Can a search undertaken pursuant to an invalid search warrant be considered incident to an arrest based upon probable cause?

A search undertaken pursuant to an invalid search warrant which could otherwise be upheld as incident to an arrest based upon probable cause presents an analogous problem. ² In sustaining the validity of such a search, the court in People v. Castro (1967) 249 A.C.A. 190, 196--197, 57 Cal.Rptr. 108, relied upon two reasons which equally apply to the instant issue: 'First: Although certain nonwarrant arrests and searches are permissible, the policy of the law is to encourage officers to use search warrants. * * * Second: The rule which excludes evidence obtained by illegal searches was adopted (partially) for the purpose of eliminating the incentive for police officers to use illegal methods. (Citations.) * * * That principle does not call for a rejection of the evidence in this case. Here the officer was guilty of no wrongdoing except faulty draftsmanship. * * * Given a choice between a nonwarrant arrest and a search based upon a magistrate's warrant, officers will be impelled to forego the latter, if a defect in the warrant procedure will invalidate an arrest and search which would have been legal without a warrant.' ³

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