P v. Macabeo (Cal. Supremes) Searches Incident to Arrest Require an Arrest

Mr. Macabeo was riding a bicycle when he rolled through a stop sign.  Apparently having already shot all the fish in its barrel, the Torrance police stopped Macabeo and began to grill him about his criminal record and probation status.

After he told the police he was not on probation, the officers had Macabeo "assume the position" and patted him down, finding nothing.  Macabeo agreed to let the police empty his pockets and a mobile phone was removed.  

Macabeo was then ordered to sit on the curb and remove his shoes before putting his hands upon his head.  He asked if he was under arrest.  The policeman said, "I'll explain everything in a second.  Do not stand up; you don't want to do that."  The policeman's "second" turned into about 10 minutes while another policeman went through Macabeo's phone, finding photographs of underage girls.  Macebeo was then arrested for possessing pornography involving persons under 18.  

Macabeo moved to suppress the evidence of the photographs on the ground they were obtained via a search conducted in violation of the Fourth Amendment.  The trial court denied the motion because, even though Macabeo had not been arrested, the police could have arrested him for rolling through the stop sign.  The trial court held that any time the police have probable cause to arrest someone, all of the liberty intrusions justified by a custodial arrest are fair game for the government.  

The California Supreme Court reverses and remands for the trial court to order the photographs suppressed.

While the opinion, by necessity, addresses numerous issues, including the retroactive effect of Riley v California, the most important aspect of the opinion is the holding that the "search incident to arrest" exception to the warrant requirement is only applicable when an actual custodial arrest is made.  In other words, the liberty intrusions attendant to a search incident to arrest are justified by governmental interests created by the arrest.  When there is no actual arrest, these government interests are not present, and no justification for the intrusions exists.  

Senator (nee Attorney General) Harris tries to make a game of the Fourth Amendment, arguing that government intrusions into individuals' Constitutionally protected interests should be reduced to a theoretical algorithm weighted in favor of the government.  The California Supreme Court wisely rejects such tosh.  The results of Harris' position would have been dangerously absurd.  

Under Harris' interpretation of the Fourth Amendment, if you were seen jaywalking, the police could, without violating the Constitution, stop you, have you sit on the curb for 48 hours while officers take turns grilling and searching you.  They could also take you into the police car and make you strip naked while they checked your orifices for weapons and drugs.  After this two day humiliation was complete, the police could then give you a warning for jaywalking and tell you to enjoy the rest of your week.  And this would all be Constitutional under Harris' Constitution.

Her reasoning is as follows.  Because the police could have, Constitutionally, arrested you for jaywalking, they then could have searched you incident to arrest and questioned you before taking you to the county jail.  Upon arriving at the jail, they could strip search you before placing you into general population.  And they could then keep you locked up for 48 hours before having to take you before a Magistrate where you could plead for your release.  All this would not violate the Constitution, says the United States Supreme Court.  

Sen. Harris argues that the government should be able to do all of this without having to actually arrest you.  In her Constitution, these government intrusions need not be justified by the existence of actual government interests, rather an individual gives up all rights against such intrusions whenever there is probable cause of any law violation.  Such an interpretation is malefic.

Luckily for Californians, our Supreme Court agrees with me.