Alert! DCCA to go en banc to determine whether the "search incident to arrest" exception to the Fourth Amendment warrant requirement requires an actual arrest or just probable cause to arrest.

In United States v. Nash, 100 A.3d 157, 165-68 (D.C. 2014), decided September 25, 2014, the DCCA held that a warrantless search of the defendant's car was justifiable as a “search incident to arrest” because the police had probable cause to arrest his passenger for possessing an open container of alcohol, even though they had not actually arrested her for it and were at best undecided about whether they were going to.  (Click here to see our blog post on the decision.)  PDS petitioned for en banc rehearing, arguing that the panel's holding could not be reconciled with the Supreme Court's decision in Knowles v. Iowa, 525 U.S. 113 (1998) (holding that a valid search incident to arrest requires an actual arrest, not just grounds for one).  See also Butler v. United States, 102 A.3d 736, 742-48 (D.C. 2014) (Beckwith, J., dissenting) (articulating this argument).  On January 23, 2015, the Court granted PDS's petition for en banc rehearing and vacated the portion of the Nash opinion containing the search-incident-to-arrest analysis and holding (Part III).  Thus, Nash's discussion of this issue is no longer good law; stay tuned for the DCCA's final word.  GB.