WI: Search incident to a citation invalid

A search incident to a citation is invalid. State v. Marten-Hoye, 2008 WI App 19, 307 Wis. 2d 671, 746 N.W.2d 498 (2008):

P13 Thus, the United States Supreme Court has interpreted the Fourth Amendment as allowing searches incident to arrests, see Robinson, 414 U.S. at 224-26, but not searches incident to issuing citations, see Knowles, 525 U.S. at 116-19. Marten-Hoye, therefore, categorizes the police conduct in this case as analogous to the conduct in Knowles, and argues that Ben-Ami conducted an impermissible “search incident to citation.” The State, however, distinguishes Knowles on the grounds that there, the police issued a citation rather than arresting Knowles. The State argues that here, Ben-Ami effected an arrest of Marten-Hoye rather than detaining her merely to issue a citation, because the police action amounted to an arrest and, unlike in Knowles, Marten-Hoye was not issued a citation before she was searched. Thus, the State contends, the search was incident to an arrest rather than to a citation, and thus was constitutionally permissible. We conclude that the police conduct in this case is not addressed squarely under any controlling precedent, as the parties contend, but that the necessary implication from Knowles is that the search was unconstitutional.

Officers’ justification for protective sweep was invalid. Mere suspected presence of a gun inside is insufficient when the defendant is arrested, and there is no suspicion somebody else is inside. State v. Sharpe, 2008 Ohio 267, 174 Ohio App. 3d 498, 882
N.E.2d 960 (2d Dist. 2008):

[*P46] The protective sweep exception to the warrant requirement in Buie and Lyons requires some positive indication that another person or persons remain in the residential premises where a subject is arrested, and that they pose a threat to the safety of officers or others. Lacking that indication, there is not a need to act which is sufficient to avoid the requirement of a prior warrant if the house is to be searched after a defendant’s arrest there. Mere suspicion that a weapon remains inside is insufficient. Likewise, not knowing whether anyone else is there is an insufficient pretext, because the need for protection necessarily implies that another person or persons are there. Faced with such doubts, and absent any reason to believe that other persons may be inside, officers must obtain a warrant before they conduct a search of a defendant’s house after a defendant’s arrest there.

[*P47] We find that, on this record, the officers lacked a reasonable and articulable suspicion that, following Defendant’s arrest, other persons who might pose a danger to the officers remained inside Defendant’s house. Therefore, the trial court erred when it held that the protective sweep exception announced in Buie permitted the warrantless “protective sweep” search of Defendant’s house police performed following his arrest.

. . .

[*P51] The firearm posed no danger to anyone after Defendant was arrested, except to the extent that another person might use it. However, police had no basis to believe, much less suspect, that anyone else was in the house. That they did not know whether anyone else was inside is insufficient to justify their entry. The concern that another person might be there was wholly speculative, and presented no emergency requiring police to enter the house without a warrant to find the gun.