Further, "the authority of contractor personnel to apprehend...individuals can be ascertained only by
examining the contract under which such personnel are performing. A particular individual contract
could be drafted to provide authority for contractors to take actions necessary to protect government
property under their control." (DAJA-AL 1979/3255.) Also, AR 190-56, paragraph 5-2(a), states that
"federally employed Army civilian police and security guards, performing law enforcement and security
duties authorized by the installation commander, may apprehend any person found on the installation
for offenses committed on post that are felonies, breaches of the peace, or otherwise a threat to
property or welfare."
c. Search incident to apprehension--What may be searched? "A person who has been lawfully
apprehended may be searched." (MRE 314(g) 1.) The basis for the search is the apprehension. In
Chimel v. U.S., 23 L.Ed.2d 685 (1969), the Supreme Court held: "When an arrest is made, it is
reasonable for the arresting officer to search the person arrested in order to remove any weapons that
the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety
might well be endangered and the arrest itself frustrated. In addition, it is entirely reasonable for the
arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its
concealment or destruction." Consequently, a person who has been apprehended is subject to a full
search of his person, regardless of the nature of the offense for which he was apprehended. Once the
suspect has been lawfully apprehended, "a search incident to the arrest requires no additional
justification. It is the fact of the lawful arrest which establishes the authority to search." Accordingly,
the police officer need not specifically fear that the subject is actually armed or in possession of
contraband. U.S. v. Robinson, 38 L. Ed.2d 427 (1973). There is, then, no requirement for an
independent basis, or separate justification for the search.
As a result, such a search is lawful even when it follows a person's arrest for a nonviolent traffic
offense; it "is the fact of custodial arrest which gives rise to the authority to search." Gustafson v.
Florida, 38 L.Ed.2d 427 (1973). Remember, however, that the underlying apprehension must be valid.
If the apprehension is unlawful, it will not support the following search. Nor will an illegal apprehension
be made valid by what is found during the illegal search.
Beyond a search of the person, the police may also search "for weapons or destructible evidence in
the area within the immediate control of a person who has been apprehended." This is the area "which
the individual searching could reasonably believe that the person apprehended could reach with a
sudden movement to obtain such property" (MRE 314(g) 2.) In Chimel, the Supreme Court held that
"the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of
course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can
be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There
is ample justification, therefore, for a search of the arrestee's person and the area within his immediate
control--construing the phrase to mean the area from which he might gain possession of a weapon or
destructible evidence." The Court added that this does not justify a search of an entire home, or rooms other than
those in which the person arrested is physically present.
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