                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 44932
STATE OF IDAHO,                                      )
                                                     )
                                                              Boise, August 2017 Term
       Plaintiff-Respondent,                         )
                                                     )
v.                                                   )        2017 Opinion No. 103
                                                     )
TREVOR GLENN LEE,                                    )        Filed: September 22, 2017
                                                     )
       Defendant-Appellant.                          )
                                                              Karel A. Lehrman, Clerk
                                                     )


       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Payette County. Hon. Susan E. Wiebe, District Judge.

       District court order denying motion to suppress, reversed.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant.
       Andrea W. Reynolds, Depute State Appellate Public Defender argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
       Jessica M. Lorello, Deputy Attorney General argued.

                          _________________________________
BURDICK, Chief Justice.
       Trevor Glenn Lee appeals the Payette County district court’s denial of his motion to
suppress. As part of his plea agreement, Lee reserved the right to challenge the denial of his
suppression motion on appeal. The district court concluded the pat-down frisk was reasonable
under Terry v. Ohio, 392 U.S. 1 (1968), but the officer exceeded the scope of the frisk by
opening the containers found in Lee’s pocket. However, the district court concluded the search of
the containers was permissible as a search incident to Lee’s arrest because, prior to the search,
the officer had probable cause to arrest Lee for driving without privileges and the search was
substantially contemporaneous with the arrest. The court of appeals agreed and affirmed the
district court’s denial of Lee’s motion to suppress. We reverse.
                   I.    FACTUAL AND PROCEDURAL BACKGROUND
       On May 16, 2015, Officer Laurenson of the Fruitland Police Department observed Trevor
Lee driving a pickup. Officer Laurenson suspected that Lee might be driving without a valid


                                                 1
license due to a prior encounter and confirmed through dispatch that Lee’s license was indeed
suspended. Officer Laurenson then observed Lee park in a Maverik parking lot and enter the
store. He later observed Lee exit the store and start to walk on the highway instead of getting
back into his pickup. Officer Laurenson pulled in behind Lee, activated his patrol lights, and
made contact with Lee.
        During the initial contact, Officer Laurenson asked Lee why he left his truck back at the
Maverik store. Lee responded that he wanted to walk. Officer Laurenson then asked Lee for his
driver’s license. Lee said that he did not have his license on him while patting his pockets.
Officer Laurenson told Lee not to touch his pockets and asked if he had any weapons. Once
again, Lee began patting his pockets, mumbling some words. Officer Laurenson immediately
told Lee not to touch his pockets and to go to the front of his patrol car. Lee did not move, asking
“What did I do?” Officer Laurenson, once again, told Lee that he saw him driving with a
suspended license. Officer Laurenson told Lee another three times to go to the patrol car, but Lee
did not comply, arguing that he “was not driving.” Finally, on the fifth request, Lee began to
walk towards the patrol car. Once Lee made it to the patrol car, Officer Laurenson began a pat-
down frisk for weapons. During the frisk, Officer Laurenson felt a large bulge in Lee’s front
pocket. Officer Laurenson felt that the bulge consisted of several cylindrical items, but one item
felt longer, like a pocketknife. Officer Laurenson asked Lee for his consent to search his pocket;
Lee denied his request, but Officer Laurenson, not knowing whether the item he felt was indeed
a knife, told Lee that he was going to anyway. Officer Laurenson pulled each item out one at a
time until he reached and pulled out the last object, a pocketknife. Officer Laurenson handcuffed
Lee and told him that he was being “detained right now.” Officer Laurenson advised Lee that he
was “going to get a citation for driving without privileges” and in the meantime, that he was
“going to sit in the back of [the] car.”
        Once Lee was detained, Officer Laurenson examined the containers because, based on his
experience and training, he believed the containers contained evidence of drug activity. Officer
Laurenson opened the container that he found to be the “most worn” and discovered a green
leafy substance. He then opened the other container and discovered a powdery residue. Officer
Laurenson arrested Lee and charged him with Possession of a Controlled Substance, Possession
of Paraphernalia, and Driving without Privileges.




