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Arrest — Search Incident to Arrest — Probable Cause to Arrest Exists, but Officer Exercises Discretion Not to Arrest

State v. Robert F. Hart, 2001 WI App 283
For Hart: John Deitrich

Issue: Whether seizure of evidence may be sustained on a search-incident-to-arrest rationale, where the officer had probable cause to arrest, but was not going to arrest.


¶11. What happens, however, when the police officer does not intend to make an arrest? Here, it is clear there was no intent on the part of the police officer to search Hart incident to the inevitable formal arrest for OWI. Indeed, although there may have been probable cause, both parties were operating under the assumption that no arrest would occur. Therefore, none of the concerns that justify prearrest searches would come into play. The police officer had no reasonable belief that Hart would be motivated to conceal evidence or harm the officer.

¶12. On this interpretation of the facts and the case law, the attorney general cannot successfully argue that the subjective intent of the police officer is irrelevant. His intent not to arrest as he communicated it by words and deeds removed the Cupp concerns which traditionally justify the search as incident to arrest. We determine with respect to the formal arrest for drug paraphernalia, which occurred after the pipe was discovered, probable cause rests entirely on the pipe itself, which as fruit of an unlawful search must be suppressed.

Take note, however, of State v. Michael D. Sykes, 2005 WI 48, ¶33: “Any discussion in Hart that could be interpreted to invalidate a search incident to an arrest for which arrest the officer has probable cause is overruled.”


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