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Idaho Supreme Court: Officer Must Intend to Arrest Before Conducting a Search Incident to Arrest

by Christopher Zoukis

The Idaho Supreme Court handed down an opinion on September 22, 2017 that clarified an important exception to the requirement that police officers obtain a warrant prior to conducting a search. The exception known as “search incident to arrest” allows police to conduct a warrantless search of an arrestee while in the process of a lawful custodial arrest. The Court ruled that an officer must actually intend to make the arrest before conducting such a search.

Officer Laurenson of the Fruitland Police Department observed Trevor Lee driving. From past experience, he suspected that Lee was driving without a license and confirmed his suspicion after running his name. A short time later, Laurenson saw Lee walking along the road and stopped him for suspicion of driving without a license.

During the stop, Laurenson noticed a large bulge in Lee’s pocket, and without Lee’s permission, he searched Lee’s pocket. The pocket contained a small pocketknife and several cylindrical containers. Laurenson then placed Lee in his patrol car, told him that he was “going to get a citation for driving without privileges,” and proceeded to search the containers, which contained drugs. Lee was subsequently arrested on charges of possession of a controlled substance, possession of paraphernalia, and driving without privileges.

Lee filed a motion to suppress the evidence found during the search. The trial court denied his motion, and Lee entered into a plea agreement. On appeal, the appellate court affirmed the denial of Lee’s motion to suppress and judgment of conviction.

In reviewing the denial of Lee’s motion to suppress, the Idaho Supreme Court engaged in a two-part analysis. First, the Court analyzed whether the initial search of Lee’s pocket was permissible. Relying on Terry v. Ohio, 392 U.S. 1 (1968), which permits a limited, warrantless pat-down search for weapons, the Court held that the initial Terry pat-down was permissible.

However, the Court went on to hold that Laurenson exceeded the scope of a Terry frisk when he opened the containers because the officer acknowledged that he suspected that the containers held drugs, not a weapon. Thus, unless another exception to the warrant requirement applied, the search in which the drugs were discovered was unlawful.

The State argued that the search incident to arrest exception to the warrant requirement permitted the search of the containers. The Court rejected the State’s argument, declaring “a search incident to arrest is not reasonable when an arrest is not going to occur.”

The Court explained: “If an arrest does not occur, and objectively the totality of the circumstances show an arrest is not going to occur, an officer cannot justify a warrantless search based on the search incident to arrest exception.” In this case, Lee was not under arrest at the time of the search, and the totality of the circumstance showed he was not going to be arrested. Prior to the search, Laurenson told Lee he was issuing him a citation for the traffic infraction, not arresting him for it. “Therefore, the search incident to arrest exception to the warrant requirement cannot justify the search. Thus, the search was unlawful, and therefore the fruits of the search must be suppressed.”

The Idaho Supreme Court vacated Lee’s conviction, reversed the trial court’s denial of Lee’s motion to suppress, and remanded for further proceedings. See: State v. Lee, 402 P.3d 1095 (Idaho 2017). 

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