                                                 2
       Lee moved to suppress the evidence found during the search. The district court denied
Lee’s motion to suppress. The court concluded Officer Laurenson was justified in conducting a
frisk under Terry. However, the court concluded that Officer Laurenson exceeded the scope of a
Terry frisk when he opened the containers because he did not believe the containers contained
weapons. Nonetheless, the court held that the search of the containers was permissible as a
search incident to Lee’s arrest because Officer Laurenson had probable cause to arrest Lee based
on the driving offense, and the search was substantially contemporaneous with the arrest.
       The parties entered into a plea agreement, pursuant to which Lee pled guilty to felony
possession of a controlled substance and the State dismissed the misdemeanor charges. The court
imposed a unified sentence of four years, with eighteen months determinate. The court then
suspended the sentence and placed Lee on probation for three years. The court of appeals
affirmed the district court’s denial of the motion to suppress and judgment of conviction. Lee
timely petitioned for review to this Court.
                                   II.   ISSUES ON APPEAL
   1. Regarding the Terry frisk, was the district court correct in holding that the frisk was
      reasonable, but that the officer exceeded the permissible scope under Terry?

   2. Under the search incident to arrest exception, was the district court correct in holding that
      the search of the containers was permissible because the officer had probable cause to
      arrest Lee for driving without privileges prior to the search regardless of whether the
      officer intended to arrest Lee before finding the drug paraphernalia?




                                                3
                                    III.     STANDARD OF REVIEW
        When addressing a petition for review, this Court will give “serious consideration to the
views of the Court of Appeals, but directly reviews the decision of the lower court.” State v.
Schall, 157 Idaho 488, 491, 337 P.3d 647, 650 (2014). In reviewing an order denying a motion to
suppress evidence, this Court applies a bifurcated standard of review. State v. Purdum, 147 Idaho
206, 207, 207 P.3d 182, 183 (2009). This Court will accept the trial court’s findings of fact
unless they are clearly erroneous but will freely review the trial court’s application of
constitutional principles to the facts found. Id. Findings of fact are not clearly erroneous if they
are supported by substantial and competent evidence. State v. Bishop, 146 Idaho 804, 810, 203
P.3d 1203, 1209 (2009).
                                              IV.      ANALYSIS

        Lee’s constitutional challenges arise exclusively under the United States Constitution, as
Lee makes no argument under the Idaho Constitution. 1 Lee contends the district court erred in
denying his motion to suppress for two main reasons. First, Officer Laurenson’s frisk of Lee was
not a permissible frisk under Terry. Second, Officer Laurenson’s search of Lee’s containers was
not permitted under the search incident to arrest exception. For the reasons discussed below, we
reverse the district court’s denial of Lee’s motion to suppress.
A.      The district court correctly concluded that the frisk was justified under Terry but
        that Officer Laurenson exceeded the scope of a permissible frisk when he opened
        the containers found on Lee.
        The Fourth Amendment to the United States Constitution protects “[t]he right of the
people to be secure in their persons, houses, and effects, against unreasonable searches and
seizures.” U.S. Const. amend IV. Evidence obtained in violation of the Fourth Amendment is
subject to the exclusionary rule, which requires unlawfully seized evidence to be excluded. 2 E.g.,
Wong Sun v. United States, 371 U.S. 471, 484–85 (1963); State v. Page, 140 Idaho 841, 846, 103

1
  “The Idaho Constitution offers protection for unlawful search and seizure as well. Idaho Const. art. I, § 17.
However, [Lee] does not argue that Idaho’s Constitution provides greater protection than the U.S. Constitution; thus,
our analysis is limited to the Fourth Amendment to the U.S. Constitution.” State v. Cohagen, No. 44800, slip op. at 4
(Idaho July 18, 2017) (citing In re Doe, 155 Idaho 36, 39 n.2, 304 P.3d 1202, 1205 n.2 (2013)).
2
  Deterrence of police misconduct is not the only purpose of the exclusionary rule under Idaho’s Constitution, rather
the exclusionary rule serves to: “1) provide an effective remedy to persons who have been subjected to an
unreasonable government search and/or seizure; 2) deter the police from acting unlawfully in obtaining evidence; 3)
encourage thoroughness in the warrant issuing process; 4) avoid having the judiciary commit an additional
constitutional violation by considering evidence which has been obtained through illegal means; and 5) preserve
judicial integrity.” Cohagen, No. 44800, slip op. at 7 (citing State v. Guzman, 122 Idaho 981, 993, 842 P.2d 660,
672 (1992)). However, Lee makes no argument concerning the Idaho Constitution.


