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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training, bringing to the roadside chat from Knoxville, Tennessee. I got a question from an officer in Las Vegas, Nevada, Las Vegas Metro. So here's the question. Can you search a person for evidence if you have probable cause? Okay, so, you know, in other words, do you have to make the arrest? Right. Okay. Let's go through some a couple scenarios at the officer. I got my little laptop here that I'm reading from the car. Alright, so one is basically the officer had a consensual encounter with a suspect that he knows from the past prior arrests, you know, he's your neighborhood felon, get type deal, right? You know who he is. And the cop asked them hey, Johnny, you got meth on you. And this guy mitts? Yeah, I got meth on me. And so that can be a site and release type of situation. You don't have to arrest them, right? Otherwise, we don't have the problem. We can do a search incident to arrest the COP is asking, Can I retrieve that evidence? Without the arrest? And he's getting conflicting answers. But I have your answer. The answer is yes. The answer is yes. Under two, and under two rationales. Number one is exigency. You don't have time to go chase down a warrant, while this guy is standing on the street, even if he's in handcuffs, he can manipulate the evidence, he can, you know, if he has a, let's say, some kind of paraphernalia, he can, he can break it, he can land on it, you know, he can try to escape. The point is, you know, there's this exigency there, there's this, there's this urgency just to get the evidence off of his person to cure it, and then go from there. So there is usually exigency. And you know, the vast majority of courts have held the same. The other one is that the intrusion is less than what you could have done, which is arrest the guy. I mean, think about it. If it's an arrestable offense, it's it's a, it's a, it's a crime committed in your presence, you know, even if it's a misdemeanor, it's a crime being committed your presence, he is telling you that he has meth on his person. That is probable cause, right? I mean, why would he lie about that? So is there a fair probability he's telling the truth and add that also with his prior histories? And so, you know, how is he going to complain? When he goes to court and say, Your Honor, they should have retrieved that evidence. But isn't it true defendant that they could have also arrested you and did a full search incident to arrest including potentially a visual cavity search at jail if you're going to be put into general population? So the cop you're saying that the cops can do that, but they can't do a lesser intrusion? Which is just to retrieve the evidence cite you and have you go on your way? Is that what you're saying? Defendant? It doesn't. It's not reasonable, right? It's more reasonable just to do the lesser intrusion, and kick the guy loose. Okay, so and so now, the other scenario that the cop says, Okay, so there's the drug scenario, here's the nurse scenario. A person is detained by loss prevention. The loss prevention does not retrieve the evidence from the person, but they have him in custody, right. They're just basically doing a citizen's arrest. But they're not searching. So the cops show up, and they watch the, you know, security cam, and what did they see on a security cam, this guy stuffing stuff down his pants, you know, in his backpack, whatever. And now, can we retrieve that evidence without arresting him? Well, we know that this is not a misdemeanor coming your presence, by the way, you know, just because you watch a film of a past event is not come in your presence. Now, if you watch it live, that is committed your presence, I had that question the other day by a cop and I was a good one. So if you're watching a live and the guy stuffing stuff in his pants, whatever that is a committed in your presence, even though it's through the security cam. So here, again, we have an exigency argument. We don't have time to go run off and go get a warrant while this guy's you know, sitting in there and so forth. And it just it you know, and you have the CITIZENS ARREST, potentially, you know, so you have the other argument could be a lesser intrusion. But here's just good old fashioned agency. And also think about it, is it reasonable, right, is it does it does this all sound reasonable to you? Does that sound reasonable, you know, to just go retrieve the evidence, get back the evidence to you know, the store, and then cite and release him? The answer is yes. I have not seen a case where the evidence has been suppressed under these circumstances. Maybe it exists out there. But the vast majority of cases, you know, that I'm seeing on these issues are upholding the searches on various doctrines, primarily agency, and it's a lesser intrusion anyway than a full arrest. Alright, that's my feeling on it. I'm sure this is going to help a lot of cops because this question comes up a lot. And that's it. Alright.
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