dissenting.
The rule in New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), authorizes the police, without a warrant, to search the passenger compartment of an automobile “incident” to a lawful custodial arrest. The Court today redefines this term; now, in order to be deemed “incident,” the search must follow an arrest.
Until today our understanding of the rule was that “a search is conducted incident to an arrest so long as it is an ‘integral part of a lawful custodial arrest process.’ ... The relevant distinction turns not upon the moment of the arrest versus the moment of the search but upon whether the arrest and search are so separated in time or by intervening events that the latter cannot fairly be said to have been *356incident to the former.” United States v. Abdul-Saboor, 85 F.3d 664, 668 (D.C.Cir. 1996) (quoting United States v. Brown, 671 F.2d 585, 587 (D.C.Cir.1982)).
More important, in Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), the Supreme Court specifically said it is not “particularly important that the search preceded the arrest rather than vice versa” where “the formal arrest followed quickly on the heels of the challenged search” and “the police clearly had probable cause to place [the suspect] under arrest” before the search. That is exactly what happened here. See also United States v. Riley, 351 F.3d 1265, 1269 (D.C.Cir.2003) (where “the police had probable cause to arrest” before the search it was “of no import that the search came before the actual arrest”); United States v. Smith, 389 F.3d 944, 951 (9th Cir.2004) (“So long as an arrest that follows a search is supported by probable cause independent of the fruits of the search, the precise timing of the search is not critical”); United States v. Lugo, 170 F.3d 996, 1003 (10th Cir.1999) (“A legitimate ‘search incident to arrest’ need not take place after the arrest”) (citation omitted). Of the three other circuits to address the issue only one has held a Belton search must follow a custodial arrest and that case failed to mention Rawlings. See Ochana v. Flores, 347 F.3d 266, 270 (7th Cir.2003).
Applying the teaching of the Supreme Court in Rawlings to the facts of this case, I believe we must uphold Officer Jones’ search of the car. As the Court acknowledges, Ct. Op. at 870, the officers had probable cause to arrest Powell and his companion before the search and without regard to the fruits of that search. See D.C.Code §§ 22-3312.01, 22-3312.04(a); Scott v. United States, 878 A.2d 486, 488 (D.C.2005). Indeed, Officer Jones testified that the officers “detain[ed]” the men because “they were going to be placed under arrest” for “[u]rinating in public.” Immediately following the search, Powell and his companion were indeed handcuffed and formally placed under arrest for public urination as well as for the firearms violation brought to light by the search. As in Rawlings, “the formal arrest followed quickly on the heels of the challenged search.” 448 U.S. at 111, 100 S.Ct. 2556. Therefore, because “the police had probable cause to arrest [before the search], the search was valid as one incident to arrest.” Riley, 351 F.3d at 1269.
The Court gives a novel reading to Rawlings and Riley and I believe errs in concluding they do not control this case because of “the custodial nature of the police conduct that preceded” the search in those cases. Ct. Op. at 869. Noting that a custodial arrest takes place “when a reasonable person in the suspect’s position would have understood that situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest,” id. at 868-869 (quoting Ochana, 347 F.3d at 270), the Court apparently reads Riley to mean a search must always follow a custodial arrest and may precede only “the formal announcement of arrest.” Id. at 868. In cases involving a search incident to arrest neither we nor the Supreme Court have previously parsed the distinction between “custodial” and “formal” arrests, but the Supreme Court did at least advert to such a distinction in Rawlings, 448 U.S. at 111, 100 S.Ct. 2556 (a search may lawfully precede an arrest so long as a “formal arrest follow[s] quickly on [its] heels”), and the taxonomy is, of course, familiar from the Miranda line of cases, see, e.g., Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (“It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a *357degree associated with formal arrest. If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda.” (internal quotation marks and citations omitted)).
It is possible, but ultimately of no moment, that the suspects in Riley and Rawlings were under “custodial” but not “formal” arrest when they were searched. In Riley, police officers ordered Riley to dismount his moped and searched his sock only after three of the officers had surrounded him in such a way that he “couldn’t have moved without actually making contact with” one of them. Riley, 351 F.3d at 1267. The court noted the seizure (of Riley’s person) that preceded the search might have been deemed an investigative stop pursuant to Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), but for reasons that “elude[dj” the court, the Government conceded the initial seizure was not a Terry stop. 351 F.3d at 1267. The court therefore treated the encounter as an “arrest” as of the moment the officers “converged on the moped.” Id. In Rawlings, the suspect was “detained” at the residence he was visiting and not permitted, unless he would consent to a body search, to leave for the 45 minutes it took the police to obtain a search warrant. 448 U.S. at 100, 100 S.Ct. 2556. After the officers returned with the warrant, Rawlings admitted ownership of drags found in another guest’s purse. Id. at 100-01, 100 S.Ct. 2556. Having established probable cause to arrest Rawlings, the officers first searched him and then placed him under arrest. Id. at 101, 100 S.Ct. 2556. The Supreme Court expressly reserved the question whether the temporary detention of the occupants of the house was a lawful seizure that was “less intrusive than a traditional arrest,” id. at 110, 100 S.Ct. 2556 & n. 5, i.e. something less than a custodial arrest, but assumed for the sake of argument it was an “illegal detention,” id. at 106,100 S.Ct. 2556.
