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Arrest, Search Incident to – Timing

State v. Jordan A. Denk2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate


¶33      We note at the outset that Officer Hahn testified he did not place Pickering under arrest until after he had performed searches of the eyeglass case and Denk’s clothing. This fact does not alter our analysis. In State v. Sykes, 2005 WI 48, ¶15, 279 Wis. 2d 742, 695 N.W.2d 277, we agreed with the United States Supreme Court that “where a ‘formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.’” (Quoting Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)). We concluded that a warrantless search “may be incident to a subsequent arrest if the officers have probable cause to arrest before the search.” Id. (internal quotations omitted).

Pickering was the driver; the cop indisputably had PC to arrest him, ¶34.

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