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.