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Arrest – Search-Incident, Generally

State v. Michael D. Sykes, 2005 WI 48, affirming unpublished decision of court of appeals
For Sykes: Jeffrey J. De La Rosa

Issue/Holding: Where the police had probable cause to arrest for criminal trespass, they did not have to subjectively intend to arrest the person for that offense in order to perform a search incident to arrest. And, though the search must be “contemporaneous” with the arrest (relatedly: probable cause must exist independent of the fruits of the search), it is not necessarily fatal that the search-incident preceded formal arrest.

This lesson has been drummed into our heads for decades now: arrest is determined under purely objective standards; long as the officer did something that can be characterized as tantamount to arrest, and long as that act was supported by probable cause, it just doesn’t matter s/he thought s/he was doing. The matter of timing of search in relation to arrest might be more complex, but the court doesn’t have much beyond abstract principle to say on this subject anyway, so we ought simply note it as a potential problem area and let it pass. Still … there is indeed more to be said, and the Chief says it in dissent, in a typically efficient and elegant manner, ¶¶37-48. Search-incident is circumscribed by the wonderfully self-descriptive “wing-span” rule. The dissent argues persuasively that Sykes’ property was well outside the reach of his wing-span, and thus searching it can’t possibly be justified under a search-incident rationale. The majority determines that it need not reach this issue, ¶21 and id., n. 6; whether or not that determination is procedurally sound is of no moment: just be sensitive to this rule and assert it when necessary.


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