The Wingspan Exception Explained: Police Search Authority After an Arrest

The conversation focuses on the tricky ins and outs of the Fourth Amendment, especially what the police can and can’t search when someone gets arrested.

One concept is the “wingspan exception”—basically, if you’re getting arrested, anything within your immediate reach might be fair game for a search if it’s to keep officers safe 00:35.

The discussion explores how things aren’t always so simple; for example, what happens if you walk away from your bag, or what if the police discover something illegal while just looking for weapons? There were lots of questions and not too many clear answers, which is kind of the point—a key theme that emerged was just how much the law depends on the situation, with courts and lawyers always arguing both sides 06:38.

Whether it’s dealing with backpacks, cell phones, or just how far you have to be from your stuff for the police to need a warrant, this episode pulls back the curtain on why legal issues are rarely black and white. Prepare to leave with more to think about than when you started!

FAQ's

What is the wingspan exception in the context of police searches during an arrest?

The wingspan exception allows police to search areas within immediate reach of an arrestee, like a bag nearby, for weapons or evidence to ensure officer safety, as established by Chimel v. California. This means closed containers within arm's reach can be lawfully searched during an arrest.

How does walking away from a bag affect the police’s right to search it?

If someone walks away and creates distance from a bag, it may limit police authority to search it, unless the property is considered abandoned or there are overriding safety concerns; whether police can search depends on the specific facts and legal interpretations. The discussion notes this is highly fact-specific, with no simple yes or no answer, as factors like arrest status and proximity matter greatly.

Why are there no clear-cut answers to Fourth Amendment search questions?

There are no clear-cut answers because the law continually evolves, each scenario presents unique circumstances, and Supreme Court cases only set baselines rather than rigid rules. The episode emphasizes that everything is an argument and interpretations can differ depending on specific facts and ongoing legal developments.

Submit your questions to www.lawyertalkpodcast.com.

Recorded at Channel 511.

Stephen E. Palmer, Esq. has been practicing criminal defense almost exclusively since 1995. He has represented people in federal, state, and local courts in Ohio and elsewhere.

Though he focuses on all areas of criminal defense, he particularly enjoys complex cases in state and federal courts.

He has unique experience handling and assembling top defense teams of attorneys and experts in cases involving allegations of child abuse (false sexual allegations, false physical abuse allegations), complex scientific cases involving allegations of DUI and vehicular homicide cases with blood alcohol tests, and any other criminal cases that demand jury trial experience.

Steve has unique experience handling numerous high publicity cases that have garnered national attention.

For more information about Steve and his law firm, visit Palmer Legal Defense.

Copyright 2026 Stephen E. Palmer - Attorney At Law

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All right, Lawyer Talk Off The Record, on the air, taking on a couple questions.

You know, we talked a little bit in one of the prior

episodes about the Mangione

case and some of the Fourth Amendment suppression issues that were coming

up. And you know, it got confusing. So I'm not going to dig into that,

but I will follow up some of the questions that people had about it. But

generally what was going on is the suspect gets arrested or any suspect

gets arrested and in the possession of the

suspect at the time or the initial police encounter

is a backpack. Say it's a zipped up backpack. And if the

suspect is getting arrested in theory, under a case called California

vs Chimel, c h I M E L Let me get the site for the

legal geeks out there. It would be,

of course I said I was going to get it. Now I don't have it

right at hand. So. So the site would be 395

US752 decided back in

1969

is Chimel versus California. But basically what Chimel says, look,

I get it, we've got the Fourth Amendment. It says you can't search stuff without

a warrant. But there's got to be some exceptions. And one of the exceptions is

going to be this wingspan rule. So within my wingspan, in theory, if I'm getting

arrested, I could maybe get to something in a closed bag that would

resemble something like a weapon. And therefore, under the ubiquitous or

all present omnipotent exception for officer

safety, the police can open that bag to look for weapons.