                                                         4
P.3d 454, 459 (2004). The exclusionary rule requires the suppression of both “primary evidence
obtained as a direct result of an illegal search or seizure, . . . but also evidence later discovered
and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ ” Segura v. United
States, 468 U.S. 796, 804 (1984) (quoting Nardone v. United States, 308 U.S. 338, 341 (1939));
accord, e.g., Bishop, 146 Idaho at 811–12, 203 P.3d at 1210–11. “Searches conducted without a
warrant are considered per se unreasonable unless they fall into one of the ‘specifically
established and well-delineated exceptions’ to this general rule.” Bishop, 146 Idaho at 815, 203
P.3d at 1214; (quoting State v. Henderson, 114 Idaho 293, 295, 756 P.2d 1057, 1059 (1988)).
       One such exception is the Terry frisk, which permits a pat-down search for weapons
acknowledged by the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). Under Terry, an
officer may conduct a limited pat-down search, or frisk, “of the outer surfaces of a person’s
clothing all over his or her body in an attempt to find weapons.” Bishop, 146 Idaho at 818, 203
P.3d at 1217 (quoting Terry, 392 U.S. at 16, 30). “Such a frisk is only justified when, at the
moment of the frisk, the officer has reason to believe that the individual he or she is investigating
is ‘armed and presently dangerous to the officer or to others’ and nothing in the initial stages of
the encounter dispels the officer’s belief.” Id. (quoting Terry, 392 U.S. at 24, 30). “The test is an
objective one that asks whether, under the totality of the circumstances, a reasonably prudent
person would be justified in concluding that the individual posed a risk of danger.” Id. (citing
State v. Henage, 143 Idaho 655, 660–61, 152 P.3d 16, 21–22 (2007)); see also Terry, 392 U.S. at
27. The officer must indicate “specific and articulable facts which, taken together with rational
inferences from those facts,” and in light of the officer’s experiences, justify the officer’s
suspicion that the individual is armed and presently dangerous. Henage, 143 Idaho at 660, 152
P.3d at 21 (quoting Terry, 392 U.S. at 21).
       This Court has identified several factors that influence whether a reasonable person in the
officer’s position would conclude that a particular individual was armed and dangerous,
including:
       [W]hether there were any bulges in the suspect’s clothing that resembled a
       weapon; whether the encounter took place late at night or in a high crime area;
       and whether the individual made threatening or furtive movements, indicated that
       he or she possessed a weapon, appeared nervous or agitated, appeared to be under
       the influence of alcohol or illegal drugs, was unwilling to cooperate, or had a
       reputation for being dangerous.
Bishop, 146 Idaho at 819, 203 P.3d at 1218.


