VA: “[U]nder the Fourth Amendment, probable cause of contraband is the standard to obtain a warrant, not the standard to search a person without one.”

“The Commonwealth bears the burden of proving that a warrantless search fits under an exception to the warrant requirement of the Fourth Amendment. While the exceptions are many, mere probable cause to arrest is not one of them. Nor can a search be incident to an arrest when the arrest comes two months after the search. As such, we must reverse and remand for further proceedings.” “As we explain below, probable cause that an individual has contraband, without more, meets the standard for obtaining a warrant, not searching without one. We then conclude the record the Commonwealth developed below is insufficient to allow us to apply the right result, wrong reason doctrine and affirm on any other ground. Finally, we find that the good-faith exception to the exclusionary rule does not apply.” Parady v. Commonwealth, 2023 Va. App. LEXIS 428 (July 5, 2023):

Given the constitutional implications of the differences between a formal arrest and mere probable cause to arrest, it is unsurprising that the Supreme Court has held “[i]t is the fact of the lawful arrest which establishes the authority to search.” Robinson, 414 U.S. at 235. And a number of our sister states have held the same. See, e.g., State v. Ingram, 331 S.W.3d 746, 758 (Tenn. 2011) (“It is not sufficient that an arrest could have been made; the arrest must have been made roughly contemporaneously to the search in order for it to justify the search as incident to an arrest.”); State v. Pallone, 613 N.W.2d 568, 577 (Wis. 2000) (“For the search incident to arrest exception to apply, there must be an arrest.”); Belote v. State, 981 A.2d 1247, 1256-62 (Md. 2009) (reversing denial of motion to suppress evidence recovered in search of suspect because suspect had been detained but not formally arrested); People v. Reid, 26 N.E.3d 237, 239 (N.Y. 2014) (“It is irrelevant that, because probable cause existed, there could have been an arrest without a search. A search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not.”). Therefore, assuming, without deciding, that Deputy Tharp had probable cause to arrest Parady, he did not do so, so no exception to the warrant requirement applies.