6.6: Taking a “Second Look” at Prisoners’ Property

“[T]he items in question have been exposed to police view under unobjectionable circumstances, so that no reasonable expectation of privacy is breached by an officer’s taking a second look . . . ” - U.S. v. Grill 1

When an arrestee is booked into jail, officers or jail staff will routinely examine and inventory most or all of his personal property. If they happen to find evidence in the process, it will ordinarily be given to investigators or stored in an evidence room.2 The rest will be kept in a property room for safekeeping. It might sit there for days, often months or longer.

At some point, investigators might want to take a second look at it. In many cases, they will be looking for something specific, whether it pertains to the crime for which the prisoner was arrested or some other crime. Oftentimes they just want to see if there is anything with evidentiary value that was overlooked when the prisoner was booked. In either case, the question arises: Is a warrant required?

At first glance, it might seem that a warrant would never be necessary because the property is in the lawful possession of a law enforcement agency or detention facility. Thus, the prisoner cannot reasonably expect his property is protected. This may, in fact, be the view of the United States Supreme Court which made the following observation in

U.S. v. Edwards:

[I]t is difficult to perceive what is unreasonable about the police’s examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.3

While this language seems to indicate that a warrant will never be required, elsewhere in Edwards the Court indicated that a warrant might be required in some situations, although it did not elaborate.4

So, what’s the law? As we will now explain, an analysis of Edwards and other cases leads to the conclusion that a warrant is not required to search an item if there is probable cause to believe it is evidence of a crime. If probable cause does not exist, a warrant is unnecessary if, (1) the item was “subject to search” during booking, and (2) the search was conducted in a reasonable manner.

IF PROBABLE CAUSE EXISTS

If officers have probable cause to believe that an item taken from a prisoner for safekeeping is evidence of a crime, they may seize it without a warrant. This is essentially because a prisoner does not enjoy a reasonable expectation of privacy as to seizable evidence of a crime that is in the lawful possession of a law enforcement agency.

The controlling case on this issue is Edwards 5 which resulted from the defendant’s arrest late one night as he was attempting to break into a post office in Ohio. When Edwards was booked, he was allowed to keep his clothing. Meanwhile, officers at the post office determined that the burglar had unfastened a window with a pry bar and, in the process, left “paint chips on the window sill and wire mesh screen.” Figuring that some of the chips would probably have stuck to the perpetrator’s clothing, they gave Edwards some jail garb and sent his clothes to the lab for analysis. As expected, the lab found bits of paint that matched the paint at the post office.

The Ohio Court of Appeals ruled the seizure of Edwards’ clothing was unlawful because it occurred after he had been booked. The Ohio Court of Appeals ruled the seizure of Edwards’ clothing was unlawful because it occurred without a warrant after the booking process had been completed. The United States Supreme Court disagreed, ruling the search was lawful regardless of when it occurred because the officers had probable cause. Said the Court:

It must be remembered that . . . the police had lawful custody of Edwards and necessarily of the clothing he wore. When it became apparent that the articles of clothing were evidence of the crime for which Edwards was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered.

Similarly, in U.S. v. Oaxaca 6 two men were arrested shortly after they robbed a bank in the City of Commerce. When booked into the Los Angeles County Jail, they were allowed to keep their shoes. About six weeks later, investigators took the shoes from them without a warrant in order to compare them with the perpetrators’ shoes as shown in a surveillance video. They matched.

On appeal, the defendants argued the shoes should have been suppressed because the investigators did not have a warrant. The Ninth Circuit disagreed, saying:

Both the defendants and their shoes remained in lawful custody until the time when the shoes were taken for use as evidence. To require a warrant under these circumstances would be to require a useless and meaningless formality.

IF NO PROBABLE CAUSE

If investigators lack probable cause to conduct a warrantless search of a prisoner’s stored property, they may search it nevertheless if both of the following requirements are met: (1) they searched only those items that were actually searched or “subject to search” during booking or arrest; and (2) the search was conducted in a reasonable manner.