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         The district court concluded that the frisk was reasonable based on Lee’s reluctant
attitude and noncompliance with Officer Laurenson’s requests, as well as Lee’s previous
encounter with Officer Laurenson, where Lee ran when told he would be searched for drugs.3
Here, although Lee was not violent with Officer Laurenson, he was uncooperative. Lee did not
initially comply with Officer Laurenson’s several requests to go to the front of the patrol car.
Further, although Officer Laurenson may not have noticed the bulge until after he conducted the
frisk, when he asked Lee whether he had any weapons, Lee moved his hand towards his pocket
before stating whether he did or did not. Therefore, although an officer’s “inchoate and
unparticularized suspicion or ‘hunch,’ ” for safety is not enough to justify a frisk, id., (quoting
Terry, 392 U.S. at 27), the specific and articulable facts in this case, taken together with rational
inferences from those facts, and in light of Officer Laurenson’s experiences, justified Officer
Laurenson’s suspicion that Lee was armed and dangerous.
         However, Officer Laurenson exceeded the permissible scope of the Terry frisk when he
opened the containers, believing they contained drugs, not weapons.
         [T]he permissible scope of a pat-down search for weapons is limited to the
         minimum intrusion necessary to reasonably assure the officer that the suspect
         does not have a weapon. If the officer is unable to make an objectively reasonable
         determination that an object causing a bulge under a person’s clothing is not a
         weapon by feeling its size and density, the officer is entitled to further invade the
         person’s privacy only to the extent necessary that such a determination can be
         made.
State v. Watson, 143 Idaho 840, 845, 153 P.3d 1186, 1191 (Ct. App. 2007).
         Once an officer is satisfied that an object found on the individual’s person does not
contain a weapon, the officer no longer has a valid reason to further invade the object. In State v.
Faith, the officers performed a Terry frisk on the defendant, found an Altoids tin on his person,
and then opened the tin to find drug residue and paraphernalia. 141 Idaho 728, 729, 117 P.3d
142, 143 (Ct. App. 2005). The Court of Appeals concluded that the removal of the tin violated
the defendant’s Fourth Amendment rights because “[a]fter satisfying themselves that the item
was a container and not a weapon . . . the officers had no valid reason to further invade [the
3
  Lee supports his argument, that Officer Laurenson’s frisk was unreasonable, by arguing that the district court
clearly erred in two of its factual findings that are relevant to this analysis: First, the district court found that Lee did
not verbally respond when Officer Laurenson asked if he was carrying any weapons; and second, the district court
found that Officer Laurenson observed a bulge in Lee’s front pocket before he began the frisk. However, according
to Lee, Lee did respond to Officer Laurenson’s question, and Officer Laurenson did not observe the bulge in Lee’s
pocket until after he began the frisk. Our conclusion that the frisk exceeded the scope of Terry obviates the need to
address Lee’s assertions that the district court erred in its factual finding.


                                                             6
defendant’s] right to be free of police intrusion absent reasonable cause to arrest him.” Id. at 730,
117 P.3d at 144. The court further explained that “even if the officers were justified in removing
the tin for their own protection . . . once the container was in the officers’ possession, the officers
no longer had reason to believe that it posed a threat to them in either respect.” Id.
       Similarly, in this case, Officer Laurenson exceeded the permissible scope of the Terry
frisk when he opened the containers, because he did not believe the containers posed a threat.
Officer Laurenson testified that based on his drug training, he immediately recognized that the
items might contain contraband. Although Officer Laurenson was permitted to conduct a pat-
down frisk of Lee’s outer clothing for weapons, once Officer Laurenson opened the containers,
he exceeded the scope of the permissible Terry frisk. Thus, the warrantless opening of the
containers violated Lee’s right against unreasonable searches, unless an exception to the warrant
requirement applies. The district court found that the search incident to arrest exception justified
the search.
B.     The district court erred in concluding that the search of Lee’s person was a
       permissible search incident to arrest.
       The second well-recognized exception to the warrant requirement applicable in this case
is the search incident to arrest. Pursuant to the search incident to arrest exception, law
enforcement officers may search an arrestee incident to a lawful custodial arrest. Virginia v.
Moore, 553 U.S. 164, 176–77 (2008); United States v. Robinson, 414 U.S. 218, 235–36 (1973);
see also State v. Baxter, 144 Idaho 672, 680, 168 P.3d 1019, 1027 (Ct. App. 2007). Further, “so
long as the search and arrest are substantially contemporaneous, and the fruits of the search are
not required to establish probable cause for the arrest, the search need not precisely follow the
arrest in order to be incident to that arrest.” State v. Johnson, 137 Idaho 656, 662, 51 P.3d 1112,
1118 (Ct. App. 2002) (quoting State v. Crabb, 107 Idaho 298, 304, 688 P.2d 1203, 1209 (Ct.
App. 1984)).
       Lee contends that the search of the containers found in Lee’s pocket was not permitted as
a search incident to arrest for two reasons. First, the probable cause for the arrest was provided
by the fruits of the search because Officer Laurenson did not arrest Lee for driving without
privileges either prior to or after the search and Lee was not, and could not, have been arrested
for possession of a controlled substance prior to the search of the containers found in his pockets.
Second, the search of the containers did not implicate either of the historical rationales
underlying the search incident to arrest exception—officer safety and evidence preservation—


