M.D.La.: Search incident couldn’t be used to justify search here days after the controlled buy that gave cause

The search incident doctrine can’t be used to justify a search incident to a warrantless arrest days after the event that gave the probable cause. The arrest can’t be manipulated like that. An arrest warrant could certainly have issued, but they didn’t get one here. United States v. Clark, 2015 U.S. Dist. LEXIS 112076 (M.D.La. August 24, 2015):

Beyond the search warrant, the Government offers two additional justifications for the seizure and subsequent search of Defendant’s person and vehicle: (1) officers already had probable cause to arrest Defendant based on his participation in a controlled-buy several days prior to the search, coupled with testimony from a confidential informant that Defendant had been seen with a firearm in the past, and (2) Defendant committed a traffic violation. (Doc. 16 at p. 8).

The Government’s first contention is wholly without merit. “To determine whether an officer had probable cause to arrest an individual, [a court must] examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) (emphasis added)). “Probable cause exists when the facts available at the time of the arrest would support a reasonable person’s belief that an offense has been, or is being, committed and that the individual arrested is the guilty party.” Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994) (emphasis added). This standard does not contemplate arrests multiple days after alleged illegal activity is observed, as obtaining an arrest warrant is the more appropriate course of action under those circumstances. Instead, this standard implies contemporaneity. Interestingly, all of the case law cited by the Government confirms this proximity requirement. See Devenpeck v. Alford, 543 U.S. 146, 153, 125 S. Ct. 588, 160 L. Ed. 2d 537 (reiterating the rule requiring that the offense establishing probable cause be “closely related” to, and based on the same conduct as, the offense identified by the arresting officer at the time of arrest in a case where officers pulled over and subsequently arrested defendant for impersonating a police officer); United States v. Hearn, 563 F.3d 95, 103 (5th Cir. 2009) (after receiving information from confidential informants that the defendant was selling methamphetamine out of a hotel room, the officers set up a controlled buy; the defendant was arrested moments later while walking to the vending machine); United States v. Mills, 555 F. App’x 381, 383 (5th Cir. 2014) (defendant was arrested without a warrant when he arrived at an agreed-upon location in the car predicted pursuant to a codefendant’s arranging a purported drug transaction). Thus, although the events in the days leading up to Defendant’s arrest may have provided a sufficient basis to obtain an arrest warrant, or a sufficient basis on which to arrest Defendant at the time the controlled-buy took place, the probable cause was not present on October 7, 2014, at the time of Defendant’s arrest, when officers confirmed that they did not witness Defendant doing anything illegal. Accordingly, the only possible justification remaining is whether the seizure constituted a lawful traffic stop.