THE “SUBJECT TO SEARCH” TEST

Under the “subject to search” test, a warrant is not required to take a second look at items that were actually observed during a search incident to arrest or during booking, or items that could have been lawfully observed at either time.7 As the U.S. Supreme Court observed in Edwards:

[M]ost cases in the courts of appeals . . . have long since concluded that once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.8

Three things should be noted about the “subject to search” test. First, a second look is permitted even though there was no “first look,” so long as officers could have taken a first look when the suspect was booked or arrested.9 Second, because officers can lawfully look at virtually everything in an arrestee’s possession,10 the “subject to search” requirement is seldom an obstacle.11

Third, the “subject to search” test is actually more protective of the prisoners’ privacy than a rule permitting a second look only if officers did, in fact, see the item during booking or arrest. This is because such a rule would give the arresting officers and jail staff a perverse incentive to open every container and search everything they find to make sure that all of the prisoner’s property would be subject to a second look. As the Ninth Circuit noted in U.S. v. Burnette.

It is likely that, were we to require warrants for subsequent searches, police officers would routinely remove all items from containers seized at the time of the initial search and thereby insure that all items were discovered at that time. Thus, requiring a warrant for subsequent searches would be unlikely to provide any additional protection for individual privacy.12

Because the courts employ a “subject to search” test, the following items are subject to a second look without a warrant.

PROPERTY NOT INSIDE A CONTAINER

Articles that were not inside a container may be inspected because they were not only “subject to search,” they were actually seen— at least briefly—when they were seized, inventoried, or stored; e.g., clothing, rings, watches, keys.13 As the United States Supreme Court observed, “The seizure of an item whose identity is already known occasions no further invasion of privacy.”14

PROPERTY INSIDE A CONTAINER

Items that were inside a container may be searched if, (1) officers actually opened the container during booking or arrest and saw the contents, or (2) the contents of the container were subject to search when the prisoner was booked.15 As a practical matter, all property inside a container is subject to a second look because, as the United States Supreme Court observed, “[I]t is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.”16

MANNER OF SEARCHING

As noted, a “second look” search must be conducted in a reasonable manner. In determining whether such a search was reasonable, the courts look at, (1) whether the property was searched more than once and, if so, whether there was a good reason for conducting multiple searches; and (2) whether officers damaged or destroyed property in conducting the search.17

EXAMPLES

The following are examples of situations in which the courts ruled that a warrant was not required to take a second look at a prisoner’s property:

ROBBER’S RING: After the defendant was arrested for robbing a cab driver, investigators learned from the victim that the perpetrator was wearing a certain kind of ring. A booking inventory showed that the defendant was wearing a ring when he was arrested. Investigators retrieved the ring from property and showed it to the victim, who identified it. The ring, said the court, “did not have, nor can it acquire after booking, a vestige of privacy requiring a search warrant.”18

ROBBER’S RING: A Sacramento bank teller noticed that the man who was robbing her was wearing a “gold nugget ring.” When Davis was arrested for the robbery a few days later, he had two rings in his possession. During booking, the rings were put in a nylon bag. When an FBI agent learned that the teller had noticed that the robber was wearing a gold ring, he asked a police detective to see if there were any rings in Davis’s property. Checking the inventory sheet, the detective saw that the bag contained two rings, so he opened it and seized the rings—one of which was identified by the teller. The court ruled the warrantless seizure was lawful because the detective “did not conduct a search but merely retrieved items, lawfully obtained, that law enforcement knew were in its possession.”19

RAPIST’S SHOES: After Cheatham was arrested for rape, his clothes and shoes were “inventoried and stored in the jail’s property room.” Cheatham was also a suspect in another rape case in which the perpetrator left shoe prints at the scene. When investigators learned Cheatham was in custody, they obtained the shoes from the property room without a warrant, examined the tread, and determined they matched. In rejecting Cheatham’s argument that the shoes should have been suppressed because the officer did not obtain a warrant, the Washington Supreme Court said, “[O]nce an inmate’s personal effects have been exposed to police view in a lawful inventory search and stored in the continuous custody of the police, the inmate no longer has a legitimate expectation of privacy in the items free of further government intrusion.”20

