dissenting.
I respectfully dissent. I believe that the officer here had probable cause to arrest Rybolt for a misdemeanor offense, namely operating a vehicle while intoxicated ("OWI"). As such, the marijuana seized from Rybolt's pants pocket was recovered during a search incident to that arrest.
The search incident to arrest exception to the warrant requirement provides that a police officer may conduct a search of the arrestee's person and the area within his or her control. Stevens v. State, 701 N.E.2d 277, 280 (Ind.Ct.App.1998). "Probable cause for an arrest may exist even though a police officer's subjective evaluation of a situation leads him to the conclusion that he did not possess enough information to establish probable cause at a particular time." Roberts v. State, 599 *942N.E.2d 595, 598 (Ind.1992). The evidence required to establish probable cause for an arrest is less than that necessary to establish guilt. Id. "Probable cause to arrest without a warrant exists if the facts and cireumstances known to the officer would warrant a man of reasonable caution to believe that the accused has committed the criminal act in question." Id. A search incident to arrest is valid so as long as there was probable cause that a suspect had committed a erime, even if the police officer subjectively did not believe that probable cause existed and did not formally announce that the suspect was under arrest. See Stevens, 701 N.E.2d at 281. An arrest occurs when a police officer interrupts the freedom of the accused and restricts his or her liberty of movement. Id. at 280.
It is clear to me that Rybolt was, in fact, under arrest when the officer patted him down and discovered the marijuana. He certainly was not free to leave the scene after he was asked to exit his vehicle and the officer took his driver's lHeense. This arrest was plainly supported by probable cause that Rybolt had committed the offense of OWI. The police officer was dispatched to a busy Indianapolis intersection at about 12:80 a.m. because of a report of a car blocking traffic. The officer activated his emergency lights and used his air horn, neither of which aroused Rybolt, the driver of the car. The car's engine was running. The officer then rapped on the driver's side window, and still Rybolt did not immediately respond. When Rybolt did regain consciousness, the officer noticed that Rybolt's responses to the officer's requests were delayed and that he had "heavy glossy eyes." Tr. p. 16. Based on the officer's training and because he could not smell any alcohol, he believed Rybolt was under the influence of some kind of narcotic. A person of reasonable caution would be justified at that point, before the police officer patted down Rybolt, in believing Rybolt had committed OWL.
I am aware that the State did not charge Rybolt with OWI, and acknowledge that I concurred in the Camp case cited by the majority. However, because Rybolt was not formally charged with OWI for whatever reason does not mean that there was not probable cause to arrest him for that offense. I also believe the facts in Camp are easily distinguishable from this seenar-io. In that case, we expressed concern about the validity of the pat-down of the driver of a vehicle following a pretextual stop for a traffic infraction, failure to make a complete stop, where the officer's only justification for the search was his statement that he had reason, in his profession, to suspect that everybody he encounters may be carrying a weapon. 751 N.E.2d at 301-02. Here, the officer was responding to a dispatch of a driver whose vehicle was blocking traffic, and who was apparently oblivious to other drivers passing him and honking their horns at him. Upon arriving at the scene, the officer discovered that the car's motor was running and reasonably surmised that Rybolt likely was under the influence of some kind of narcotic. There was nothing pretextual about the officer's initial investigation of Rybolt, and the information he gathered during that investigation supported probable cause that Rybolt had committed OWI, a criminal offense, not an infraction. I believe the pat down search conducted in this case was justified, both legally and practically. I, therefore, respectfully dissent.