{"id":202157,"date":"2026-05-31T09:24:05","date_gmt":"2026-05-31T16:24:05","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=202157"},"modified":"2026-09-17T07:11:50","modified_gmt":"2026-09-17T14:11:50","slug":"search-incident-to-arrest-sita-in-florida","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=202157","title":{"rendered":"Search Incident to Arrest (SITA) in Florida"},"content":{"rendered":"

A \u201csearch of an item from which a defendant has been physically separated cannot<\/em> be upheld\u201d under the search-incident-to-arrest (SITA) exception.<\/h2>\n

Overview<\/strong><\/h2>\n

Warrantless \u201csearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.\u201d \u201cSearches conducted incident to the [lawful custodial] arrest of a person are one such exception.\u201d This search-incident-to-arrest (SITA) exception allows warrantless search only of \u201cthe arrestee’s person and the area within his immediate control, i.e., the area into which he may reach to acquire a weapon or destroy evidence.\u201d The scope of this exception is limited; once the arrestee \u201chas been physically separated\u201d from an item, search of it cannot<\/em> be upheld under SITA. Thus, \u201cin the case of a backpack<\/a> carried by an arrestee at the time of arrest, once police officers have reduced the backpack to their exclusive control and there is no longer any danger of the arrestee gaining access to [it], the search of the backpack can no<\/em> longer be justified\u201d as a SITA. Lastly, to instead justify searching an arrestee\u2019s backpack under the inventory (booking) exception, courts have required evidence that the search was done in accordance with the police agency\u2019s standard procedures.<\/p>\n

Introduction<\/strong><\/h2>\n

Chimel v. California<\/em> held that in making a lawful custodial arrest, police \u201cmay search the arrestee’s person and the area within his immediate control,\u201d meaning only \u201cthe area from within which he might gain possession of a weapon or destructible evidence.\u201d Courts have interpreted Gant v. Arizona<\/em> to limit this scope of SITAs, whereas \u201c[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search,\u201d this exception does not <\/em>justify warrantless search. SITAs are justified: \u201c(1) to protect the officer’s safety, and (2) to prevent destruction of evidence.\u201d Thus, \u201cwhere an arrestee has been secured by police officers and separated from the thing that the officers wish to search, neither of the[se] rationales . . . apply and, accordingly, a search of that thing cannot<\/em> be conducted as a search incident to arrest<\/a>.\u201d Although the automobile exception<\/a> may separately justify searches unique to the motor vehicle context, this Article summarizes court decisions turning on the validity of searching items possessed by an arrestee\u2019s incident to his arrest.<\/p>\n

Under Florida Statute<\/strong> 901.21, police making a lawful arrest:<\/p>\n

(1) \u201cmay search<\/strong> the person arrested and the area within [his] immediate presence [interpreted as under the arrestee\u2019s control<\/em>];\u201d and<\/p>\n

(2) \u201cmay seize<\/strong> all instruments, articles, or things discovered on the person arrested or within [his] immediate control.\u201d<\/p>\n

Rivera v. State<\/em> <\/strong>(Second District Court of Appeal 2024): Search of a Secured Arrestee\u2019s Lockbox and Zippered Bags Found in His Pockets Was Im<\/em>permissible<\/h3>\n

The defendant \u201cwas under arrest and had been handcuffed when his person was searched\u201d in a public location. In his pockets, a locked lockbox and a bag zippered were found and \u201cgiven to officers on scene to search; they were no longer in Rivera’s control or reach.\u201d The Court explained that \u201cthe lockbox and the bag would have been legally seized by the police. But seizure is not<\/em> the same as search.\u201d \u201cIf there is no<\/em> possibility that an arrestee could reach into the area that [police] seek to search, both justifications [officer protection and evidence preservation] for the search-incident-to-arrest exception are absent and the rule does not<\/em> apply.\u201d The Court emphasized that the search was not <\/em>justified by officer safety needs, as there was no<\/em> evidence that the defendant \u201cwas in possession of explosives.\u201d<\/p>\n

Ancrum v. State<\/em><\/strong> (Second DCA 2014): Search of a Jacket on the Floor of the Bedroom, Where the Defendant was Arrested, After he was Removed from the Bedroom was Im<\/em>permissible<\/h3>\n

