I know there is a search incident to arrest exception to an individual's 4th amendment rights, but does one actually have to be in handcuff. What is the cops tell you to wait on the curb, no cuffs and then proceed to make warrantless searches.
A person does not have to be in handcuffs in order to be 'under arrest'. Whether or not a person is 'under arrest' is a factual analysis and takes into consideration what law enforcement had told the person, whether or not a reasaonable person would feel free to leave, and other factors. Determining if a person is legally 'under arrest' for search purposes is pretty complicated - if you have more questions you should retain a lawyer and explain the facts specifically to that lawyer. And understand there's a chance that law enforcements version of the fact may differ. If there are any witnesses be sure and save their names and contact information.
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The US Supreme Court held that when an officer is making a lawful custodial arrest, he may search the passenger compartment of a vehicle if 1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or 2) there is reasonable belief that evidence relevant to the crime of arrest might be found in the vehicle. If the officer was looking for evidence of a crime and had a reasonable belief it could be found in the vehicle, they the search was likely justified - even while your cuffs.
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You said "curb". Was it a pullover?
Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.
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