KEYS: Thompson was arrested in Texas on drug charges. During booking, officers seized some keys, among other things. Several days later, an FBI agent went to the jail and arrested Thompson for stealing dynamite. The agent was aware that some keys had been booked into property, so he inspected them and, as the result, determined they opened a storage unit in which the dynamite had been found. The court ruled the agent did not need a warrant to inspect the keys, noting, “[The FBI agent was] not searching personal effects based on mere hunches that something of evidentiary value might be found. The police officer who had arrested Thompson had already informed the federal agent about the keys. The agent’s particularized search for the keys did not require a warrant.”21

KEYS: Two Symbionese Liberation Army members, Little and Remiro were arrested by Concord police for the murder of Oakland Schools Superintendent Marcus Foster. During booking, officers removed a set of keys from each of them. Later that day, the keys were turned over to an Oakland police officer who determined they opened the locks on some buildings connected to the SLA. In ruling the keys were seized lawfully, the Court of Appeal noted that an arrestee’s personal effects “like his person itself, are subject to reasonable inspection, examination, and test.”22

BAIT MONEY: After arresting Westover, detectives in Kansas City searched him and found $621 which was later put into an envelope and stored in the police property room. Because Westover was also a suspect in two Sacramento bank robberies, officers later examined the money without a warrant and determined that some of the bills had been taken in the Sacramento holdup. In ruling a warrant was not required, the Ninth Circuit observed, “In taking the money, no one would suggest that at that instant a search warrant would be required to list the numbers on the bills. Thus, a search warrant to again look at the money already in police custody does not make sense.”23

ROBBER’S CLOTHES: Earls was arrested on an unspecified Vehicle Code violation and booked into jail. During booking, his clothing “was confiscated.” Several days later, FBI agents determined that Earls was a suspect in a Sacramento bank robbery. An agent obtained Earls’ clothing and sent it to the FBI lab for analysis. The lab found fibers that linked Earls to the robbery. Court: “During their period of police custody an arrested person’s personal effects, like the person itself, are subject to reasonable inspection, examination, and test.”24

MURDERER’S RING: LAPD detectives had probable cause to arrest Phillip Gunn for murder. When they learned that a man named Phillip Gunn was in jail on a cocaine possession charge they went there to see if the prisoner was the Gunn they were looking for. Gunn’s property had been stored in a transparent plastic bag. Inside the bag, they could see a ring which they apparently realized was similar to the ring worn by the murder victim. Before confirming that the prisoner was the murder suspect, they opened the bag and seized the ring. Later, they showed it to the victim’s wife who positively identified it. Said the court: “What the homicide investigators did in this case cannot be classified as either a search or a seizure within the meaning of the Fourth Amendment. The ring was lawfully in the custody of the police. Its storage in the plastic property bag was purely for convenience and safekeeping. No expectation of privacy was involved. The ring was no more in a place of privacy than if the booking officer had left it on the counter of the booking desk.”25

ADDRESS BOOK: A Scottsdale police officer arrested Holzman for using a stolen credit card in a department store. During a search incident to the arrest, the officer found an address book. He opened the book and noted it contained “a bunch of names and numbers,” but he did not read any of the entries. The address book was subsequently placed with Holzman’s other property in the jail property room. As the investigation continued, the officer developed probable cause to believe that Holzman was involved in widespread credit card scam. Consequently, he went back to the jail and took a closer look at the entries in the address book and discovered incriminating evidence. Said the court, “[T]he arresting officer legitimately examined the address book during the valid arrest of Holzman, and determined that it contained ‘a bunch of names and numbers.’ At that point appellant’s expectation of privacy in the contents of the book was significantly diminished.”26

