                   FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                  No. 17-10252
            Plaintiff-Appellee,
                                          D.C. No.
              v.                   3:16-cr-00251-WHA-1

LAMAR JOHNSON,
         Defendant-Appellant.               OPINION




       Appeal from the United States District Court
         for the Northern District of California
        William Alsup, District Judge, Presiding

       Argued and Submitted September 11, 2018
               San Francisco, California

                   Filed January 9, 2019

 Before: J. Clifford Wallace, Johnnie B. Rawlinson, and
             Paul J. Watford, Circuit Judges.

              Opinion by Judge Wallace;
             Concurrence by Judge Watford
2                 UNITED STATES V. JOHNSON

                          SUMMARY *


                          Criminal Law

    The panel affirmed a conviction and sentence for
multiple crimes in a case in which the district court denied
the defendant’s motion to suppress evidence recovered from
the warrantless searches of his person and car and the
warrant search of his house.

    The panel held that the search of the defendant’s person
was constitutional. The panel addressed whether two well-
established principles—(1) that a search incident to a lawful
arrest does not necessarily need to follow the arrest to
comport with the Fourth Amendment and (2) that an
officer’s subjective reasons for making the arrest need not be
the criminal offense as to which the known facts provide
probable cause—may coincide without violating the Fourth
Amendment. The panel explained that the justifications for
the search incident to lawful arrest exception do not lose any
of their force in the context of a search performed by an
officer who has probable cause to arrest and shortly
thereafter does arrest; and that so long as the search was
incident to and preceding a lawful arrest—which is to say
that probable cause to arrest existed and the search and arrest
are roughly contemporaneous—the arresting officer’s
subjective crime of arrest need not have been the crime for
which probable cause existed. The panel held that Knowles
v. Iowa, 525 U.S. 113 (1998), does not prevent a search
incident to a lawful arrest from occurring before the arrest

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. JOHNSON                      3

itself, even if the crime of arrest is different from the crime
for which probable cause existed. As for the defendant’s
argument that this standard invites pretextual and
discriminatory searches, the panel did not think that this case
is materially different from cases where the search precedes
the arrest and the arresting officer’s subjective crime of
arrest is the same as the crime for which probable cause
existed. The panel rejected the defendant’s argument that,
even applying this standard, the search of his person was
unconstitutional because the officer did not have probable
cause to arrest him. The panel wrote that the smell of fresh
and burnt marijuana in the defendant’s car, along with plastic
baggies in the glove compartment, and the defendant’s
unusual search of the glove compartment, indicated a fair
probability that the defendant had committed, or was about
to commit, the offense of marijuana transportation.

   The panel held that the search of the defendant’s vehicle
was justified under the automobile exception to the warrant
requirement because when the officer approached the car, he
immediately smelled a combination of burnt and fresh
marijuana.

    The panel rejected the defendant’s challenges to the
validity of the magistrate’s warrant to search his house. The
panel held that an officer’s affidavit provided the substantial
basis for the magistrate to determine that probable cause
existed, that the confidential informant’s reliability is largely
beside the point, and that any omission from the affidavit
was immaterial.

    The panel rejected the defendant’s argument that the
district court erred in increasing his offense level under
U.S.S.G. § 3B1.5 for using body armor during the
commission of the offense because “use” does not mean
4               UNITED STATES V. JOHNSON

simply wearing body armor. The panel wrote that there is
no reasonable way to construe the guidelines commentary
that would exclude wearing body armor from the definition
of “use.” The panel concluded that the district court did not
abuse its discretion by determining that the enhancement
should apply to the defendant.

    Concurring, Judge Watford joined the court’s opinion
because it faithfully applies the rule adopted in United States
v. Smith, 389 F.3d 944 (9th Cir. 2004) (per curiam), which
held that a warrantless search that precedes an arrest may
nonetheless fall within the search-incident-to-arrest
exception if “the search is conducted roughly
contemporaneously with the arrest” and probable cause to
arrest existed at the time of the search. Observing that many
courts have adopted the rule, but some have rejected it in
favor of a more circumscribed approach, Judge Watford
wrote that Smith falls on the wrong side of this divide and
should be overruled.


                         COUNSEL

Robin Packel (argued), Research and Writing Attorney;
Gabriela Bischof, Assistant Federal Public Defender; Steven
G. Kalar, Federal Public Defender; Office of the Federal
Public Offender, San Francisco, California; for Defendant-
Appellant.

