Ninth Circuit Holds That Search Incident to Arrest May Take Place Before Actual Arrest

Last week, the Ninth Circuit held in U.S. v. Smith that an officer may proceed to search a suspect incident to arrest even if the suspect is not yet under arrest, as long as the officer has the requisite probable cause to arrest the suspect when the search took place.  The court stated:  "A search incident to arrest need not be delayed until the arrest is effected. Rather, when an arrest follows 'quickly on the heels' of the search, it is not particularly important that the search preceded the arrest rather than vice versa.  So long as an arrest that follows a search is supported by probable cause independent of the fruits of the search, the precise timing of the search is not critical."  [Mark Godsey]