References

1. (5th Cir. 1973) 484 F.2d 990, 991
2. See United States v. Edwards (1974) 415 U.S. 800, 804-5 [“The police were also entitled to take from Edwards any evidence of the crime in his immediate possession, including his clothing.”].
3. (1974) 415 U.S. 800, 806.
4. See United States v. Edwards (1974) 415 U.S. 800, 808 [“In upholding this search and seizure, we do not conclude that the Warrant Clause of the Fourth Amendment is never applicable to post arrest seizures of the effects of the arrestee.”].
5. (1974) 415 U.S. 800.
6. (9th Cir. 1978) 569 F.2d 518. ALSO SEE Jackson v. State (Del. Supreme 1994) 643 A.2d 1360, 1364-5 [“When the evidentiary value of the sneakers was realized, they were properly seized as evidence.”].
7. See United States v. Edwards (1974) 415 U.S. 800, 807 [“Caruso [U.S. v. Caruso (2nd Cir. 1966) 358 F.2d 184] is typical of most cases in the courts of appeals that have long since concluded that once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant . . . ” Emphasis added. Citations omitted.]; Illinois v. Andreas (1983) 463 U.S. 765, 771 [“[O]nce police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost . . . ” Emphasis added.]; U.S. v. Grill (5th Cir. 1973) 484 F.2d 990, 991 [“[T]he items in question have been exposed to police view under unobjectionable circumstances, so that no reasonable expectation of privacy is breached by an officer’s taking a second look . . . ”]; U.S. v. Johnson (9th Cir. 1987) 820 F.2d 1065, 1072 [“Even though the officer did not in fact at first record the serial numbers of the bills, he could have done so legitimately without a warrant. Accordingly, we find that appellant’s expectation of privacy was significantly reduced, and that the information obtained during the second search was admissible.”]; U.S. v. Burnette (9th Cir. 1983) 698 F.2d 1038, 1049 [“The contents of the purse had been fully exposed to the police and, consequently, her expectation of privacy in the purse was necessarily reduced by a significant degree. . . . [so that] the subsequent warrantless search at the police station was valid.”]; Lockhart v. McCotter (5th Cir. 1986) 782 F.2d 1275, 1280 [“The police had earlier, at the time of inventory, lawfully viewed the wallet contained in Lockhart’s envelope. Because of this earlier police inspection of his personal property, Lockhart had only a diminished expectation of privacy with respect to the items contained in the envelope. By taking a ‘second look’ at the wallet without first obtaining a search warrant, the police did not unduly intrude upon whatever remaining expectation of privacy Lockhart had.”]; State v. Williams (Kan. 1991) 807 P.2d 1292, 1315 [“[The issue is] whether the law enforcement officers can go through the personal possessions of the accused that were being held for safekeeping and seize evidence without a warrant under circumstances in which the officers could have and should have examined the item seized when the defendant was first booked into jail.”]. NOTE: There is language in Edwards indicating a warrantless search is permitted regardless of whether there was probable cause. The Court noted that the prisoner’s clothes could have been searched without a warrant after booking, “particularly in view of [not because of] the existence of probable cause linking the clothes to the crime.” At p. 806. Emphasis added.
8. (1974) 415 U.S. 800, 807. Emphasis added. Citations omitted.]. NOTE: Elsewhere in Edwards, the Court applied the “subject to search” principle when it noted, “Edwards was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention.” At p. 805. Emphasis added.
9. See State v. William (Kan. Supreme 1991) 807 P.2d 1292, 1318 [although there was no “first look” of documents, a “second look” was permitted because they could have been read when they were booked into a property locker].