                                                  7
because (1) Officer Laurenson stated that he would issue Lee a citation for the driving offense;
and (2) due to the de minimis nature of the offense, Officer Laurenson knew no further evidence
of driving without privileges would be found on Lee’s person or in the containers.
        The State, on the other hand, contends that for a search to fall within the search incident
to arrest exception all that is required is that probable cause for any arrestable offense exists prior
to the search and that the search be substantially contemporaneous to the arrest—regardless of
the offense for which one is arrested, and even if the officer is neither making nor contemplating
an actual arrest.
        The threshold question involves probable cause. An officer may perform a warrantless
search only incident to an arrest that is lawful. “In conformity with the rule at common law, a
warrantless arrest by a law officer is reasonable [and lawful] under the Fourth Amendment where
there is probable cause to believe that a criminal offense has been or is being committed.”
Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
        In this case, Officer Laurenson initially had probable cause to arrest Lee for driving
without privileges before he searched the containers, because he saw Lee drive and confirmed
Lee was without driving privileges. Thus, the marijuana and methamphetamine discovered
during the search were not used to establish probable cause to arrest Lee.
        However, the question still remains: When Officer Laurenson established that he was not
going to arrest Lee, and rather was only going to issue a citation, could the officer still search
Lee’s person “incident to arrest” because he could have arrested him for driving without
privileges, but chose not to?
        The United States Supreme Court has repeatedly reaffirmed that warrantless searches
incident to a lawful arrest are justified by two historical rationales: “(1) the need to disarm the
suspect in order to take him into custody, and (2) the need to preserve evidence for later use at
trial.” Knowles v. Iowa, 525 U.S. 113, 116 (1998) (citing Robinson, 414 U.S. at 234).
        The United States Supreme Court laid down the “proper extent” of a search incident to a
lawful, custodial arrest in Chimel v. California, 395 U.S. 752, 762 (1969). The Court stated that,
due to officer safety interests, “[w]hen an arrest is made, it is reasonable for the arresting officer
to search the person arrested in order to remove any weapons that the latter might seek to use in
order to resist arrest or effect his escape.” Id. at 762–63. The Court similarly recognized that “it
is entirely reasonable for the arresting officer to search for and seize any evidence on the



                                                  8
arrestee’s person in order to prevent its concealment or destruction.” Id. at 763. The Court
clarified that the area of such search includes the area “ ‘within [the arrestee’s] immediate
control’—construing that phrase to mean the area from within which he might gain possession of
a weapon or destructible evidence.” Id.
          Though Chimel failed to address the issue of whether the bare fact of probable cause and
an arrest justified the search, the Court later answered this question by announcing that all
officers are entitled to search incident to a “full custodial arrest” regardless of the likelihood that
the search will reveal a dangerous weapon or evidence material to the prosecution of the offense.
Robinson, 414 U.S. at 236; Gustafson v. Florida, 414 U.S. 260, 265 (1973).
          More recently, in Knowles, the United States Supreme Court clarified that a warrantless
search of a vehicle pursuant to a citation, rather than an arrest, violated the Fourth Amendment.
525 U.S. at 119. In Knowles, defendant Knowles was stopped for speeding. Id. at 114. Under
Iowa law, if an officer observes an individual committing a traffic violation, the officer is
authorized to either arrest the individual or issue a citation. Id. at 115. The officer chose to issue
Knowles a citation—and did in fact issue him a citation—in lieu of an arrest. Id. at 114. The
officer then conducted a full search of Knowles’ car with neither consent nor probable cause for
a different offense. Id. at 114–15. The officer found drugs and then arrested Knowles. Id. In
upholding the search, the Iowa Supreme Court relied upon an Iowa statute specifying that “the
issuance of a citation in lieu of an arrest ‘does not affect the officer’s authority to conduct an
otherwise lawful search,’ ” 4 interpreting this statute to allow a search incident to citation. Id. at
115.
          The Court reversed, reasoning that the two primary historical justifications for incident
searches set out in Chimel—disarming an arrestee and preserving evidence—did not justify the
search of Knowles once the citation was issued. Id. at 118.
                 We have recognized that the first rationale—officer safety—is “ ‘both
          legitimate and weighty,’ ” Maryland v. Wilson, 519 U.S. 408, 412, 117 S.Ct. 882,
          137 L.Ed.2d 41 (1997) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110, 98
          S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) ). The threat to officer safety from
          issuing a traffic citation, however, is a good deal less than in the case of a
          custodial arrest. In Robinson, we stated that a custodial arrest involves “danger to
          an officer” because of “the extended exposure which follows the taking of a
          suspect into custody and transporting him to the police station.” 414 U.S. at 234–
          235, 94 S.Ct. 467. We recognized that “[t]he danger to the police officer flows
4
    Iowa Code Ann. § 805.1(4).


