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“A formal arrest is not always necessary to conduct a search without a warrant.” When there is probable cause to make an arrest, high risk evidence will be destroyed, and the search is “commensurate with the circumstances necessitating the intrusion,” a warrantless search is justified. A command can effectuate a search when followed, but noncompliance with the command maintains one’s reasonable expectation of privacy and does not constitute a search.

Travis Pope appeals the denial of his motion to suppress evidence of his possession of marijuana. The issue at hand regards whether a Forest Law Enforcement Officer’s two separate commands constituted illegal searches, violating the Fourth Amendment to the United States Constitution. Pope admitted to the Officer he had been smoking marijuana, but denied having any “on him.” The Officer ordered Pope to “empty his pockets,” but Pope made no move to empty them. After the Officer asked a second time about having marijuana in his possession, Pope admitted to the possession. The Officer told Pope to “place the marijuana on the hood of the patrol car,” which Pope complied with. The Court defines a Fourth Amendment “search” as occurring “when the government infringes on a subjective expectation of privacy that society is prepared to recognize as reasonable.” All agreed that Pope did have a reasonable expectation of privacy in his pockets, however when one does not comply with a command and “nothing already exposed to the public was revealed,” the mere command does not intrude on that reasonable expectation of privacy. In addressing the first command, the Court contrasts Pope’s situation with cases where compliance with commands constitute searches. Since Pope did not comply, the command did not effectuate a search. In regards to the second command, the Court did find a Fourth Amendment search; however, they held this search to be permissible “because the search was supported by probable cause to arrest, and because the evanescent nature of the evidence justified a limited warrantless search.” The Court addressed three elements justifying a search without a warrant: 1] there is probable cause to arrest, 2] high risk evidence will be destroyed; and 3] the search “was commensurate with the circumstances necessitating the intrusion.” All criteria were met. AFFIRMED.