Is a search de novo valid when the search takes place prior to the search?

Potts argues that evidence seized as a result of the search of his person should have been suppressed because (1) the warrant did not authorize the agents to search him, and (2) the search cannot be upheld as a search incident to arrest because Potts was not placed under arrest prior to the search. The district court upheld the search as a search incident to arrest. We review the legality of a search de novo. United States v. Huffhines, 967 F.2d 314, 316 (9th Cir.1992).

Potts is right with regard to the warrant. The form has two boxes, one for "on the person of ..." and one for "on the premises known as...." Only the premises box is checked. But the district court correctly decided that the agents' search of Potts should be upheld as a valid search incident to arrest. A search incident to arrest "is valid whether it occurs immediately before or after the arrest." United States v. Potter, 895 F.2d 1231, 1234 (9th Cir.), cert. denied, 497 U.S. 1008 (1990). We therefore need not decide whether the formal arrest occurred when the police said Potts was under arrest, or when they put him on the floor and handcuffed him, with the intention that he not be free to go. The relevant question is whether probable cause for arrest existed before the officers conducted the search incident to arrest. Id. at 1233-34.