to arrest cases (officer safety and preservation of evidence) to provide guidance in ‘search incident to citation’ cases, holding that in ‘search incident to citation’ cases, an officer’s search must be justified by either officer safety or preservation of evidence.” The court here is obviously prepared to accept a “search incident to citation” should the officer be able to articulate a justification.
In Footnote 4 of United States v. Gould, 364 F.3d 578 (5th Cir. 2004), the United States Court of Appeals noted that Knowles does not establish a “bright-line” bar to searches incident to citation – the Court simply refused to extend the Robinson “bright-line” search incident to arrest rule to citation situations. The Gould court stated, “All Knowles says is that while [custodial] arrest alone may often be enough to give rise to meaningful concern for officer safety (or destruction of evidence), in the absence of [custodial] arrest there must be some other circumstances giving rise to reasonable suspicion of danger.
In Campbell v. Miller, 499 F.3d 711 (7th Cir. 2007), another federal Appeals Court said, “The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. We agree with Campbell that the police needed to have a reasonable suspicion that Campbell was concealing contraband in order to justify the search under the second rationale in Robinson… The problem for Campbell is the jury concluded the police had such suspicion.”
The petitioner attempts to rely on Knowles as controlling regarding a search incident to a summons he received for possession of marijuana. The court distinguished this case from Knowles: “To begin with, Campbell is not like the arrestee in Knowles, who was stopped for speeding and for whom the police already had all the evidence they needed for a prosecution. Campbell, in contrast, was arrested for narcotics possession, which is the kind of crime that might give rise to a reasonable belief that an arrestee was concealing an item…” The search conducted in Campbell was a partial strip search incident to a summons and the search was determined to be reasonable.
While these points occur in these courts’ dicta rather than their holdings, their consistent view of what Knowles does and doesn’t do is noteworthy. Another United States Court of Appeals goes the other way, though. In United States v. Bookhardt, 277 F.3d 558 (D.C. Cir. 2002), the Court stated: “In Knowles, the Court held that an officer may not conduct a search incident to arrest when, although the officer has probable cause to make an arrest, he issues a citation instead of arresting the defendant.
Knowles found that neither of the two historical justifications for the search incident to arrest exception – the need to disarm the subject in order to take him into custody and the need to preserve evidence for later use at trial – applies when a defendant is not actually arrested and taken into custody.” This court, however, takes substantial liberty with the explicit language of the Knowles opinion and is therefore of questionable importance.
It appears as though a “search incident to citation” for a criminal offense is reasonable if either the officer safety or the preservation of evidence rationale is present. A straightforward reading of Knowles supports this understanding. The widespread view that Knowles flatly prohibits all searches incident to citation appears to be a myth.
Also important to a broader understanding of such situations is the potential for a Terry frisk where there is articulable reasonable suspicion of the presence of a weapon that would constitute a threat to the officer, in which case the officer would be able to conduct a pat-down type search irrespective of the law of search incident to citation. Similarly, if there is probable cause to believe that evidence of crime is on the subject of the citation, the officer may conduct a warrantless probable cause search for that evidence under an exigent circumstances theory.
That is, if the officer leaves to get a warrant, the subject and the evidence are both likely to be gone when the officer gets back. And, of course, where state law gives the officer discretion to arrest, the officer may choose to make a custodial arrest and conduct an ordinary search incident to that arrest, rather than take on the ambiguities of a search incident to citation – or simply choose to issue a citation and not do a search incident to citation at all.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national alw enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at firstname.lastname@example.org
Zachary Miller is a Virginia police officer who teaches in-service law classes for his own agency and basic-training law classes for a regional police academy. Officer Miller also provides research assistance to author Randy Means, an attorney and 33-year police legal advisor who provides training and consulting services to law enforcement agencies nationwide.