Does a search prior to arrest constitute a search incident to arrest?

Although a defendant who challenges the legality of a search and seizure, has the burden of proving illegality, it is the People who have the burden of going forward in the first instance to show the legality of the police conduct. People v. Feingold, 106 AD2d 585.

The general proposition with regard to searches incident to arrest is that the arrest must precede the search. People v. Evans, 43NY2d 160. In this regard, the People must be able to establish that probable cause existed at the moment of arrest. However, probable cause at the time of the arrest cannot be based on the evidence obtained as a result of the ensuing search. People v. Feingold, supra.

A search of the person undertaken prior to arrest qualifies as a search incident to arrest, if a formal arrest follows immediately and is not based upon evidence uncovered during the search. People v. Williams, 273 AD2d 79; lv den 95 NY2d 940.