10. See Illinois v. Lafayette (1983) 462 U.S. 640, 648 [“[I]t is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.”] People v. Panfili (1983) 145 Cal.App.3d 387, 393 [“Police have not merely a right but an affirmative duty, statutorily defined, to safeguard the property of a prisoner.” Citing Penal Code § 1412.].
11. NOTE: Defense attorneys sometimes cite two cases which they contend prohibit a warrantless second look unless officers took a first look. One of the cases, U.S. v. Brett (5th Cir. 1969) 412 F.2d 401, 405-6 can be disposed of quickly—it is a pre-Edwards case that is contrary to Edwards. The other case is People v. Smith (1980) 103 Cal.App.3d 840. Although Smith is still occasionally cited by defendants, we are not aware of any case in which it was followed. There are two good reasons for this. First, the court did not engage in any meaningful analysis of the central issue; i.e., whether prisoners enjoy a reasonable expectation of privacy as to items that have been taken from them and stored in a property room for safekeeping. Second, if Smith were the law, officers could comply with it by simply making it a practice to conduct highly intensive booking searches of all property—looking at everything. This would not only result in a waste of police resources, it would, as noted, result in less privacy for the prisoners. Consequently, Smith is usually either distinguished or ignored. See People v. Bradley (1981) 115 Cal.App.3d 744, 751; People v. Davis (2000) 84 Cal.App.4th 390, 394 [“Smith does not stand for the broad proposition that jail inmates retain a Fourth Amendment privacy interest in property seized upon arrest and stored in the jail property room. On the contrary, [Smith] was based on the fact that the officers searched through a purse and wallet in the defendant’s mother’s property for items which had not previously been noted or whose evidentiary value had not previously been appreciated.”]; People v. Superior Court (Gunn)(1981) 112 Cal.App.3d 970, 978, fn.2 [court notes that Smith was inconsistent with Edwards]; People v. Panfili (1983) 145 Cal.App.3d 387, 383 [unlike Smith, officers isolated the defendant’s property—they did not complete the booking process].
12. (9th Cir. 1983) 698 F.2d 1038, 1049, fn.25.
13. See United States v. Edwards (1974) 415 U.S. 800, 806 [clothing]; People v. Davis (2000) 84 Cal.App.4th 390 [ring]; People v. Bradley (1981) 115 Cal.App.3d 744, 750-1 [ring]; People v. Remiro (1979) 89 Cal.App.3d 809, 835 [keys]; People v. Superior Court (Gunn) (1980) 112 Cal.App.3d 970, 977-8 [ring]; U.S. v. Thompson (5th Cir. 1988) 837 F.2d 673, 675-6; U.S. v. Oaxaca (9th Cir. 1978) 569 F.2d 518, 524 [“Both the defendants and their shoes remained in lawful custody until the time when the shoes were taken for use as evidence. To require a warrant under these circumstances would be to require a useless and meaningless formality.”]; U.S. v. Caruso (2nd Cir. 1966) 358 F.2d 184; U.S. v. Turner (9th Cir. 1994) 28 F.3d 981, 983 [“We have held that if an initial seizure of clothing of the defendant is incident to a lawful arrest and therefore proper, once the clothes were properly in the custody of the sheriff’s office, the clothing could be removed or transferred without benefit of official process.”]; U.S. v. Bomengo (5th Cir. 1978) 580 F.2d 173, 175 [“In United States v. Blanton (5 Cir. 1973, 479 F.2d 327) and recently in United States v. McDaniel (5 Cir. 1978) 574 F.2d 1224, 1226, we rejected the argument that for Fourth Amendment purposes a governmental view subsequent to a private search constituted a ‘new search.’”]; United States v. Burnette (9th Cir. 1983) 698 F.2d 1038, 1049 [“[O]nce an item in an individual’s possession has been lawfully seized and searched, subsequent searches of that item, so long as it remains in the legitimate uninterrupted possession of the police, may be conducted without a warrant. . . . ¶ Requiring police to procure a warrant for subsequent searches of an item already lawfully searched would in no way provide additional protection for an individual’s legitimate privacy interests. The contents of an item previously searched are simply no longer private.”]; Hell’s Angels Motorcycle Corp. v. McKinley (9th Cir. 2004) 360 F.3d 930, 933 [“[P]ersonal items seized and examined by police during searches incident to a lawful arrest are not protected from further warrantless searches by police.” Emphasis added.]. ALSO SEE Arizona v. Hicks (1987) 480 U.S. 321, 325 [“Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent’s privacy interest.”].