Police were legally present in the home of the defendant\u2019s relative, arresting Mr. Ancrum on unrelated charges. \u201cMr. Ancrum’s jacket was located on the floor in the bedroom where Mr. Ancrum was arrested.\u201d During the arrest, Mr. Ancrum was pulled \u201cfrom his bed to the floor,\u201d then removed from the bedroom. \u201cWhere the officers removed Mr. Ancrum from the bedroom before the search,\u201d he was \u201cphysically separated from the jacket when it was searched.\u201d Thus, search of the jacket was an in<\/em>valid SITA, whereas \u201cthe search of an item from which a defendant has been physically separated cannot<\/em> be upheld as a search incident to [his] arrest.\u201d<\/p>\n

Harris v. State<\/em><\/strong> (Third DCA 2018): Search of a Dismounted Dirt Bike Driver\u2019s Backpack was In<\/em>valid Where he was Already Handcuffed and Feet Away from the Backpack<\/h3>\n

Police initiated a traffic stop of a dirt bike for reckless driving. Although the defendant attempted to drive away, he fell off the dirt bike and was subsequently handcuffed. Police removed a backpack from the arrestee\u2019s person and placed it on the police car hood, instructing him to sit on the grass about 5 feet away. While the arrestee told the officer to look for the dirt bike\u2019s ownership paperwork in the backpack\u2019s front pocket, he specifically stated not<\/em> to open its main compartment. Police searched the entirety of the backpack, finding narcotics and paraphernalia.<\/p>\n

The \u201cofficers had reduced Harris’s backpack to their exclusive control and [thus] Harris had no possibility of accessing the backpack. Having so secured the backpack, the police officers were not<\/em> entitled to search\u201d it as a SITA. The Court discussed: Even \u201c[a]ssuming a dirt bike qualifies as a vehicle\u201d for the automobile exception, the \u201cbackpack was not<\/em> a part of the dirt bike nor stored on or in it. Instead, the backpack was worn by\u201d the arrestee. Moreover, since the defendant was arrested for reckless driving, evidence of this crime would not<\/em> have been found in his backpack. Thus, neither<\/em> the automobile nor<\/em> SITA exceptions applied.<\/p>\n

Jean v. State<\/em> <\/strong>(Sixth DCA 2023): After an Arrestee Dismounted a Bicycle in his Driveway, Search of his Fanny Pack was In<\/em>valid Where It was Outside His Reach and he was Already Secured<\/h3>\n

Police waited nearby the defendant\u2019s home with an arrest warrant. The defendant arrived home on a bicycle and dismounted, wearing 2 bags, a backpack, and a locked fanny pack strapped to his chest. Police walked up to him as he stood in his driveway in front of his garage, behind another vehicle. Although police ordered him to stop and show his hands, the defendant began walking away into his garage, and officers followed, eventually handcuffing him behind his back. Officers removed his bags, and placed the fanny pack on the hood of the car that was in his driveway. At that time, the defendant was 8 to 10 feet away from the fanny pack, with multiple officers surrounding him. An officer \u201cmanipulated, squeezed, and felt the locked fanny pack with his hands,\u201d feeling what he perceived to be a firearm. Police searched Mr. Jean for the key, which was found and used to open the fanny pack, which indeed contained an illegally possessed firearm.<\/p>\n

\u201cThe search of Jean’s fanny pack occurred after [he] had already been totally secured and separated from [it] such that there was no longer any possibility that he could access it in order to obtain a weapon to harm the officers.\u201d Thus, the \u201csearch was not<\/em> permissible.\u201d The Court discussed: Even \u201c[a]ssuming Jean’s bicycle qualified as a vehicle [for the automobile exception], Jean’s fanny pack was not<\/em> at any point stored on or in the bicycle. Instead, the fanny pack was worn by Jean on his person after he dismounted;\u201d thus the automobile exception did not<\/em> apply. Finally, no <\/em>\u201clegitimate officer safety concerns\u201d justified the fanny pack search, as the arrestee was already secured.<\/p>\n

Wall v. State<\/em> <\/strong>(Fifth DCA 2022): Search of the Defendant (Per an Arrest Warrant)\u2019s Purse was In<\/em>valid Where It was Inside a Vehicle Outside her Reach at the Time of Arrest<\/h3>\n

