‘Search Incident to an Arrest’ Versus ‘Arrest Incident to a Search’ and Why the Difference Can Be So Important to Your Criminal Defense in Maryland

This blog spends a lot of time talking about police searches. That’s no accident. A lot of arrests and criminal trials arise because the police stopped somebody, searched them, then found something on them that the state uses as the basis for a prosecution. One of the biggest keys to avoiding that conviction often is showing that the police had no right to stop you in the first place, which means none of the evidence they obtained in that search is usable against you. This essential attack is one of the many areas where having the right Maryland criminal defense lawyer on your side can make all the difference.

Take, for example, the criminal prosecution of D.S. in Prince George’s County. D.S., a Washington, D.C. man, was hanging around four other men and a dice game in Brentwood. Officers in marked vehicles approached. An officer asked the men if they had “anything illegal” on them. D.S. indicated that he had roughly one ounce of marijuana in his possession.

The officer then did a pat-down search. At that time, he found a gun in D.S.’s waistband. Based on that interaction, the state charged D.S. with several gun charges and also possession of marijuana.

The man’s argument was that the officer had no valid legal basis for doing the pat-down search, making the gun illegally-obtained evidence. The prosecution, on the other hand, argued that the police officer had two legitimate bases for conducting the search, which were: “search incident to an arrest” or the Terry exception to the warrant requirement.

The “Terry exception” is a carve-out from the general prohibition against warrantless searches established by the Fourth Amendment to the Constitution. The U.S. Supreme Court said, in the 1968 case of Terry v. Ohio, that the police do not need a warrant to do a quick surface search of a person as long as the police have reasonable suspicion that the subject has broken the law or is about to break the law, and reasonably believe the person is armed and dangerous. This surface search is called “stop and frisk” or a Terry frisk.

In D.S.’s case, the prosecution ultimately abandoned its arguments in support of the search as valid under the Terry exception. Instead, the state’s sole basis for the search’s validity hinged upon the search being a “search incident to an arrest.”

D.S. successfully shot down each of the state’s asserted bases for why the search qualified as “incident to an arrest.” The prosecution brought up illegal gambling, but lacked sufficient evidence, according to the court. The officer’s testimony — that he spotted five men huddled around some dice and a pile of cash — was adequate to give him reasonable suspicion that illegal gambling was taking place, but not that D.S. was engaged in illegal gambling. A person’s being close to illegal gambling is not per se proof that he was engaged in such illegal activity.

There was also the matter of the drugs, but that also didn’t justify the search as legal. The police officer had the legal authority to arrest D.S. for possession of marijuana; the question was… did he actually utilize that authority and make the arrest.

The Officer’s Initial Actions Were Not Consistent with an Arrest

The officer did not tell D.S. he was under arrest, he did not place D.S. in his police vehicle, and he did not handcuff D.S. right away. He merely put D.S. in a “control hold” and searched his person, whereupon he found the gun. It was at that point that the officer handcuffed D.S.

Based on that order of steps taken by the police officer, the search was a case of “an arrest incident to a search” which, unlike a search incident to an arrest, is not an exception to the Fourth Amendment’s warrant requirement. Therefore, the search was illegal and D.S. was entitled to suppression of the evidence.

What you can see from D.S.’s win here is that search-and-seizure law, which can often be the key to success in a criminal defense case — especial a drug case or weapons case, is filled with fine distinctions and numerous minute intricacies. The difference between your acquittal and a conviction may be having a legal representative with a thorough knowledge of that law versus not having that essential resource. To be sure your constitutional rights are fully protected and you have every chance possible for a successful outcome, get in touch with the skilled Maryland criminal defense attorneys at Anthony A. Fatemi, LLC. Contact us at 301-519-2801 or via our online form. The sooner you reach out, the sooner we can start going to work helping you.

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