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The Impact of Arizona V Gant : Limiting the Scope of Automobile Searches?

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The Impact of Arizona V Gant : Limiting the Scope of Automobile Searches? Volume 18, Number 1 N ATIONAL T RAFFIC L AW C ENTER Fall 2009 Between the Lines The Impact of Arizona v Gant : Limiting the Scope of Automobile Searches? By Mark M. Neil WE TRY AGAIN he scope of a police officer’s search therein simply because they have arrested an Because of technical issues, NTLC’s move of an automobile incident to the occupant or recent occupant of the vehicle. to Green and the electronic version of arrest of an occupant has been Yet, the opinion notes that Gant is Between the Lines has been delayed somewhat limited by a recent U. S. consistent with the holding in Thornton and until the next issue. Please make sure Supreme Court decision. The follows the suggestion of Justice Scalia’s that we have your current e-mail Court held in Arizona v. Gant ,1 concurring opinion therein. 5 Thornton had address by going to NDAA’s Web site at Tthat the search incident to arrest exception to expanded Belton to allow for searches of the www.ndaa.org and update your contact the warrant requirement did not apply to the passenger compartment of a vehicle that is information where indicated or go to facts of this case and held that a vehicle search contemporaneous incident to arrest even http://ndaasupport.org/tinc?key=XQjOC5 is not authorized incident to a recent when the officer did not make contact until wC&formname=Summer2009 and give occupant’s arrest after the arrestee has been that person had left the vehicle. The rationale us the information there. Thanks. secured and cannot access the interior of the of allowing a search of the entire passenger vehicle. compartment, regardless of the manner of While investigating Gant for alleged drug contact with the arrestee, was in the search for activity, Tucson police officers learned that a clear rule. Still, it is one based on ensuring MARK YOUR Gant’s driver’s license had been suspended and officer safety and preserving evidence. Justice CALENDARS that there was an outstanding warrant for his Scalia’s concurring opinion in Thornton argued arrest for driving with a suspended license. that if Belton searches were justifiable, it was Officers observed Gant drive by, park and then because of the safety and evidentiary issues, National Association of get out of his automobile and shut the door. not simply because the vehicle might contain Prosecutor Coordinators While about 30 feet apart, one officer called to evidence relevant to the crime for which he Winter Meeting Gant and they approached each other meeting was arrested. December 7-11, 2009 10 to 12 feet from Gant’s car. Gant was then While at the same time limiting an officer’s Little Rock, AR arrested and handcuffed. ability to search the vehicle incident to arrest Incident to his arrest, the officers then based upon proximity and access for the “Drunk Driving. Over the searched Gant’s car, one finding a gun and the purposes of officer safety and evidentiary Limit. Under Arrest.” Dec 16, 2009 – Jan 3, 2010 other a bag of cocaine in the pocket of a safekeeping, the Court also indicated that National Crackdown jacket on the backseat. there may be circumstances unique to the Because Gant was handcuffed and could automobile context to justify a search incident NDAA Capital Conference not access the interior of the car to retrieve to arrest when it is reasonable to believe that February 18-10, 2010 weapons or evidence at the time of the search, evidence of the offense of arrest might be Washington, DC the Court found that the search incident to found in the vehicle. arrest exception did not justify the search in The Court stated that not only is an officer 2010 Lifesavers Conference this case. permitted to “conduct a vehicle search when April 11-13, 2010 A divided Court (4-1-4) held (Stevens, J.) an arrestee is within reaching distance of the Philadelphia, PA generally that a vehicle search incident to a vehicle” but also if “it is reasonable to believe the recent occupant’s arrest is not authorized after vehicle contains evidence of the offense or warrant.” the arrestee has been secured and cannot (emphasis added) This allows for searches access the passenger compartment of the incident to arrest where the vehicle is outside vehicle. This is seemingly contrary to prior of the arrestee’s reach based upon reasonable opinions in Thornton v. United States 2 and New belief rather than probable cause. Assuming Between the Lines is published York v. Belton .3 Applying the safety and that the defendant had been stopped and quarterly by the National District evidentiary justifications underlying Chimel v. subsequently arrested