Can the warrantless search of a person be justified as incident to arrest where, at the time of the search, no arrest has been made and none would have occurred but for the results of the search?

QUESTION PRESENTED When a police officer makes a lawful custodial arrest, the Fourth Amendment permits a warrantless search of the arrestee’s person to protect officer safety and prevent the destruction of evidence. See, e.g., Riley v. California, 134 8. Ct. 2473, 2482-84 (2014). In this case, a New York City police officer had probable cause to arrest Petitioner for littering, a local offense punishable by a maximum sentence of one day in jail, but had not in fact arrested Petitioner, and planned only to issue him a citation. Nonetheless, the officer searched Petitioner’s person, found a gun in his waistband, and, only then, placed Petitioner under arrest. Relying on United States v. Diaz, 854 F.3d 197 (CA2 2017), the Court of Appeals upheld the search as incident to arrest, reasoning that the officer had probable cause to arrest before the search and effected an arrest afterward. That rule, Diaz acknowledged, stands in direct conflict with People v. Reid, where the New York Court of Appeals held that “[a] search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not.” 26 N.E.3d 237, 239 (N.Y. 2014). The question presented, which divides the Second Circuit and the New York Court of Appeals, among others, is: Can the warrantless search of a person be justified as incident to arrest where, at the time of the search, no arrest has been made and none would have occurred but for the results of the search? i