The defendant was an occupant in a parked car approached by law enforcement to investigate possible fraud, following a call from a grocery store manager who suspected the\u00a0 other occupants had used a cloned credit card to purchase gift cards. After all occupants were detained and sitting on the curb, the defendant was discovered to have an active arrest warrant out of Texas. Police searched the defendant\u2019s purse that was inside the car, finding \u201cmultiple credit cards not belonging to any of the vehicle occupants.\u201d The Court explained: \u201cThe purse was not<\/em> within Wall’s reach at the time of her arrest because she was out of the car sitting on the curb while the purse was on the passenger seat of the vehicle. In fact, all passengers were out of the vehicle.\u201d Moreover, there was no <\/em>\u201cindication that there was probable cause that the purse contained evidence related to the Texas warrant for which [she] was arrested.\u201d Thus, \u201cunder Gant<\/em>, the search of the purse was im<\/em>proper.\u201d<\/p>\n

State<\/em><\/strong> v. Bultman<\/strong><\/em> (Second DCA 2015): Search of an Arrestee\u2019s Purse was Permissible Based on Genuine Safety Concerns, in Light of her Refusal to Separate Herself from the Purse<\/h3>\n

Described as \u201cthe only post-Gant<\/em>, non-automobile Florida case that differs in result, [Bultman<\/em>] is easily distinguishable\u201d from the other SITA cases discussed herein. The defendant consented to police entering her home \u201cto search for a suspect in an unrelated case.\u201d Police saw an aluminum foil \u201cboat\u201d caked with methamphetamine in her backyard. \u201cThe officers then asked . . . for her identification, which she indicated was in her purse located in her car.\u201d She \u201cretrieved her purse and handed the officers her identification. However, Bultman then attempted to hide her purse from the officers, and when they asked to search the purse, she refused. The officers repeatedly asked Bultman to place the purse on the hood of their police car for officer safety and twice had to remove it from her person. The officers arrested [her] for resisting their commands to leave the purse on the hood of the car and conducted a search of her purse incident to arrest.\u201d The search was upheld as a valid SITA.<\/p>\n

Harris v. State <\/em>subsequently reflected on Bultman<\/em>, distinguishing that \u201cit was the officers’ concern about a weapon and Bultman’s refusal to separate herself from the purse that led to the arrest in the first place. In contrast to an arrest on an unrelated event and a search of the purse, Bultman’s arrest was directly caused by her actions towards her purse.\u201d<\/p>\n

Florida Courts\u2019 Comments on Whether These Searches Would Instead Be Justified Under the Inventory (Booking) Exception<\/strong><\/h3>\n

While search of an arrestee\u2019s bags may appear, at first blush, to fall under an inventory (booking) search, courts have required evidence that an inventory search was performed in accordance with the agency\u2019s established policy. Courts have also considered evidence, or lack thereof, that the arrestee \u201cwould have chosen to take her purse to the jail upon her arrest rather than leave it\u201d elsewhere.<\/p>\n

Conclusion<\/strong><\/h2>\n

The search-incident-to-arrest (SITA) \u201cexception derives from interests in officer safety and evidence preservation that are typically implicated in [lawful custodial] arrest situations.\u201d A SITA \u201conly includes the arrestee’s person and the area within his immediate control, i.e., the area into which he may reach to acquire a weapon or destroy evidence.\u201d However, \u201conce an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence,\u201d these concerns no longer justify warrantless search under this exception. Courts have described that \u201cthe exceptions to the warrant requirement remain \u2018jealously and carefully drawn,\u2019 and there must be \u2018a showing . . . that the exigencies of the situation made that course imperative.\u2019\u201d Conversely, courts have applauded seizures of items in an arrestee\u2019s possession, based on probable cause that it \u201cholds contraband or evidence of a crime,\u201d in order to obtain a warrant, circumventing the need to \u201crebut the presumption that a warrantless search is unreasonable.\u201d<\/p>\n

