The search incident exception supported the search here because it was factually and legally appropriate except for the fact that the actual arrest didn’t occur until months later. The officers chose not to arrest at that moment. United States v. Schneiders, 2020 U.S. Dist. LEXIS 231819 (N.D. Iowa Dec. 10, 2020):
Thus, although the exception recognized in Cupp and the search incident to arrest exception may be related, they are also distinct, as the Cupp exception does not require an arrest. See Cupp, 412 U.S. at 300 (Blackmun, J. and Burger, C.J., concurring) (“While I join the Court’s opinion, I do so with the understanding that what the Court says here applies only where no arrest has been made. Far different factors, in my view, govern the permissible scope of a search incident to a lawful arrest.”). Instead, Cupp applies when certain other factors are present.
First, officers must have probable cause to arrest the subject at the time of the search. Cupp, 412 U.S. at 296. Second, although the timing of any related arrest may be irrelevant, the search must occur under arrest-like circumstances. Id. Because a person who is not arrested before a search does “not have the full warning of official suspicion that a formal arrest provides,” circumstances leading up to the search must “sufficiently apprise[] [him] of his suspected role in the crime” such that there is motivation to destroy or dispose of evidence of that crime. Id.
Third, the evidence that is searched for must be readily destructible. Id. In a concurring opinion, two justices also suggested that the officers must have “reasonable cause to believe that the evidence [is] on [defendant’s] person.” Id. at 300 (Blackmun, J. and Burger, C.J., concurring). Finally, a search that occurs without an arrest must be more limited than a typical search incident to arrest, meaning it does only what is necessary to preserve or protect evidence from destruction. Id. at 296.
Based on my de novo review, I agree with Judge Mahoney that the warrantless search of Schneiders’ person in this case was consistent with Cupp and did not violate the Fourth Amendment. As discussed above, the officers had probable cause to arrest Schneiders by at least the time of the drug dog alert. The officers’ investigatory actions and questions, including the drug dog’s alert, warned Schneiders of the officers’ suspicions that he possessed drugs or was involved in trafficking them. Such knowledge provided motivation to destroy or otherwise dispose of such evidence. Because of the officers’ evidence that Schneiders was involved in a drug deal, and the high likelihood that drugs were, or had been, near where Schneiders was sitting in the van, the officers had reasonable grounds for believing that Schneiders would have evidence of a drug transaction on his person. Such evidence could be easily destroyed, or otherwise disposed of, if it were not seized before allowing Schneiders to leave. Finally, there is no evidence that the search was unreasonably intrusive or was conducted for any purpose other than to recover evidence related to drugs. As such, and with the exception of the minor factual modifications addressed above, which do not affect the ultimate outcome, I will adopt Judge Mahoney’s R&R.
Comment: Officers should not be penalized for the more civilized route of catch and release and arresting later when formal charges are made. In addition, some state jurisdictions have speedy trial rules that may counsel officers not to arrest at the earliest opportunity before they fully make their case.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)