Remember, if an apprehension takes place "at a location in which other persons reasonably might
be present who might interfere with the apprehension or endanger those apprehending, a reasonable
examination may be made of the general area in which such other persons might be located." (MRE
314(g) 3.) Remember also, however, "that mere presence at the scene of a crime does not give
probable cause for an apprehension...Guilt may not be established by mere association...more than
mere suspicion is needed for an arrest and search." U.S. v. Pope, 3 MJ 1037 (AFCMR, 1977). The
police cannot apprehend mere bystanders. U.S. v. Pope, 3 MJ 1056 (AFCMR, 1977). Stated
differently, "mere presence of a person on premises which law enforcement officers have reason to
believe are being used for criminal activity does not, in itself, constitute probable cause for an
immediate arrest...Other factors must reasonably establish that such a person manifested sufficient
participation in the criminal activities." U.S. v. Escobedo, 11 MJ 51 (CMA, 1981).
Where, then, do you draw the line between "mere presence" and probable cause? In U.S. v.
Walker, 13 MJ 982 (ACMR, 1982), CID agents obtained an authorization to search government
On the table were approximately 10 pieces of hashish, a knife, a scale, aluminum foil, and a pair of
scissors. The court concluded that the hashish was being cut and packaged. The accused's mere
presence, of course, would not have been enough to constitute probable cause for his apprehension.
Here, however, there was more. The agents had probable cause to believe that the offense of
possession of hashish occurred (and was, in fact, still occurring), "and that each of the three individuals
grouped around the table had committed it." The search incident to apprehension must be connected to
the apprehension. Where both occur contemporaneously (at the same time), the justification for the
search is clear. The justification diminishes, however, as the search becomes remote in time or place;
i.e., as it becomes separated from the apprehension. Chimel v. U.S., 23 L.E.2d 685 (1969). The
Supreme Court has referred to such a search as one done "immediately upon arrest," although it is
permissible to delay a search in order to avoid unnecessary embarrassment to the suspect, or where it
is simply impractical to conduct it earlier. Illinois v. Lafayette, 77 L.Ed.2d (1983). Normally, however,
the search takes place at the time of the apprehension. U.S. v. Chadwick, 53 L.Ed.2d (1977). Unless
there is such a specific basis for delay, the search must be done at the same time as the apprehension.
Vale v. Louisiana, 26 L.Ed.2d 409 (1970). Also, remember that it is limited to the immediate vicinity.
Shipley v. California, 23 L.Ed2d 732 (1969).
d. Searches of Automobiles--What is Incident to Apprehension? In one case, the police
apprehended some individuals for drug offenses. They were apprehended in a vehicle and, as part of
the search incident thereto, the police unzipped the pocket of a jacket they found on the back seat. It
was found to contain cocaine. Was this a lawful search of the arrestee's "surrounding area?" The
Supreme Court said yes, and held that articles inside the passenger compartment are considered to be
within "the area into which an arrestee might reach in order to grab a weapon or evidentiary item...when
a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger compartment of that automobile...The
police may also examine the contents of any containers found within the passenger compartment, for
the passenger compartment is within the reach of the arrestee. So also will containers in it be within his
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