Now if you take it one step further while they're in the bag, there's

another exception called plain view. So the court would say, well, look,

even though you're looking for weapons, lo and behold, there's a kilo of cocaine in

that bag. We can't expect our officers to ignore that. So therefore

that search, because they were there initially lawfully by the wingspan

exception, and they see something like a kilo of cocaine that is obvious

contraband, well, they can seize that too without a warrant.

And then it goes on and on and on. Now there, there's some limits to

this. And we got a question, let me pull that up.

And it says, so if a person walked away from the bag and put it

in, put distance in between you and the bag or the person in the bag,

in theory, it makes it where they can't look at it. Like so many answers

I have to these. Yes, no, maybe one, one listener said it

sounds like it. And then the follow up question and another says, that's what updated

case law says, but that would change if the person is arrested.

So, yes, no, maybe. And this becomes. Everybody wants these

bright line rules, law schools like this. I mean, you go

to law school and you're looking for answers. You're thinking, all right, well, they write

down the law. We should be able to learn the law and memorize it and

go forth and prosper as a lawyer. But it doesn't work like that. What you

learn in law school is that there is no bright line answer to anything. There's

this argument, there's this argument, and maybe the best answer in between, or maybe

even the legal decision which doesn't even adopt the best answer in between or any

of the other arguments. So everything is an argument, everything is

abstract. And this is what I love about the law.

Our common law tradition is that the law sort of

evolves and it's not. We don't have common law like we used to back in

England in the old days where they were fighting each other and jousting each other.

But we still have this theory that the law has to change. The law has

to evolve with, with our society. And one of the

ways it evolves is, for instance, I'll give you an example. We have cellular

phones. And when we wrote the fourth Amendment

back in the old, old, old days, when the fourth Amendment was drafted, I'm sure

our founders had no concept that we would be carrying around a little cellular

device that would contain what I call our digital

DNA. And they wouldn't have thought for a second whether the police had a

right to search for the contents of your cell phone with or without a warrant

because they didn't know cell phones existed. So legal theory and

judicial decisions has evolved to address that. And I'm bringing that

up and I'll get to it in a second. But back to it. So the

law has sort of evolved. And, you know, we would get to the point where

we would have to ask, how far away is far enough, where the police

are no longer in fear for their safety. So let's just take

a couple scenarios. Take a movie. What's the bombing movie?

The Atlanta bombing movie. So take that movie. I forget what it is, but the

Atlanta Olympic bombing. Somebody leaves a backpack

in public and walks away from it. And the

police see it. Are they allowed to go look in that bag? Are they not

allowed to look in the bag? I'll tell you some of the issues that are

going to come up. Well, clearly under California versus Chimel, it's

no longer in the wingspan of the of the suspect.

And the suspect isn't even under arrest because he hasn't done anything

wrong yet. But everything looks awful fishy and there's a bag there.

The police are going to say, well, look, this is no longer. The person

has either maybe abandoned the property because it looked like they just left it there

on purpose, but what if they didn't even see that and it's just abandoned property?

Are the police able to look in it without a warrant? And does the person

who walked away have a reasonable expectation of privacy? I. Of

privacy, meaning that they can say, you can't look in there, coppers,

you're not allowed to look. So these are the kind of issues, and here's

what's going to happen. I'm not going to answer those questions because there is no

good answer to the questions. There's only arguments about whether they should or should

not. And in that scenario, there's probably. Everybody's out there, probably

screaming, heck yes. We're in a crowded place, somebody abandoned a bag. There

could be a bomb. We should let the police look in there and find out

what's going on. And let's say they do. They, they open it up and lo

and behold, there is no bomb. But there's that key, that pesky kilo of cocaine.

And the person who left it there said, wait a minute, that's an illegal search.

You violated my fourth amendment rights. The other people are gonna say, well, I don't

care, because we were making sure there was no bomb and that was gonna blow

up and kill everybody. So these are the things that you grapple with if you

wanna know what law school's like. It's like this. All right, back to the question.

