State v. Taylor

OPINION LIVERMORE, Presiding Judge. On February 12, 1989, two police officers saw defendant drinking a beer in a Tucson city park, a violation of a municipal ordinance. They approached him intending to write a citation for that offense. One of the officers searched defendant and found hashish folded in a paper in his billfold. Had that hashish not been found, both officers agree, defendant would have been free to leave. 1 The issue raised by these facts is whether officers are free to search anyone they might arrest but have no intention of arresting under a search incident to arrest theory. We believe they may not. Accordingly, we reverse defendant’s conviction for possession of hashish. In United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260 , 94 S.Ct. 488 , 38 L.Ed.2d 456 (1973), the court upheld a full search of the person being arrested incident to that arrest. When custodial arrest, defined in Robinson as “the taking of a suspect into custody and transporting him to the police station,” 414 U.S. at 235, 94 S.Ct. at 476, 38 L.Ed.2d at 440, is in issue, that search for weapons and destructible evidence is authorized, even without reason to believe that either would be present, in part because the arrest itself would create a motivation to use a weapon or destroy evidence. That rationale cannot apply when a person is not being taken into custody to be booked for an offense. If a person is to be free to leave, as defendant *440 was to be in this case, there is no motivation to destroy evidence. In turn, there is no justification to search for it. We are cited no authority for the proposition that police are free to' search anyone they choose to cite for a misdemeanor offense or that they could arrest although they do not intend to. It 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 pre-textual arrests and incident searches, with a custodial arrest to follow if something was found and release to follow otherwise. See generally 2 W. LaFave, Search & Seizure § 5.2(h) (2d ed. 1987). But a search must be justified at its inception, not by what it turns up. There being no probable cause to search, no reason to believe that defendant was armed or dangerous, and no compelling law enforcement interest, only curiosity, being served, the search in this case was unreasonable. The hashish thereby discovered must be suppressed. Reversed. LACAGNINA, J., concurs. . Both officers also agreed that they had no reason to believe defendant armed or dangerous. We need not address, therefore, the circumstances under which a protective search for weapons might be undertaken. Such a search, of course, could not extend to examining the compartments of a billfold.