Philip Kopczynski (argued), Assistant United States
Attorney; J. Douglas Wilson, Chief, Appellate Division;
Alex G. Tse, Acting United States Attorney; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellee.
                UNITED STATES V. JOHNSON                    5

                         OPINION

WALLACE, Circuit Judge:

    Lamar Johnson was stopped while driving and subjected
to a warrantless search of his person and car. One year later,
police conducted a warrant search of his home. The fruits of
these searches led to Johnson’s indictment and conviction
for multiple crimes. Johnson appeals, challenging his
conviction and sentence. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

                              I.

     On August 7, 2015, Lamar Johnson was stopped while
driving by Sergeant Clint Simmont of the East Palo Alto
Police Department. As Simmont spoke with Johnson, he
smelled a combination of burnt and fresh marijuana, which
he recognized through his work patrolling East Palo Alto and
on the San Mateo County Narcotics Task Force. Simmont
asked Johnson for his registration and proof of insurance, to
which Johnson responded that he was borrowing the car and
did not have registration or insurance information. Simmont
asked if Johnson was sure, and Johnson opened the glove
box as if to check. Simmont observed empty plastic bags and
pill bottles in the glove box and noticed that Johnson “moved
his hand around on the few items that were in there, but he
didn’t actually manipulate any items.” This manner was
“inconsistent with the way someone would genuinely search
for paperwork.” Simmont then learned from a police
dispatch agent that Johnson had been arrested for parole
violations, which indicated to Simmont that Johnson had
been convicted of a felony.

    Simmont asked Johnson to step out of the vehicle and
searched his person. Simmont discovered that Johnson was
6               UNITED STATES V. JOHNSON

wearing a bulletproof vest and arrested him for being a felon
in possession of body armor. After backup police units
arrived, Simmont and the other officers searched Johnson’s
car and discovered a loaded handgun, a pill bottle containing
acetaminophen/hydrocodone pills, plastic bags, scales, and
concentrated cannabis. Johnson was transported to a police
station, where a second search of his person revealed
additional controlled substances.

    The following year, a separate investigation in San
Mateo County linked Johnson to controlled substance
distribution. On March 16, 2016, a judge in San Mateo
Superior Court issued a warrant to search Johnson, a vehicle
allegedly belonging to him, and a residence in east Palo Alto
allegedly belonging to him. Detective Christopher Sample
subscribed and swore to an affidavit in support of the
warrant.

    According to his affidavit, Sample met with a
confidential informant (CI) who purportedly could call a
man named “Lamar” at a specific phone number and arrange
a sale of cocaine base. The CI called the number and a male
voice answered the phone and gave a location to meet. Police
observed the CI meet Johnson at that location and exchange
items. Sample then tested the substance the CI received from
Johnson and identified it as cocaine. Sample followed
Johnson from the exchange and stopped him in front of a
house for a minor traffic violation. Johnson’s driver license
stated he lived at the house where they had stopped, and
Johnson told Sample that it was his house. Sample then
observed Johnson entering the house before he drove away.

    Sample then arranged a second buy through the same CI.
Again, the CI called the phone number, the man provided a
location to meet, and the CI exchanged items with Johnson
after they met at that location. Sample tested the substance
                UNITED STATES V. JOHNSON                     7

the CI received from Johnson and it again tested positive as
cocaine. Again, police followed Johnson and observed him
return to the same home. The first buy occurred within the
20 days preceding the affidavit, and the second buy within
10 days.

    Sample’s affidavit also provided information about his
training and experience. Sample averred that drug traffickers
who sold cocaine base often purchased it in bulk quantities
and stored it in their cars and homes. Based on the factual
information recited above and Sample’s description of his
training and experience, the superior court issued a search
warrant. The search of Johnson’s home recovered a firearm,
ammunition, scales, plastic bags, pills in bottles, and cocaine
base.

     Johnson was indicted on nine counts of drug and firearm
offenses. Before trial, Johnson moved to suppress all
evidence recovered from the warrantless search of his person
and car and the warrant search of his house. The district court
denied the motion in two separate orders. Johnson then
stipulated to certain facts and the district court held a bench
trial. The government dismissed two counts and the district
court convicted Johnson on the remaining seven. At
sentencing, the district court increased Johnson’s offense
level by four levels because he had used body armor during
the commission of a drug trafficking crime.

   Johnson appeals, arguing that the district court erred in
denying his motion to suppress and by applying the body
armor enhancement to his sentence.

                              II.

   “We review de novo the district court’s denial of a
motion to suppress. We review the district court’s
8               UNITED STATES V. JOHNSON

underlying factual findings for clear error.” United States v.
Camou, 773 F.3d 932, 937 (9th Cir. 2014) (citations
omitted).