So if the person walked away from the bag and put a distance between it,

in theory, it makes it where they can't look at it again. Yes, no, maybe.

Maybe they abandoned the property and they no longer have an expectation of privacy in

it. Maybe they're under arrest so far away that there's no way they could get

to the bag, meaning they're in the dirt in handcuffs, and there's

no longer a valid exception available for the police to

search it. So look, it all depends, and these are so fact

specific. What the US Supreme Court tries to do in cases like Chimel is they

set sort of a baseline standard for a particular factional

scenario. And then the next crafty lawyer, like, maybe

like I come along and I say, wait a minute, I'm going to apply that

to a different set of facts and circumstances and Then the law,

of course, would evolve. There is a case I do want to talk

about. One is Arizona versus Gantt. This is where it comes up in sort of

a traffic context. And basically what Gant was the guy, I

think Gantt, the suspect, was already in cuffs

in the back of the car. Let me pull that up so I don't get

it wrong for you commenters. It

limited the police authority to conduct a warrantless search of a vehicle after arresting

recent occupant. Police may only search the vehicle

without a warrant under two specific circumstances, safety and accessibility.

If the arrestee is unsecured and within the wingspan and they can reach the interior

compartment, or. Here's the one that really is going to ring your bell.

If it is evidence preservation, it's reasonable to believe

the vehicle contains evidence. So reasonable to believe in quotes. What the hell does that

mean? You tell me. Contains evidence related to the specific crime

of arrest. So say the suspect, our hero, is under arrest

in the back of the cruiser and

smelled like marijuana, recently burned, and he's in the

back of the cruiser and the police are going to go search the car. Well,

they can do that under a case called Belton, I guess, New York

vs. Belton, and look for evidence of marijuana. So they're saying you can do that?

Well, lo and behold, guess what? As soon as the police

are able to look for evidence of the crime that the person is under arrest

for, well, then they can also

see stuff in plain view, like a gun or

other contraband or whatever else would be there. So sort of opens up the door

for all sorts of other, quote, searches that

are happening at the same time. But let's say they find

a cell phone, and that's not

necessarily going to qualify. And the court has also held

that the police can't simply. They can, they can maybe take the phone or seize

the phone, but getting inside the phone is a whole different mess that's going to

require its own warrant. And that is a.

Is a different scenario. And I. So there's a limit to it. And let me,

let me give you the old analogy before cell phones. Actually, I forget the case

where the Supreme Court said it. You can't look for an elephant in a shoebox.

So if the police are looking for some weapon, they're looking for something

to protect their own, quote, safety.

They're not going to find a gun inside a raisin box

or they're not going to find a gun inside a box that's too small to

hold a gun. You can think of some other analogies. And the

elephant in the shoebox was where the police that case came up where the police

were inside a house to make an arrest. They didn't have a warrant to search

the whole house, but they have a right to do a, quote, protective sweep, again

for officer safety because there might be some dangerous suspect

lurking in the closet. They're allowed to look in the closet,

but they can't open up the shoebox that's in the closet because, lo and

behold, the person's too big to fit in a shoebox. So what have I talked

about here? Absolutely nothing. I've just probably given you more

questions than answers which actually fits because I did have a comment.

I love these comments. I'm going to pull it up if I can find

actually fits because.

Here we have this comment or this is actually somebody messaged

me on Facebook. Stupid things lawyers do as the first and then shortly after

that. No, a week after that or two. I've never heard someone talk about nothing

so much in my whole life. Worse than a woman. So be it. I guess

worse than a woman is a lawyer on Lawyer Talk, where we are coming at

you off the record. But on the air, if you've got a question, you want

me to discuss something and not answer it and give you more questions, just send

it to me here like this guy did or in the comments or go to

lawyertalkpodcast.com Happy to answer that question.