Whether the suspects in Riley and Rawlings were under custodial arrest when they were searched, however, is of no moment. Neither the Supreme Court in Rawlings nor this court in Riley suggested its upholding the search turned upon the suspect being in custody before the search. Instead, the Supreme Court in Raidings said only that the “formal arrest” must follow “quickly on the heels of the challenged search,” id. at 111, 100 S.Ct. 2556, — as happened here — and this court in Riley held it was “of no import that the search came before the actual arrest” if the “actual arrest” followed quickly thereafter, 351 F.3d at 1269,— again, as happened here.
The Court nonetheless seems to find implicit in these decisions the requirement that the search follow the custodial arrest because to hold otherwise would “sever” the search-incident-to-arrest exception to the warrant requirement “from its two historical rationales” — protection of the officer’s safety and preservation of evidence — which are not “triggered” until “an encounter ripens into an arrest,” that is, the suspect is taken into custody. Ct. Op. at 867. But that is not correct. If anything, each rationale is stronger before the police take a suspect into custody than afterwards, and certainly more so than after the suspect has been taken into custody, handcuffed, and locked away in the back seat of a squad car. See, e.g., Thornton v. United States, 541 U.S. 615, 618, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (upholding search under Belton where officer “handcuffed petitioner, informed him that he was under arrest, and placed him in the back seat of the patrol car” before searching the vehicle); see also id. at 627-28, 124 *358S.Ct. 2127 (Scalia, J., concurring) (noting cases upholding search after suspect is handcuffed and secured in back of squad car “are legion” and mordantly criticizing application of Belton to suspects who no longer pose a danger to police). By searching the suspect before they arrest him, the officers can secure any weapon he might otherwise have used to resist arrest or any evidence he might otherwise have destroyed if he got the opportunity.
Nor, contrary to the opinion for the Court, is the search in this case inconsistent with Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). Had the officers failed to arrest Powell and merely issued him a citation, then under Knowles the search would be invalid. 525 U.S. at 117, 119 S.Ct. 484 (“The threat to officer safety from issuing a traffic citation ... is a good deal less than in the case of a custodial arrest”). It is neither the Government’s position nor mine that “probable cause to arrest is alone sufficient for the exception under Belton to apply.” See Ct. Op. at 866, 869. It is the “fact of the arrest” that makes all the difference. Id. (quoting United States v. Robinson, 414 U.S. 218, 234 n. 5, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (“The danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty”)); see also Washington v. Chrisman, 455 U.S. 1, 7, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982) (“Every arrest must be presumed to present a risk of danger to the arresting officer”). Therefore, a search may be “incident” to an arrest regardless of the order in which the police proceed.*
Because I believe the search in this case was “incident to arrest” as the Supreme Court has explicated that phrase, I would go on to the question whether the officers had reason to believe Powell was a “recent occupant” of the vehicle. See Thornton, 541 U.S. at 622, 124 S.Ct. 2127 (“Belton allows police to search the passenger compartment of a vehicle incident to a lawful custodial arrest of both ‘occupants’ and ‘recent occupants’ ” (quoting Belton, 453 U.S. at 460, 101 S.Ct. 2860)). I believe they did. The only reasonable conclusion, upon finding two men urinating at night in an industrial area a “few feet” from a car, the only occupant of which was sitting in a passenger seat, is that the two men were recent occupants of the car. Accordingly, I would uphold the conviction.
I respectfully dissent.
This is not, however, as the Court suggests, a "blank check" for the police to search the car whenever a driver has committed an arrestable offense. Ct. Op. at 869. The police must still complete the arrest, thereby subjecting themselves to a time-consuming procedure and to “the extended exposure” to danger inherent in "the taking of a suspect into custody and transporting him to the police station.” Knowles, 525 U.S. at 117, 119 S.Ct. 484 (quoting Robinson, 414 U.S. at 234-35, 94 S.Ct. 467).