    “We review a district court’s construction and
interpretation of the Guidelines de novo and its application
of the Guidelines to the facts for abuse of discretion.” United
States v. Simon, 858 F.3d 1289, 1293 (9th Cir. 2017) (en
banc) (alteration in original removed) (quoting United States
v. Popov, 742 F.3d 911, 914 (9th Cir. 2014)).

                             III.

    Johnson argues that the warrantless search of his person,
the warrantless search of his car, and the warrant search of
his home all violated the Fourth Amendment. We address
each argument in turn.

                              A.

     The search incident to a lawful arrest exception to the
warrant requirement allows a police officer to search an
arrestee’s person and the area within the arrestee’s
immediate control. Arizona v. Gant, 556 U.S. 332, 339
(2009). It is well-established in this circuit that a search,
incident to a lawful arrest, does not necessarily need to
follow the arrest to comport with the Fourth Amendment.
United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004)
(citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)).
Instead, probable cause to arrest must exist at the time of the
search, and the arrest must follow “during a continuous
sequence of events.” Id. If these conditions are satisfied, the
fact that the arrest occurred shortly after the search does not
affect the search’s legality.
                 UNITED STATES V. JOHNSON                     9

    It is also well-established that the mindset of an arresting
officer is usually irrelevant to a seizure’s legality. See
Devenpeck v. Alford, 543 U.S. 146, 153 (2004); Arkansas v.
Sullivan, 532 U.S. 769, 771 (2001) (per curiam); Atwater v.
City of Lago Vista, 532 U.S. 318, 354 (2001); Whren v.
United States, 517 U.S. 806, 813 (1996). Instead, the
officer’s state of mind matters only to the extent that
probable cause must be based on “the facts known to the
arresting officer at the time of the arrest.” Devenpeck, 543
U.S. at 152. Thus, when the officer’s known facts provide
probable cause to arrest for an offense, the officer’s
“subjective reason for making the arrest need not be the
criminal offense as to which the known facts provide
probable cause.” Id. at 153.

    The question presented in this case is whether these two
well-established principles may coincide without violating
the Fourth Amendment. Johnson contends that to do so
would create a “search incident to probable cause” rule,
allowing officers to search a person whenever probable
cause to arrest exists. Johnson argues that the existence of
such a rule will cause widespread fishing expeditions that are
pre-textual and discriminatory.

    We conclude that the search of Johnson’s person was
constitutional. The search incident to a lawful arrest
exception is “based upon the need to disarm and to discover
evidence,” but it “does not depend on what a court may later
decide was the probability in a particular arrest situation that
weapons or evidence would in fact be found upon the person
of the suspect.” United States v. Robinson, 414 U.S. 218, 235
(1973). Thus, we do not balance Johnson’s interests in not
being searched against Sergeant Simmont’s interest in
searching him. Instead we evaluate whether, as a general
matter, the justifications for the search incident to lawful
10               UNITED STATES V. JOHNSON

arrest exception retain force in the context of a search
performed by an officer who has probable cause to arrest and
shortly thereafter does arrest. See Knowles v. Iowa, 525 U.S.
113, 117–19 (1998) (evaluating whether the historical
justifications for searches incident to arrest applied to decide
whether to recognize a “search incident to citation”
exception).

    The justifications for the exception do not lose any of
their force in this context. As explained in Robinson, and
reaffirmed in Knowles, when an officer begins an encounter
with another person, and probable cause to arrest exists,
danger to the police officer “flows from the fact of the arrest,
and its attendant proximity, stress, and uncertainty, and not
from the grounds for arrest.” Robinson, 414 U.S. at 234 n.5
(emphasis added); see also Knowles, 525 U.S. at 117
(quoting same). As in other contexts then, the precise crime
for which an officer has probable cause is irrelevant. Cf.
Devenpeck, 543 U.S. at 153 (“[An officer’s] subjective
reason for making the arrest need not be the criminal offense
as to which the known facts provide probable cause”). So
long as the search was incident to and preceding a lawful
arrest—which is to say that probable cause to arrest existed
and the search and arrest are roughly contemporaneous,
Smith, 389 F.3d at 951—the arresting officer’s subjective
crime of arrest need not have been the crime for which
probable cause existed.