                                                   9
       from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and
       not from the grounds for arrest.” Id., at 234, n. 5, 414 U.S. 218, 94 S.Ct. 467, 38
       L.Ed.2d 427. A routine traffic stop, on the other hand, is a relatively brief
       encounter and “is more analogous to a so-called ‘Terry stop’ . . . than to a formal
       arrest.” Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317
       (1984).
Id. at 117. Similarly, with respect to evidence preservation, Knowles reasoned that “[o]nce
Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute
that offense had been obtained. Id. at 118. No further evidence of excessive speed was going to
be found on the person of the offender or in the passenger compartment of the car.” Id.
       Here, the State seeks to distinguish Knowles from this case because the search in Knowles
took place after the officer had issued a citation. However, Knowles makes it clear that the search
incident to arrest is not so absolute that it extends to every traffic stop for which there is probable
cause. While it is true that no citation was issued in this case, the facts of the Knowles case and
of this case are almost indistinguishable. Here, like Knowles, Lee was temporarily stopped for a
traffic offense—driving without privileges in this case and speeding in Knowles. Like Knowles,
the officer determined that Lee would not be arrested, but would instead be issued a citation.
Like Knowles, the stop of Lee offered no additional probable cause to give the detaining officer
reason to search Lee. The only difference between Knowles and this case is that Knowles was
issued a citation before the search. However, the distinction that Knowles was issued a citation
before the search, but Lee was not, is meaningless when considering the historical rationales
underlying the search incident to arrest exception because Officer Laurenson already said that he
would issue Lee a citation for the traffic offense.
       Therefore, Lee correctly contends that the distinction between actually issuing a citation
and stating that a citation will be issued is a distinction without a difference because the
historical rationales explained in Chimel are not present in both situations—when a citation is
actually issued and when an officer states that he is going to issue a citation. Regarding evidence
preservation, all the evidence that was needed to issue Lee a citation for driving without
privileges had already been obtained before the search. Thus, no further evidence of driving
without privileges would be found in Lee’s containers. Regarding officer safety, Officer
Laurenson had already frisked Lee for weapons, and Officer Laurenson knew no other weapons
would be found in the containers because, based on his experience and training, he immediately
recognized that the containers might contain contraband.


