NY: Search incident to arrest requires an arrest

There has to be an arrest that occurred or is going to occur to justify a search incident to arrest. Here, there was no intent to arrest until the search turned up something, so the search is invalid. People v. Reid, 2014 NY Slip Op 08759, 2014 N.Y. LEXIS 3372 (December 16, 2014):

It is not disputed that, before conducting the search, Merino could lawfully have arrested defendant for driving while intoxicated. And it is clear that the search was not unlawful solely because it preceded the arrest, since the two events were substantially contemporaneous (see Rawlings v Kentucky, 448 US 98, 111 [1980] [“Where the formal arrest followed quickly on the heels of the challenged search …, we do not believe it particularly important that the search preceded the arrest rather than vice versa”]; People Evans, 43 NY2d 160, 166 [1977] [“The fact that the search precedes the formal arrest is irrelevant as long as the search and arrest are nearly simultaneous so as to constitute one event”]). Nor is it decisive that the police chose to predicate the arrest on the possession of a weapon, rather than on driving while intoxicated (see Devenpeck v Alford, 543 US 146 [2004]). The problem is that, as Merino testified, but for the search there would have been no arrest at all.

Where that is true, to say that the search was incident to the arrest does not make sense. It is irrelevant that, because probable cause existed, there could have been an arrest without a search. A search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not (People v Evans, 43 NY2d 160, 165 [1977]; People v Erwin, 42 NY2d 1064, 1065 [1977]).

Knowles v Iowa (525 US 113 [1998]) is controlling here. In that case, an officer stopped the defendant for speeding, and had probable cause to arrest him under Iowa law, but chose to issue him a citation instead. The officer then searched the car, found marijuana and arrested the defendant. A unanimous Supreme Court held the search inconsistent with the Fourth Amendment. As the Court explained, the rationales justifying the “incident to arrest” exception to the warrant requirement are officer safety and the preservation of evidence; neither of these provides a sufficient reason for upholding a search where no arrest is made (id. at 116-118). The incident to arrest exception is a “bright-line rule” that does not depend on whether there is a threat of harm to the officer or destruction of evidence in a particular case (id. at 118; Robinson, 414 US at 235) — but the rule is inapplicable to cases that fall, as does this one, outside the bright line.

The Appellate Division erred in extending the logic of Whren v United States (517 US 806 [1996]), People v Robinson (97 NY2d 341 [2001]) and Devenpeck (543 US 146) to the present case. These cases hold that a stop or arrest is valid where it is supported by the necessary level of suspicion or probable cause, whatever the actual motive for the officer’s action. But the “search incident to arrest” doctrine, by its nature, requires proof that, at the time of the search, an arrest has already occurred or is about to occur. Where no arrest has yet taken place, the officer must have intended to make one if the “search incident” exception is to be applied.

If a search could be justified by an arrest that, but for the search, would never have taken place, the Supreme Court would not have decided Knowles in the way it did. In Knowles as in this case, there was probable cause to make an arrest, and there was a search, followed immediately by an arrest. The problem, in Knowles as here, was that the search caused the arrest and not the other way around. In Knowles, this fact was proved by the officer’s choice, before conducting the search, not to arrest defendant for speeding but to issue him a citation. Here, Officer Merino made a similar choice not to arrest defendant for drunken driving, a fact proved by the officer’s testimony.