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AFCop has the correct answer. If I am legally in a place I can be, anything I find can be used. This is the basis for the plain sight exception to the warrant, and it also applies to how warrants work. If I am searching according to a warrant, I can search places that the specified item could be in. If I am there legally and find something else, I can use it.

So, if I am searching for drugs, I can open some pretty small containers and anything I find is usable. If I am searching for a stolen 60 inch LCD Television, I cannot legally open a desk drawer. If I do, anything I find there is excluded. I cannot even use it for a later search warrant since I was not legally in the drawer.

On a search incident to an arrest, the courts have said I am searching for three things. First is anything that could hurt me. Second is any evidence of the crime (or other related crimes). Third is anything that is valuable or disruptive to security of the jail. The basic logic of the search is that the person was going to be searched at the jail anyway, so I can do it in the street to increase my safety. One of the other exceptions to the exclusionary rule is called inevitable discovery. If I do something wrong, but we would have found the evidence anyway, I can still use it. So, the evidence would have been found at the jail anyway and I can use anything I find at the scene.

As you can see, the rules on search are really a lot more complicated than the media and police shows would have you believe. The major point to remember is that the Fourth Amendment is not absolute and only protects from "unreasonable" searches. You, I, and the courts may disagree on what is unreasonable, but the court gets the final say.

Actually, this is a long standing policy of the SCOTUS. It is the good faith exception to the exclusionary rule. Basically if the cop making the arrest had a valid reason to believe he was operating in accordance with the law, and he is operating on this belief in good faith that what he does is legal, then the exclusionary rule does not apply. The logic is that this type of incident would not be deterred by the exclusionary rule.

So, a cop planting evidence would always be forbidden as there would be no good faith belief it was legal. In the case the SCOTUS just ruled on, the cop made the arrest based on the neighboring county saying there was a warrant for the arrest. The county computers were wrong and the warrant had been recalled. The cop made the arrest and on scene search. When he went to book the suspect, he had asked for the paper copy of the warrant and that is when the error was found.

As for the no refusal policy of APD, I disagree with it but it is legal. It has always been legal to get a search warrant for evidence of a crime, even in the body. This has been done before for blood samples, DNA swabs, fingerprint examples, writing samples, speech samples, and many other types of evidence of this nature. So, the no refusal seems to violate the spirit of the implied consent laws, but it is legal.

I expect to see it disappear in a couple years. There is a great defense to DWI coming based on it and I know a couple lawyers who would love to take the appeal. If the courts rule the way I think they should (probably won't because of the society pressure on DWI), look for no refusals to go away. I don't want to get into details on the defense, but it has to do with evidence obtained under duress. It is one of those unintended consequences of things not thought through fully.