Warrantless Search and Seizure and Search Incident to an Arrest

Abstract

This legal opinion analyses the legitimacy of a warrantless search and seizure as an incident to an arrest. Although the search warrant specified the premises where it was meant to be executed, police gained access to a different location, where contraband was eventually seized. Meanwhile, the purported arrestee was already under the custody of police. Even though the police had acted facially outside the scope of the warrant, the trial judge held that the search was incident to an arrest and, hence, the evidence was admissible.  This legal opinion puts it into perspective precedents of the Supreme Court of Brazil, the Supreme Court of the United States and historical common law leading cases between 1660 and 1800, distinguishing (i) warrantless search, (ii) arrest incident to a search, (iii) search incident to an arrest. Considering that the seized objects were found in a dwelling facially outside the scope of the warrant, that police did not request a valid warrant to the issuant magistrate, and that the search could not have been held incidental to an arrest, this legal opinion concludes that such evidence was illicit and, therefore, inadmissible in court.