References<\/strong><\/h2>\n
    \n
  1. Rivera v. State, 396 So.3d 861, 870-71 (Fla. 2nd DCA 2024) (quoting Ancrum v. State, 146 So.3d 1217, 1220 (Fla. 2d DCA 2014)).<\/li>\n
  2. Harris v. State, 238 So.3d 396, 399 (Fla. 3d DCA 2018) (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009); Katz v. United States, 389 U.S. 347, 357 (1967)).<\/li>\n
  3. Incident to a lawful custodial arrest, police \u201cmay search the arrestee’s person and the area within his immediate control,\u201d meaning \u201cthe area from within which he might gain possession of a weapon or destructible evidence.\u201d Id. <\/em>(quoting Chimel v. California, 395 U.S. 752, 763 (1969)).<\/li>\n
  4. Jean v. State, 369 So.3d 1235, 1239 (Fla. 6th DCA 2023) (quoting Smallwood v. State, 113 So.3d 724, 734 (Fla. 2013)).<\/li>\n
  5. \u201cThe search of an item from which a defendant has been physically separated cannot<\/em> be upheld\u201d as a SITA. Harris, 238 So.3d at 402 (citing Ancrum<\/em>, 146 So.3d 1217).<\/li>\n
  6. Jean<\/em>, 369 So.3d at 1239 (citing Harris<\/em>, 238 So.3d at 402).<\/li>\n
  7. Rivera<\/em>, 396 So.3d at 873 (\u201c[T]he State failed to present any evidence regarding inventory procedures\u201d to prove that search of bags found in the arrestee\u2019s pockets were justified under this exception).<\/li>\n
  8. Chimel v. California, 395 U.S. 752, 763 (1969); see also Harris<\/em>, 238 So.3d at 400.<\/li>\n
  9. In Gant<\/em>, \u201cthe Supreme Court specifically limited the scope of warrantless [SITA] . . . once an arrestee is physically separated from an item, . . . and thereby separated from any possible weapon or destructible evidence, . . . the dual rationales for this search exception no longer apply.\u201d Smallwood<\/em>, 113 So.3d at 734-35; see also Gant<\/em>, 556 U.S. 332.<\/li>\n
  10. Ancrum v. State, 146 So.3d 1217, 1220 (Fla. 2d DCA 2014) (Search of an arrestee\u2019s jacket was an in<\/em>valid SITA where he \u201cwas physically separated from the jacket when it was searched.\u201d).<\/li>\n
  11. Rivera<\/em>, 396 So.3d at 871; Jean<\/em>, 369 So.3d at 1239 (citing Smallwood<\/em>, 113 So.3d at 735; Gant<\/em>, 556 U.S. at 335).<\/li>\n
  12. \u201c[E]ven when Chimel<\/em> would not authorize a search incident to arrest of a vehicle, a search of the vehicle incident to the arrest will be upheld when\u201d there is probable cause \u201cto believe evidence relevant to the crime of arrest might be found in the vehicle.\u201d Harris<\/em>, 238 So.3d at 403 (quoting Gant<\/em>, 556 U.S. at 343).<\/li>\n
  13. A SITA \u201conly includes the arrestee’s person and the area within his immediate control<\/strong>, i.e., the area into which he may reach to acquire a weapon or destroy evidence.\u201d Smallwood<\/em>, 113 So.3d at 734; Jean<\/em>, 369 So.3d at 1239.<\/li>\n
  14. Fla. Stat. \u00a7 901.21.<\/li>\n
  15. Rivera v. State<\/strong>, 396 So.3d 861 (Fla. 2nd DCA 2024) (Search of a closed bag and locked lockbox found in the arrestee\u2019s pockets was not<\/em> justified as a SITA where he was already handcuffed and separated from the containers).<\/li>\n
  16. \u201c\u2018Different interests are implicated by a seizure than by a search\u2019 because of the less intrusive nature of a seizure<\/strong>.\u201d Id.<\/em> (quoting Hanifan v. State, 177 So.3d 277, 282 (Fla. 2d DCA 2015)) (\u201cThe courts have often approved warrantless seizures of property based on probable cause, for the time needed to obtain a warrant, in cases in which a warrantless search might have been impermissible but when the seizure was used \u2018to protect the evidence from destruction.\u2019\u201d).<\/li>\n
  17. Rivera<\/em>, 396 So.3d, at 873 n.10 (Regarding \u201cconcern about safety, it was not<\/em> objectively reasonable to believe a search of the items removed from [the arrestee\u2019s] person was necessary on the facts of this case.\u201d).<\/li>\n
  18. Ancrum v. State<\/strong>, 146 So.3d 1217 (Fla. 2d DCA 2014) (Search of an arrestee\u2019s jacket found on his bedroom floor, where he was arrested, was in<\/em>valid where he was \u201cphysically separated from the jacket when it was searched.\u201d).<\/li>\n
  19. Harris<\/strong> v. State<\/strong>, 238 So.3d 396 (Fla. 3rd DCA 2018) (Search of a dismounted dirt bike driver\u2019s backpack was an in<\/em>valid SITA where it was \u201cnot<\/em> in the area within his immediate control at the time of the search.\u201d).<\/li>\n