14. Minnesota v. Dickerson (1993) 508 U.S. 366, 377.
15. See United States v. Edwards (1974) 415 U.S. 800, 807; Illinois v. Andreas (1983) 463 U.S. 765, 771 [“It is obvious that the privacy interest in the contents of a container diminishes with respect to a container that law enforcement authorities have already lawfully opened and found to contain illicit drugs.”]; United States v. Burnette (9th Cir. 1983) 698 F.2d 1038, 1049 [“The contents of an item previously searched are simply no longer private.”]. ALSO SEE the cases cited in section entitled “If no probable cause,” supra.
16. Illinois v. Lafayette (1983) 462 U.S. 640, 648. ALSO SEE People v. Panfili (1983) 145 Cal.App.3d 387, 393 [“Police have not merely a right but an affirmative duty, statutorily defined, to safeguard the property of a prisoner.” Citing Penal Code § 1412.]; People v. Bradley (1981) 115 Cal.App.3d 744, 751 [“Whatever segregation the police make as a matter of internal police administration of articles taken from a prisoner at the time of his arrest and booking does not derogate the fact of their continued custody and possession of such articles.”].
17. See United States v. Edwards (1974) 415 U.S. 800, 808, fn.9 [Court notes that a second look searches might be deemed unreasonable “because of their number or their manner of perpetration.”].
18. People v. Bradley (1981) 115 Cal.App.3d 744, 751. ALSO SEE People v. Rivard (Mich.App. 1975) 230 N.W.2d 6, 8 [“Once the ring had been exposed to police view under unobjectionable circumstances and lawfully taken by the police for safekeeping, any expectation of privacy with respect to that item had at least partially dissipated so that no reasonable expectation of privacy was breached by Detective Van Alstine taking a ‘second look.’”].
19. People v. Davis (2000) 84 Cal.App.4th 390, 394-5.
20. State v. Cheatham (Wash. 2003) 81 P.3d 830, 836. ALSO SEE State v. Jellison (Mont. Supreme 1989) 769 P.2d 711 [robbery suspect’s shoes that were booked into property were taken to robbery scene and compared with a shoe print on the counter].
21. U.S. v. Thompson (5th Cir. 1988) 837 F.2d 673. ALSO SEE U.S. v. Grill (5th Cir. 1973) 484 F.2d 990.
22. People v. Remiro (1979) 89 Cal.App.3d 809, 835 [quoting from People v. Rogers (1966) 241 Cal.App.2d 384, 389-90.
23. U.S. v. Westover (9th Cir. 1968) 394 F.2d 164, 165. ALSO SEE U.S. v. Jenkins (2nd Cir. 1974) 496 F.2d 57, 73 [“[O]nce the money had been lawfully taken by the police for safekeeping Wilcox no longer could reasonably expect any privacy with respect to the serial numbers.”]; U.S. v. Johnson (9th Cir. 1987) 820 F.2d 1065, 1072 [bait money]; U.S. v. Burnette (9th Cir. 1983) 698 F.2d 1038, 1049 [bait money]; Evalt v. U.S. (9th Cir. 1967) 382 F.2d 424, 427 [bait money]; People v. Panfili (1983) 145 Cal.App.3d 387, 393-4 [bait money].
24. People v. Earls (1980) 109 Cal.App.3d 1009, 1012.
25. People v. Superior Court (Gunn)(1981) 112 Cal.App.3d 970, 977. ALSO SEE People v. Richards (Ill. Supreme 1983) 445 N.E.2d 319 [officers lawfully seized necklace, having probable cause to believe the defendant had taken it in a burglary].
26. U.S. v. Holzman (9th Cir. 1989) 871 F.2d 1496. ALSO SEE State v. William (Kan. 1991) 807 P.2d 1292, 425-6 [officers lawfully seized and read a document taken from the defendant and placed in storage even though the document was not read when the defendant was booked].

Contributors and Attributions

• Larry Alvarez (Faculty of Administration of Justice Instructor and Administration of Justice at College of the Canyons)