    Johnson argues that this result is inconsistent with
Knowles, in which the Supreme Court held that warrantless
searches preceding an arrest but following a citation are
unconstitutional. See 525 U.S. at 118. Knowles is
distinguishable. In that case, the issuance of the traffic
citation for speeding resolved the encounter’s danger, and
“the possibility that an officer would stumble onto evidence
                UNITED STATES V. JOHNSON                    11

wholly unrelated to the speeding offense” was too remote to
justify the intrusion. Id. In cases such as the one before us,
the danger attendant to the custodial arrest remains until the
officer decides to arrest, cite, or warn, and probable cause
provides a basis for the officer to search for evidence of that
crime. We therefore join our sister circuits in holding that
Knowles does not prevent a search incident to a lawful arrest
from occurring before the arrest itself, even if the crime of
arrest is different from the crime for which probable cause
existed. See United States v. Diaz, 854 F.3d 197, 206–07 (2d
Cir. 2017); United States v. Coleman, 458 F.3d 453, 458 (6th
Cir. 2006); United States v. Sanchez, 555 F.3d 910, 921–22
(10th Cir. 2009).

    As for Johnson’s argument that this standard invites
pretextual and discriminatory searches, we do not think that
this case is meaningfully different from cases where the
search precedes the arrest and the arresting officer’s
subjective crime of arrest is the same as the crime for which
probable cause existed. The safeguards of probable cause
and an actual custodial arrest, here as there, are what protect
individuals’ Fourth Amendment rights. To the extent
Johnson argues that those safeguards are insufficient, his
argument is properly directed at the search-preceding-arrest
doctrine more generally, and this panel has no power to
overrule circuit precedent, let alone that of the Supreme
Court. See Rawlings, 448 U.S. at 111 (“Where the formal
arrest followed quickly on the heels of the challenged search
of petitioner’s person, we do not believe it particularly
important that the search preceded the arrest rather than vice
versa”).

    Johnson’s alternative argument is that, even applying
this standard, the search of his person was unconstitutional
because Simmont did not have probable cause to arrest. We
12              UNITED STATES V. JOHNSON

disagree. “‘[P]robable cause’ to justify an arrest means facts
and circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit
an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
This standard is met when there is a “fair probability” that a
crime has been committed. United States v. Smith, 790 F.2d
789, 792 (9th Cir. 1986). The smell of fresh and burnt
marijuana in Johnson’s car, along with the plastic baggies in
the glove compartment, and Johnson’s unusual search of the
glove compartment, indicated a “fair probability” that
Johnson had committed, was committing, or was about to
commit the offense of marijuana transportation. See CAL.
HEALTH & SAFETY CODE § 11360. The search prior to
Johnson’s arrest was therefore supported by probable cause.

                              B.

    When an arrestee is the recent occupant of a vehicle, the
arresting officer may search that vehicle if the arrestee is
unsecured and within reaching distance of the passenger
compartment, or if it is “reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle.”
Gant, 556 U.S. at 343 (quoting Thornton v. United States,
541 U.S. 615, 632 (2004) (Scalia, J., concurring in the
judgment)). Additionally, under the automobile exception, a
police officer may conduct a warrantless search of a vehicle
if there is probable cause to believe the vehicle contains
evidence of a crime. United States v. Faagai, 869 F.3d 1145,
1150 (9th Cir. 2017). The district court relied on both the
search incident-to-lawful-arrest exception and the
automobile exception to uphold the warrantless search of
Johnson’s car.
                UNITED STATES V. JOHNSON                   13

    We conclude that the search was justified under the
automobile exception, and therefore do not reach whether
the search was also justified as incident to Johnson’s arrest.
When Simmont approached Johnson’s car, he immediately
smelled a combination of burnt and fresh marijuana. This
provided probable cause for Simmont to search the vehicle.
See United States v. Barron, 472 F.2d 1215, 1217 (9th Cir.
1973) (“Further, the fact that an agent familiar with the odor
of marijuana, smelled such an odor emanating from the
automobile when he jumped in to stop it, alone was
sufficient to constitute probable cause for a subsequent
search for marijuana”). Johnson argues that the search of his
car was nonetheless illegal because it was the fruit of the
illegal search of his person. But, as we have already
explained, that search comported with the Fourth
Amendment. There being no poisonous tree, the search of
Johnson’s car cannot have been the fruit of an illegal search.

                             C.