for Driving Under the Attorneys Association’s National United States 4 to limit Belton , much of what has Influence of Alcohol (DUI), the officer would Traffic Law Center. Items may be been taught to and practiced by law be justified in searching for evidence of the reprinted if attributed to NDAAs enforcement officers regarding search incident consumption of alcohol if the officer had a National Traffic Law Center. to arrest is no longer valid. Gone is the more “reasonable” belief such evidence might be Please provide copies to Between open and generous license to law enforcement found. A search might also be permitted in the the Lines . Contact us if you have officers in their ability to search the passenger case of the arrest of the occupant of the inquiries or article suggestions at compartment of a vehicle or any containers vehicle on an outstanding warrant so long as 703.549.9222. Mark M. Neil is a Senior Attorney with the National Traffic Law Center the officer had reasonable belief that evidence of the crime destruction of evidence or danger to a third person might charged in the warrant might be found in the vehicle. this be applicable. 16 Going on, the Court lists certain exceptions that still apply Some activities do not rise to the level of a search and and are available to officers. officers should not worry about this case having changed how • Frisk for Weapons. Permitting officers to search a vehicle’s they handle these situations. For example, dog sniffs of vehicles passenger compartment when there is reasonable suspicion during an otherwise lawful stop are not affected. The dog sniff that an individual, whether or not the arrestee, is dangerous itself is not a search and as long as it is done during the and might access the vehicle to gain immediate control of pendency of a lawful stop and not beyond, there is no issue. 17 weapons. 6 This flows from the rationale for frisking a suspect It would also be appropriate to note that quite often for weapons. 7 vehicles are part of a crime scene, such as in vehicular homicide or DUI with Death cases. Care should be taken to • Probable Cause of Evidence of Crime. Where there is remember that there is no crime scene exception for search probable cause to believe a vehicle contains evidence of warrants. 18 Reliance purely upon the motor vehicle exception criminal activity. 8 Of particular interest is the mention that may not be workable when the vehicle is no longer mobile this allows for searches for evidence relevant to offenses other because of the crash. Some evidence within the vehicle, such as than the offense of arrest, and the scope of the search crash data recorders or some physical evidence might be authorized is broader. This exception does not rely upon an subject to the exigent circumstances exception if the officer has arrest for justification. a reasonable belief that the evidence may otherwise be lost. Officers are allowed to secure a crime scene pending the • Protective Sweep. Where safety or evidentiary interests issuance of a search warrant. 19 would justify a search, such as a limited protective sweep of In short, the holding in Arizona v. Gant is not an overly those areas in which an officer reasonably suspects a burdensome one on law enforcement. While it certainly limits dangerous person may be hiding. 9 From a vehicle perspective, the prior practices of officers conducting wide-ranging this exception may be applicable when dealing with larger searches incident to an arrest of an occupant of a motor vehicles such as multi-passenger vans, recreational vehicles, vehicle, it does still permit those searches under more defined motor homes, buses and the like. circumstances. Perhaps the most important requirement to come out of this case is the need for officers to articulate, and Although not mentioned in the opinion, other exceptions prosecutors to elicit, with great care and detail, the basis for the should also still apply. search. • Consent. The easiest of all exceptions to the search warrant requirement is the one of consent. When the defendant Endnotes makes a knowing and intelligent waiver of his rights, the 1 officer may search without a warrant. 10 This consent, 556 U.S. ___ , No. 07-542 (2009). 2 however, may be limited in scope. 11 541 U.S. 615 (2004). 3 • Inventory. So long as the officer’s department has a written 453 U.S. 454 (1981). 4 395 U.S. 752 (1969). policy providing for it, the officer may inventory the contents 5 of a vehicle prior to it being impounded and towed for the Id. , 541 U.S. at 632. 6 Michigan v. Long, 463 U.S. 1032 (1983). purpose of safekeeping and avoiding claims of loss. 12 7 Terry v. Ohio, 392 U.S. 1 (1968). • Plain View. In situations where the officer is in a position in 8 United States v Ross, 456 U.S.
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