  20. Jean v. State<\/strong>, 369 So.3d 1235 (Fla. 6th DCA 2023) (\u201cThe search of Jean’s fanny pack occurred after [he] had already been totally secured and separated from the fanny pack such that there was no<\/em> longer any possibility that he could access it . . . such a search was not<\/em> permissible.\u201d).<\/li>\n
  21. Wall v. State<\/strong>, 333 So.3d 348 (Fla. 5th DCA 2022) (Search of the defendant\u2019s purse, who was arrested pursuant to an arrest warrant, was an in<\/em>valid SITA where her \u201cpurse remained in the vehicle, out of [her] reach and out of the reach of the co-defendants [other occupants who were detained on the curb].\u201d).<\/li>\n
  22. State<\/strong> v. Bultman<\/strong>, 164 So.3d 144 (Fla. 2d DCA 2015) (\u201cBecause Bultman had the purse on her person at the time of her arrest for resisting an officer, . . . the officers could lawfully conduct a search of the purse incident to arrest.\u201d).<\/li>\n
  23. Harris<\/em>, 238 So.3d at 402 (describing Bultman<\/em> as \u201cthe only post-Gant<\/em>, non-automobile Florida case that differs in result [and] is easily distinguishable\u201d where \u201cit was the officers’ concern about a weapon and Bultman’s refusal to separate herself from the purse that led to the arrest in the first place.\u201d).<\/li>\n
  24. Evidence of the methamphetamine boat was suppressed, \u201cfinding the search of the yard to be without consent.\u201d As the Court the defendant was lawfully detained, the drugs in her purse were admissible. Bultman<\/em>, 164 So.3d at 146.<\/li>\n
  25. \u201cAn inventory search<\/strong> serves the needs of protection of the owner’s property, protection of police against claims lost or stolen property, and protection of police against potential danger from such things as explosives.\u201d Wall<\/em>, 333 So.3d at 351 (quoting Rodriguez v. State, 702 So. 2d 259, 262 (Fla. 3d DCA 1997)).<\/li>\n
  26. Rivera<\/em>, at 873 n.9 (\u201c[T]he State failed to present any evidence regarding inventory procedures\u201d to justify search of an arrestee\u2019s bags found inside his pockets.) (citing Ross v. State, 319 So. 3d 807, 812 (Fla. 2d DCA 2021); Wall<\/em>, 333 So.3d at 352) (\u201cWithout evidence of such policies to determine whether law enforcement complied with [established governing standard] procedures, the trial court could not<\/em> properly determine that the inventory search was valid.\u201d).<\/li>\n
  27. Wall<\/em>, 333 So.3d at 352 (declining to admit evidence found in an arrestee\u2019s purse under the inevitable discovery rule, based on a purported inevitable inventory search, as it was \u201cmerely speculat[ion] that the purse would have gone with [her] to jail and that the officers at the jail would search her belongings.\u201d).<\/li>\n
  28. Jean v. Florida, 369 So.3d 1235, 1239 (Fla. 6th DCA 2023) (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)).<\/li>\n
  29. \u201cThis limitation \u2018ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.\u2019\u201d Id.<\/em> (quoting Smallwood<\/em>, 113 So. 3d at 734; Gant<\/em>, 556 U.S. at 339).<\/li>\n
  30. Harris v. State, 238 So. 3d 396, 402 (Fla. 3d DCA 2018).<\/li>\n
  31. Smallwood<\/em>, 113 So.3d at 729, 740 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)).<\/li>\n
  32. Hanifan<\/em>, 177 So.3d at 281-282 (concurring op.) (\u201c[T]he officers’ decision to obtain a search warrant<\/strong> . . . was eminently proper, and the ensuing search [of the seized item] was unquestionably legal.\u201d).<\/li>\n
  33. Id.<\/em> (\u201ccommend[ing] the officers<\/strong> . . . who acted with considerable restraint<\/strong> . . . for not actually searching [the arrestee\u2019s] iPhone immediately upon its seizure.\u201d). Although Hanifan <\/em>pertained to a cell phone, so did the FL Supreme Court case, Smallwood<\/em>. Yet, Smallwood<\/em>\u2019s holding, that \u201conce an arrestee is physically separated from an item . . . found on [his] person at the time of arrest, the arrest provides no justification\u201d to search it, informed the decisions discussed herein.<\/li>\n<\/ol>\n

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