     When reviewing the validity of a search warrant issued
by a magistrate, we give “great deference” to the
magistrate’s probable cause determination, and will uphold
the warrant’s validity if the magistrate was supplied “with a
substantial basis for determining the existence of probable
cause.” United States v. Leon, 468 U.S. 897, 914–15 (1984)
(first quoting Spinelli v. United States, 393 U.S. 410, 419
(1969), then quoting Illinois v. Gates, 462 U.S. 213, 239
(1983)). “In borderline cases, preference will be accorded to
warrants and to the decision of the magistrate issuing it.”
United States v. Terry, 911 F.2d 272, 275 (9th Cir. 1990)
(quoting United States v. Martinez, 588 F.2d 1227, 1234 (9th
Cir. 1987)).

   Johnson attacks the warrant on three grounds. First, he
argues that Sample’s affidavit did not establish probable
14              UNITED STATES V. JOHNSON

cause that contraband would be found in his home. Second,
he argues that the affidavit did not establish the CI’s
reliability. Third, he argues that the affidavit omitted the
quantity of cocaine involved in the controlled buys,
misleading the magistrate into issuing the warrant. We
disagree with these arguments.

    As to probable cause, this case is controlled by United
States v. Terry. In that case, we held that an officer’s “first
hand knowledge” of the defendant’s possession of controlled
substances, combined with the officer’s “experience with
other drug dealers,” provided the “substantial basis” for the
magistrate to determine that probable cause existed. Id. at
276. The same holds true here. Sample averred that he had
twice observed Johnson distribute cocaine in the 20 days
preceding the warrant, including once within 10 days. He
also averred that, after the buys, he observed Johnson return
to the address listed on the warrant application, which
Johnson entered and told police was “his house.” These
facts—combined with Sample’s description of how drug
traffickers buy cocaine in bulk, sell in small amounts, and
use their homes as store caches for the remainder—provided
a substantial basis for the San Mateo Superior Court to issue
the warrant. See id. at 275–76.

    As to the CI’s reliability, this argument is largely beside
the point. As we have just explained, the basis for probable
cause in the affidavit was Sample’s “first hand knowledge”
of Johnson’s drug dealing and his “experience with other
drug dealers” in how and where a confirmed drug dealer
might store contraband. See id. at 276. The warrant was not
issued, unlike in other cases where informant credibility is
crucial, based on the CI’s tip that drugs would be found in
Johnson’s home, but on Sample’s observations of the
controlled buys and Johnson’s actions thereafter. The CI’s
                 UNITED STATES V. JOHNSON                    15

only role in establishing probable cause was therefore to
effectuate the controlled buys, and the CI did establish
reliability in this regard because police observed the buys,
corroborating the CI’s information.

    Finally, as to the omission of the size of the cocaine rocks
sold, we conclude that any omission was immaterial to the
magistrate’s decision. A defendant challenging omissions
from a warrant must make a substantial showing that “the
affiant intentionally or recklessly omitted facts required to
prevent technically true statements in the affidavit from
being misleading.” United States v. Stanert, 762 F.2d 775,
781 (9th Cir. 1985). Johnson has not met that standard here.
Assuming arguendo that Sample’s omission of the precise
sizes of the cocaine rocks was intentional or reckless, it was
clear from the affidavit that the controlled buys involved
small amounts of cocaine. Therefore, inclusion of those facts
would not have changed the meaning of any statement in the
affidavit.

                              IV.

    U.S.S.G. § 3B1.5 provides: “If … the defendant was
convicted of a drug trafficking crime or a crime of violence;
and … the defendant used body armor during the
commission of the offense, in preparation for the offense, or
in an attempt to avoid apprehension for the offense, increase
by 4 levels.” U.S.S.G. § 3B1.5(1), (2)(B). The district court
increased Johnson’s offense level by four levels under this
provision because Johnson was wearing a bulletproof vest
during the 2015 traffic stop. Johnson argues that the district
court erred in doing so because “use” does not mean simply
wearing body armor.

     First interpreting the meaning of the guidelines de novo,
we     reject Johnson’s construction argument. The
16              UNITED STATES V. JOHNSON

commentary to the guidelines states that “‘[u]se’ means (A)
active employment in a manner to protect the person from
gunfire; or (B) use as a means of bartering. ‘Use’ does not
mean mere possession (e.g., ‘use’ does not mean that the
body armor was found in the trunk of the car but not used
actively as protection).” Id. § 3B1.5, cmt. (n.1). There is no
reasonable way to construe this language that would exclude
wearing body armor from the definition of “use.” Wearing
body armor is the precise means by which a person
“employ[s] [the body armor] in a manner to protect the
person from gunfire.” Accordingly, Johnson “used” the body
armor within the meaning of the guidelines simply by
wearing it. Accord United States v. Juarez, 866 F.3d 622,
633 (5th Cir. 2017) (stating “this Court and others have only
applied the body-armor enhancement where the defendant
committed a crime wearing body armor” and collecting
cases (emphasis in original)); United States v. Barrett, 552
F.3d 724, 727–28 (8th Cir. 2009) (upholding enhancement
where defendant wore body armor at party).

