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Without an arrest, the Police could not use the Search Incident to an Arrest Warrant Exception to su

T1 Suppression Hearing - the Officer said he followed the defendant car when it crossed the double yellow lines. The officer made a stop for potential drunk driving. "It is not disputed that the officer's observations gave him probable cause to arrest defendant for driving while intoxicated (though, as it later turned out, defendant's blood alcohol level was zero). [Officer] Merino asked defendant step out of the car and patted him down. In the course of doing so, he found a switchblade knife in defendant's pocket. Defendant was then arrested."; Defendant's motion to suppress the knife was denied on the ground that the pat-down was justified as search incident to arrest

T2 The appellate division affirmed, holding that so long as probable cause to arrest defendant for driving while intoxicated existed, it was irrelevant whether [officer] Merino subjectively intended to make such an arrest;

T3 Leave was granted and the case was REVERSED;

Issue: whether a search of a driver by the police officer who stopped but did not arrest should be considered incident to the driver's arrest.

Law: "The only justification the People offer for the search is that it was incident to a lawful arrest, and exempt for that reason from the general rule that searches require a warrant (see United States v. Robinson, 414 US 218 (1973))."

Analysis: "it is clear that the search was not unlawful solely because it preceded the arrest, since the two events were substantially contemporaneous (see Rawlings v. Kentucky, 448 US 98, 111 (1980))(Where the formal arrest followed quickly on the heels of the challenged search . . ., we do not believe it particularly important that the search preceded the arrest rather than vice versa)...Nor is it decisive that the police chose to predicate the arrest on the possession of a weapon, rather than on driving while intoxicated (see Devenpeck v. Alford, 543 US 146 (2004)) say that the search was incident to the arrest does not make sense. It is irrelevant that, because probable cause existed, there could have been an arrest without a search. Citing Knowles v. Iowa (525 US 113 (1998)), the Court of Appeals stated that the rationales justifying the incident to arrest exception to the warrant requirement are officer safety and the preservation of evidence, neither of which are applicable because, here, there was no arrest made."

The Court of Appeals indicates that the Appellate Division made an error because the cases of which the Appellate Division relied hold that a stop or arrest is valid where it is supported by the necessary level of suspicion or probable cause whatever the actual motive for the officer's action. The exception is not an exception to a warrantless search without an arrest. Here, Officer Merino made a similar choice not to arrest the defendant for drunken driving, a fact proved by the officer's testimony.

Holding "it was not, because the record shows that, although probable cause to arrest the driver existed before the search, the driver would not have been arrested if the search had not produced evidence of a crime. A search must be incident to an actual arrest, not just probable cause that might have led to an arrest, but did not (People v. Evans, 43 NY2d 160, 165 (1977))."

Order reversed, defendant's motion to suppress granted and indictment dismissed. Opinion by Judge Smith. Chief Judge Lippman and Judges Pigott and Rivera concur. Judge Read dissents in an opinion. Judge Abdus-Salaam took no part.

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