The search incident doctrine doesn’t apply to a stop and frisk. Thus, when a container is removed from a person in a frisk and the officer has no reasonable basis for concluding that the container has a weapon in it, opening the container is unreasonable. And, without an arrest, search incident doesn’t apply to a frisk. State v. Lee, 2017 Ida. LEXIS 277 (Sept. 22, 2017):
We agree with the rationale adopted by the courts in Reid, Taylor, and Macabeo. The reasonableness of a search is determined by the totality of the circumstances, and a search incident to arrest is not reasonable when an arrest is not going to occur. We determine if an arrest is going to occur based on the totality of the circumstances, including the officer’s statements. While the subjective intent of an officer is usually not relevant in Fourth Amendment analysis, statements made by the officer of his intentions along with other objective facts are relevant in the totality of circumstances as to whether an arrest is to occur. If an arrest does not occur, and objectively the totality of the circumstances show an arrest is not going to occur, an officer cannot justify a warrantless search based on the search incident to arrest exception.
Here, Officer Laurenson told Lee he would get a citation for driving without privileges. It was only after Officer Laurenson searched Lee and subsequently the containers that Officer Laurenson decided to arrest Lee. Because the totality of the circumstances, including Officer Laurenson’s statement that Lee was to get a citation, show that no arrest was to occur prior to finding marijuana and methamphetamine during the search, the search that occurred was a search incident only to an intended citation. Therefore, the search incident to arrest exception to the warrant requirement cannot justify the search. Thus, the search was unlawful, and therefore the fruits of the search must be suppressed. Accordingly, the district court’s denial of Lee’s motion to suppress must be reversed.