    Next reviewing the district court’s application of the
guidelines to the facts of this case, there was no abuse of
discretion. Johnson argues that he had an alternative
explanation for why he wore the body armor. But Johnson
also had cocaine base, heroin, marijuana, and oxycodone on
his person while he wore the body armor, as well as a loaded
handgun, hydrocodone, plastic bags, scales, and
concentrated cannabis in his car. On these facts, the district
court did not abuse its discretion by determining that the
enhancement should apply because Johnson wore body
armor during a drug trafficking offense.

     AFFIRMED.
                 UNITED STATES V. JOHNSON                    17

WATFORD, Circuit Judge, concurring:

    I join the court’s opinion because it faithfully applies the
rule we adopted in United States v. Smith, 389 F.3d 944 (9th
Cir. 2004) (per curiam). There, we held that a warrantless
search that precedes an arrest may nonetheless fall within the
search-incident-to-arrest exception if “the search is
conducted roughly contemporaneously with the arrest” and
probable cause to arrest existed at the time of the search. Id.
at 952. This rule has not been universally embraced. Many
courts have adopted it, but some have rejected it in favor of
a more circumscribed approach. See Joshua Deahl,
Debunking Pre-Arrest Incident Searches, 106 Cal. L. Rev.
1061, 1086–87 (2018) (cataloguing the split in authority). In
my view, Smith falls on the wrong side of this divide and
should be overruled.

    Generally speaking, the police must obtain a warrant
before conducting a search of the “persons, houses, papers,
and effects” protected by the Fourth Amendment. The
Supreme Court has recognized exceptions to that
requirement when circumstances justifying the need to take
immediate action are present, such that obtaining a warrant
would be impracticable. In the case of searches incident to
arrest, the justification for dispensing with the warrant
requirement stems from “the fact of custodial arrest.” United
States v. Robinson, 414 U.S. 218, 236 (1973). An arrest
triggers two important government interests that create the
need for an immediate search: protecting officer safety and
preventing the destruction of evidence. Id. at 235. The
Court described those interests in Chimel v. California, 395
U.S. 752 (1969):

       When an arrest is made, it is reasonable for
       the arresting officer to search the person
       arrested in order to remove any weapons that
18              UNITED STATES V. JOHNSON

       the latter might seek to use in order to resist
       arrest or effect his escape. Otherwise, the
       officer’s safety might well be endangered,
       and the arrest itself frustrated. In addition, it
       is entirely reasonable for the arresting officer
       to search for and seize any evidence on the
       arrestee’s person in order to prevent its
       concealment or destruction.

Id. at 762–63. A lawful arrest also results in a reduction in
the arrestee’s Fourth Amendment privacy interests. Riley v.
California, 134 S. Ct. 2473, 2488 (2014). Together, the need
to conduct an immediate search and the suspect’s diminished
expectation of privacy render warrantless searches incident
to a lawful arrest categorically reasonable under the Fourth
Amendment. Robinson, 414 U.S. at 234–35.

    As the doctrinal underpinnings of the search-incident-to-
arrest exception suggest, the authority to conduct such a
search does not arise until an arrest is actually made. If
confirmation of that fact were needed, though, the Supreme
Court’s decisions in Cupp v. Murphy, 412 U.S. 291 (1973),
and Knowles v. Iowa, 525 U.S. 113 (1998), provide it.

    In Cupp, the suspect in a murder case came to the police
station voluntarily. Although the police had probable cause
to arrest him, they did not place him under arrest. 414 U.S.
at 293–94. Officers instead temporarily detained the suspect
just long enough to allow them to take fingernail scrapings,
which he was attempting to destroy in their presence. Given
these exigent circumstances, the Court held that a search of
this limited scope was reasonable. Id. at 295–96. But the
Court made clear that, because the suspect had not been
arrested, a more intrusive search of the type permitted
incident to arrest likely would have been prohibited. The
                UNITED STATES V. JOHNSON                   19

government interests that justify such a search, the Court
explained, were not fully implicated by a seizure that falls
short of an arrest:

        Where there is no formal arrest, as in the case
        before us, a person might well be less hostile
        to the police and less likely to take
        conspicuous, immediate steps to destroy
        incriminating evidence on his person. Since
        he knows he is going to be released, he might
        be likely instead to be concerned with
        diverting attention away from himself.
        Accordingly, we do not hold that a full
        [search incident to arrest] would have been
        justified in this case without a formal arrest
        and without a warrant.

