Relevant Facts: After stopping the defendant for erratic driving, PO Merino observed sufficient signs that the defendant was drunk to supply probable cause for a DWI arrest.  He asked the defendant to get out of the car and arrested him after patting him down and finding a switchblade in his pocket.  At the suppression hearing, Merino testified that he was not going to arrest the defendant when he asked him to get out of the car and arrested him only because he ultimately found the switchblade knife.  The lower court denied suppression on the ground that the pat-down was justified as a search incident to arrest, and the Appellate Division affirmed. 

 

Issue before the Court: Whether a search incident to arrest can precede the arrest where the police would not have intended to make an arrest but for the evidence recovered from the search. 

 

Held: Reversed; motion to suppress granted and indictment dismissed.  For the search incident to arrest exception to apply where no arrest has yet taken place, the officer “must have intended to make one.” That the officer could have made a DWI arrest was irrelevant because a search must be incident to an “actual arrest, not just to probable cause that might have led to an arrest, but did not.”  The Court found Knowles v. Iowa, 525 U.S. 113 (1998) controlling, as the Supreme Court found the search outside the exception where the officer had issued a citation to the defendant for speeding instead of arresting him, but then arrested him after finding marijuana in the car.  Judge Read dissented, writing that Knowles’ reasoning was limited to the issuance of a citation; the order of search versus arrest has been found not “particularly important” by the Supreme Court; and an officer’s subjective intent offers no basis for negating an objectively valid arrest.    

 

CAL Observes: The proposition that a search incident to arrest must be tethered to an actual and intended arrest does not seem startling, and Judge Smith’s distinction of Whren and Robinson (the pretext cases) seems exactly right. It does not seem all that likely, however, that this scenario (an officer unequivocally admitting to having no intention to arrest prior to the search) will recur, especially given the thrust of the opinion.  Note that the Court of Appeals has been quite strict in its interpretation of this exception.  See People v. Jiminez, 22 N.Y.3d 717 (2014)(declining to find that the People satisfied the necessary exigency requirement under state constitution to justify seizure of the gun inside the defendant’s closed purse); see also People v. Morales, 2015 WL 519732 (Feb. 10, 2015)