Search incident to arrest exception requires an arrest, and drug involvement alone does not warrant a frisk

Defendant was ordered out of a car and frisked. The state argued that it was valid as a search incident, but he was not arrested until much later. Because the search was not even “roughly contemporaneous” with the arrest, the search incident doctrine could not be relied upon. Commonwealth v. Washington, 449 Mass. 476, 869 N.E.2d 605 (2007):

Because there was probable cause to arrest, the motion judge upheld the search as one incident to an arrest. The problem with this analysis is that the defendants were not arrested at the time of the search or at a time “substantially contemporaneous” thereto. New York v. Belton, 453 U.S. 454, 465, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). See Commonwealth v. Alvarado, 420 Mass. 542, 554, 651 N.E.2d 824 (1995). The judge noted correctly that a suspect need not be formally under arrest at the precise moment of a search incident to an arrest; the search may precede the formal arrest so long as probable cause exists independent of the results of the search. Commonwealth v. Johnson, 413 Mass. 598, 602, 602 N.E.2d 555 (1992). However, the search and the arrest still must be roughly contemporaneous. See Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980) (formal arrest “followed quickly on the heels” of search); Commonwealth v. Brillante, 399 Mass. 152, 154 n.5, 503 N.E.2d 459 (1987) (formal arrest “immediately after” search). Compare Commonwealth v. Alvarado, supra (search two hours after arrest not incident to arrest). A search incident to an arrest is a limited exception to the warrant requirement, justified by “the need ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape’ and the need to prevent the concealment or destruction of evidence.” New York v. Belton, supra at 457, quoting Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). To permit a search incident to arrest where the suspect is not arrested until much later, or is never arrested, would sever this exception completely from its justifications. See Commonwealth v. Alvarado, supra. It would, in effect, create a wholly new exception for a “search incident to probable cause to arrest.” This we decline to do.

The court also held that mere drug involvement does not warrant a frisk for weapons:

Yet while drug involvement certainly may be a relevant factor in assessment of threats to police safety, we are reluctant to adopt a blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous for constitutional purposes. See Commonwealth v. Rodriguez, 415 Mass. 447, 450, 614 N.E.2d 649 (1993) (fact that drugs are involved is insufficient, in itself, to justify “no-knock” warrant). Thus, we do not uphold the search on this basis.

Affidavit for search warrant did not show nexus to the place to be searched other than a vehicle in the driveway noted to belong to a person with the same last name. That person was the defendant’s father. The court decides that this was not a sufficient transgression to suppress. The police knew that the owner of the vehicle was the defendant’s father, and that showed nexus sufficient to save the search warrant under the good faith exception. The warrant was also not unparticular because it sought records related to bomb making, not all records. Defendant was a suspect in making bomb threats. People v. Osantowski, 274 Mich. App. 593, 736 N.W.2d 289 (2007):

However, this transgression is minor. Goldston, supra at 529-530. If the affidavit had noted that Marvin Osantowski was defendant’s father, then defendant would have been sufficiently linked to the location to be searched. The Clinton Township Police Department knew that Marvin Osantowski was defendant’s father, as they both had been arraigned on unrelated charges the morning the search warrant was obtained and executed. In fact, the affidavit’s failure in this instance is merely a good-faith oversight and not the product of police misconduct. Accordingly, the stated purpose of the exclusionary rule, to deter police misconduct, would not be served by applying the rule on the basis of the affidavit’s identified deficiency. Goldston, supra at 530. Therefore, the items seized need not be suppressed. Id. at 526.

Defendant’s conclusory motion to suppress which was not accompanied by an offer of proof or a list of witnesses did not overcome the government’s response which showed justification for the stop and search, so motion denied. United States v. Valdez, 2007 U.S. Dist. LEXIS 51312 (W.D. La. June 18, 2007).*