Id. at 296.

    In Knowles, the officer had probable cause to arrest the
defendant for speeding but chose to issue a citation instead.
The officer nonetheless conducted a warrantless search of
the defendant’s car, which turned up illegal drugs. The
officer then arrested the defendant on drug-related charges.
525 U.S. at 114. The state courts upheld the validity of the
search, “reasoning that so long as the arresting officer had
probable cause to make a custodial arrest, there need not in
fact have been a custodial arrest.” Id. at 115–16. The
Supreme Court unanimously rejected that reasoning. The
Court held that issuance of a citation does not trigger either
of the government interests that justify a warrantless search
incident to arrest. The threat to officer safety is not as
pronounced when an officer issues a citation, in part because
the officer will not have the extended exposure to the suspect
that follows taking him into custody and transporting him to
20                 UNITED STATES V. JOHNSON

a police facility for booking. Id. at 117. Nor does the need
to preserve evidence arise, for once the officer issues the
traffic citation “all the evidence necessary to prosecute that
offense” will already have been obtained. Id. at 118. The
Court therefore refused to extend the search-incident-to-
arrest exception “to a situation where the concern for officer
safety is not present to the same extent and the concern for
the destruction or loss of evidence is not present at all.” Id.
at 119. 1

    I do not think our decision in Smith is consistent with
these precedents. We have allowed warrantless searches to
be conducted before an arrest is made, provided that the
officer has probable cause to arrest “independent of the fruits
of the search” and the arrest occurs shortly after the search
is conducted. 389 F.3d at 951. Under that rule, however,
the search in Knowles would have been permissible, because
the officer had probable cause to arrest the defendant for
speeding and he arrested the defendant shortly after the
search uncovered illegal drugs. It’s true that in Knowles the
officer had already issued a citation by the time the search
took place, which some courts have interpreted to mean that
a search incident to arrest is permitted so long as the officer
has not yet decided whether to arrest or cite the suspect. See,
e.g., United States v. Diaz, 854 F.3d 197, 206–08 (2d Cir.
2017); United States v. Pratt, 355 F.3d 1119, 1124–25 n.4
(8th Cir. 2004). What those courts have overlooked is that
the critical fact in Knowles was not the officer’s issuance of
the citation, but rather the absence of an arrest. That absence
is key because, as discussed above, the exigency that

     1
       Officers are not without recourse to protect themselves when
interacting with suspects prior to arrest. An officer may still perform a
protective “patdown” if the officer has reasonable suspicion to believe
that the suspect may be armed and dangerous. Knowles, 525 U.S. at 118
(citing Terry v. Ohio, 392 U.S. 1 (1968)).
                 UNITED STATES V. JOHNSON                    21

justifies a warrantless search in this context arises from the
fact of arrest, Robinson, 414 U.S. at 236, not from the
existence of probable cause to arrest.

    The rule we adopted in Smith is doctrinally unsound for
another reason: It makes the legality of the search dependent
upon events that occur after the search has taken place.
Under our rule, the same search conducted on the basis of
the same showing of probable cause is valid if the officer
arrests the suspect afterward, but becomes illegal if the
officer subsequently decides not to make an arrest (say,
because the search turns up nothing). See Menotti v. City of
Seattle, 409 F.3d 1113, 1153 (9th Cir. 2005). That approach
is at odds with the background principle that the
reasonableness of a search turns on “whether the officer’s
action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which
justified the interference in the first place.” Terry v. Ohio,
392 U.S. 1, 19–20 (1968). Beyond that, we should be
skeptical of any rule that provides officers with an incentive
to make an arrest they would not otherwise have made,
solely to insulate themselves from civil liability for violating
an individual’s Fourth Amendment rights.

    The firmest support for the rule we adopted in Smith
comes from Rawlings v. Kentucky, 448 U.S. 98 (1980), but
even that support is flimsy. The Supreme Court in Rawlings
did state that “[w]here the formal arrest followed quickly on
the heels of the challenged search of petitioner’s person, we
do not believe it particularly important that the search
preceded the arrest rather than vice versa.” Id. at 111. But
that language cannot fairly be read as having jettisoned the
requirement that an arrest occur before an officer may
conduct a search incident to arrest. At the time he was
searched, the defendant in Rawlings had plainly been
22               UNITED STATES V. JOHNSON

subjected to a Fourth Amendment seizure amounting to an
arrest, based on probable cause that existed beforehand. See
United States v. Powell, 483 F.3d 836, 846 (D.C. Cir. 2007)
(en banc) (Rogers, J., dissenting). As I read Rawlings, the
Court merely held that the search was not invalidated by the
fact that the “formal arrest” (handcuffing, etc.) occurred
shortly after the search took place, rather than before.