                                                  10
       In sum, Officer Laurenson had probable cause to arrest Lee for driving without privileges
prior to the search. However, Officer Laurenson told Lee that he would issue him a citation for
that offense instead. Yet, instead of actually writing the citation, Officer Laurenson searched the
containers found on Lee’s person, finding drug paraphernalia. Officer Laurenson then decided to
arrest Lee instead of issuing him the citation. Lee was arrested and charged with driving without
privileges as well as several drug possession charges. Although the arrest was substantially
contemporaneous to the search, once it was clear that an arrest was not going to take place, the
historical rationales justifying the search were no longer present.
       Decisions from other jurisdictions support the rationale that the search incident to arrest
exception should not apply when no arrest is to take place. “A search incident to arrest need not
necessarily occur after formal arrest to be valid, but the argument that the search was incident to
arrest becomes more strained when the facts show that a defendant would not have been arrested
but for the fact that the search produced evidence of a crime . . . .” United States v. Davis, 111 F.
Supp. 3d 323, 334 (E.D.N.Y. 2015).
       In People v. Reid, an officer pulled over a vehicle for driving erratically, and
subsequently developed probable cause to arrest the driver for driving while intoxicated. 26
N.E.3d 237, 238 (N.Y. 2014). The officer subsequently performed a pat-down of the driver,
found a switch-blade knife, and then arrested the driver. Id. At the driver’s suppression hearing,
the officer testified that he was not going to arrest the driver for driving while intoxicated; rather
he only made the decision to arrest after finding the knife in the pat-down search. Id. The court
found that the search could not be justified as incident to arrest stating, “[i]t 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.” Id. at 239. The court went on to say that “If a search could be justified by an arrest that, but
for the search, would never have taken place, the Supreme Court would not have
decided Knowles in the way it did.” Id. at 240.
       Similarly, in State v. Taylor, officers approached a man drinking in a park, intending to
issue a citation for that offense. 808 P.2d 324, 324 (Ariz. Ct. App. 1990). One officer searched
the defendant and found hashish, and subsequently arrested the defendant. Id. Both officers
agreed that if the hashish had not been found during the search, the defendant would have been
free to leave. Id. On appeal, the court addressed “whether officers are free to search anyone they



                                                  11
might arrest but have no intention of arresting under a search incident to arrest theory.” Id. The
court held “they may not.” Id. The court went on to say,
        [i]t would be obviously destructive of the privacy of many if police could justify searches
        on the basis of charges they never intended to pursue in the hope that the search would
        turn up something they could pursue. That would invite pretextual arrests and incident
        searches, with a custodial arrest to follow if something was found and release to follow
        otherwise.

Id. at 325.
        Recently, the California Supreme Court held in People v. Macabeo, that “. . . Rawlings
does not stand for the broad proposition that probable cause to arrest will always justify a search
incident as long as an arrest follows. Otherwise, Knowles would have been decided differently.”
384 P.3d 1189, 1197 (Cal. 2016). The court explained that the “[p]eople’s expansive
understanding of Rawlings . . . is inconsistent with Chimel” and “in tension with the reasoning in
Knowles[—officer safety and evidence preservation].” Id. at 1195–96. The court concluded,
“Once it [is] clear that an arrest [is] not going to take place, the justification for a search incident
to arrest is no longer operative.” Id. at 1197.
        We agree with the rationale adopted by the courts in Reid, Taylor, and Macabeo. The
reasonableness of a search is determined by the totality of the circumstances, and a search
incident to arrest is not reasonable when an arrest is not going to occur. We determine if an arrest
is going to occur based on the totality of the circumstances, including the officer’s statements.
While the subjective intent of an officer is usually not relevant in Fourth Amendment analysis,
statements made by the officer of his intentions along with other objective facts are relevant in
the totality of circumstances as to whether an arrest is to occur. 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.
        Here, Officer Laurenson told Lee he would get a citation for driving without privileges. It
was only after Officer Laurenson searched Lee and subsequently the containers that Officer
Laurenson decided to arrest Lee. Because the totality of the circumstances, including Officer
Laurenson’s statement that Lee was to get a citation, show that no arrest was to occur prior to
finding marijuana and methamphetamine during the search, the search that occurred was a search
incident only to an intended citation. Therefore, the search incident to arrest exception to the
warrant requirement cannot justify the search. Thus, the search was unlawful, and therefore the



                                                  12
fruits of the search must be suppressed. Accordingly, the district court’s denial of Lee’s motion
to suppress must be reversed.
                                     V.    CONCLUSION
       We vacate the conviction, reverse the district court’s denial of Lee’s motion to suppress,
and remand for further proceedings consistent with this opinion.
       Justices EISMANN, JONES, HORTON and BRODY, CONCUR.




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