Can a warrantless search of a person be 'incident to arrest' where, at the time of the search, no arrest has occurred, and the objective evidence fails to show that an arrest would have occurred without the information discovered during the search?

QUESTION PRESENTED Once a police officer makes a formal custodial arrest, the Fourth Amendment permits a warrantless search incident to that arrest. See, e.g., Riley v. California, 573 U.S. 373, 384 (2014). But where an officer merely conducts an investigatory detention under Terry v. Ohio, 392 U.S. 1, 26 (1968), a full search is not permitted. Here, a California police officer told Petitioner he was “detaining”—not arresting— him. C.A. E.R. 150. The officer then conducted a full search of Petitioner’s person and wallet and found contraband. Only then did the officer put Petitioner “under arrest.” C.A. E.R. 151. The Ninth Circuit upheld this pre-arrest search under United States v. Johnson, 913 F.3d 793, 800 (9th Cir. 2019), which deems a search “incident to arrest” so long as “probable cause to arrest existed and the search and arrest are roughly contemporaneous.” That case directly conflicts with the California Supreme Court’s decision in People v. Macabeo, 384 P.3d 1189, 1197 (Cal. 2016), which struck down a pre-arrest search as invalid under Knowles v. Iowa, 525 U.S. 118 (1998). The question presented, which divides the Ninth Circuit and the California Supreme Court, among other state and federal courts, is: Can a warrantless search of a person be “incident to arrest” where, at the time of the search, no arrest has occurred, and the objective evidence fails to show that an arrest would have occurred without the information discovered during the search? 2