    Moreover, interpreting Rawlings to permit a pre-arrest
search, so long as an officer has probable cause to arrest,
seems to conflict with the Court’s recent decision in
Rodriguez v. United States, 135 S. Ct. 1609 (2015). That
case held that a traffic stop may not be “prolonged beyond
the time reasonably required to complete the mission of
issuing a ticket for the violation.” Id. at 1612 (internal
quotation marks and alteration omitted). As part of a traffic
stop’s mission, an officer may make traffic-code-related
inquiries, such as checking the driver’s license and
registration, see id. at 1615, and may take steps to ensure
officer safety, such as asking the driver and any passengers
to exit the vehicle. Maryland v. Wilson, 519 U.S. 408, 414–
15 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 110–11
(1977) (per curiam). But the Court has indicated that
conducting a search of the driver’s person ordinarily falls
outside the scope of what a routine traffic stop authorizes.
Knowles, 525 U.S. at 117.

    It’s not clear how that limitation can be squared with the
broad reading of Rawlings we adopted in Smith. In most
instances, an officer conducting a valid traffic stop will have
probable cause to believe that the driver has committed some
traffic infraction, which carries with it the latent authority to
arrest even if the infraction is a minor one that could not
result in jail time. See Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001). Thus, as long as the officer has not
                UNITED STATES V. JOHNSON                    23

yet issued a citation, there remains the possibility, however
remote, that the driver could be arrested for the infraction.
Under our holding in Smith, an officer in these circumstances
could presumably conduct a search “incident” to an arrest
for the traffic violation, knowing that if incriminating
evidence is found he can opt at that point to arrest the driver
and thereby validate the search. That regime would
authorize full-blown investigatory searches of the driver’s
person (and in some instances of the vehicle’s passenger
compartment as well) as a normal incident of any traffic
stop. Permitting such searches seems to me in obvious
tension with Rodriguez’s holding.

    Requiring that a custodial arrest occur before an officer
may conduct a search incident to arrest admittedly raises
difficult legal issues, since it’s not always clear when an
officer’s interference with a suspect’s Fourth Amendment
liberty interests ripens into an arrest. But we have a well-
developed body of Fourth Amendment case law to guide that
inquiry, see, e.g., Florida v. Royer, 460 U.S. 491, 503 (1983)
(plurality opinion); Dunaway v. New York, 442 U.S. 200,
212–13 (1979), which focuses on how a reasonable person
in the suspect’s shoes would view the nature of the intrusion,
Michigan v. Chesternut, 486 U.S. 567, 573–74 (1988);
Ochana v. Flores, 347 F.3d 266, 270 (7th Cir. 2003). That
focus makes sense in this context because the arrestee’s
perception that he has been placed under arrest is what
triggers the need for an immediate search, to ensure that the
arrestee cannot use any weapons to resist or escape and
cannot conceal or destroy any evidence on his person. The
officer’s subjective intent is of course irrelevant to the
existence of a custodial arrest, unless “that intent has been
conveyed to the person confronted.” Chesternut, 486 U.S.
at 575 n.7.
24              UNITED STATES V. JOHNSON

    If it turns out that an officer conducts a search
prematurely—i.e., before the suspect was in fact arrested for
Fourth Amendment purposes—that will not invariably result
in suppression of any evidence discovered during the search.
The government can still attempt to prove, under the
inevitable discovery doctrine, that the officer would have
arrested the suspect anyway, without regard to what was
found as a result of the search. See, e.g., United States v.
Cotnam, 88 F.3d 487, 495–96 (7th Cir. 1996). Suppression
would occur only in cases in which “but for the search there
would have been no arrest at all.” People v. Reid, 26 N.E.3d
237, 239 (N.Y. 2014). Those are precisely the cases in which
suppression should occur in order to combat the serious
potential for abuse that otherwise exists when officers
possess unfettered discretion as to whom to target for
searches. See Deahl, supra, at 1120–22. As has been noted,
“it is no secret that people of color are disproportionate
victims of this type of scrutiny.” Utah v. Strieff, 136 S. Ct.
2056, 2070 (2016) (Sotomayor, J., dissenting). So long as
Smith remains the law of our circuit, it will only exacerbate
this problem.
