[Vision2020] Arizona v. Gant: Exceptions To Warrant Requirement For Vehicle Searches
Ted Moffett
starbliss at gmail.com
Sun May 24 04:25:50 PDT 2009
http://74.125.155.132/search?q=cache:OlSI5Z4P9QwJ:www.lmc.org/media/document/1/newussupremedecisionarizonavgant.pdf+gant+locked+vehicle+warrant+search&cd=3&hl=en&ct=clnk&gl=us
This is the html version of the file
http://www.lmc.org/media/document/1/newussupremedecisionarizonavgant.pdf.
A list of the exceptions to the warrant requirement in Arizona v. Gant is at
the bottom of the document below. This is one of the clearest explanations
of these exceptions that I have read. I don't think Arizona v. Gant
overturned the legality of the warrantless vehicle search involved in
Illinois v. Cabbales, given the exceptions described below. Illinois v.
Cabbales involved a vehicle search conducted based on probable cause after
drug dogs alerted during a traffic stop for speeding. There was no arrest
for drug violation(s) till after the search was completed, and the US
Supreme Court ruled the use of drug dogs was not a violation of the Fourth
Amendment that would mandate a warrant. Once probable cause was established
based on the drug dogs response, the subsequent warrantless search was
legal, a situtation similar I think to the first exception to Gant described
below. The issue of law enforcement facing a locked vehicle impeding a
probable cause search as described in exception 1. below is not addressed in
this document:
RISK MANAGEMENT INFORMATION
*NEW U.S. SUPREME COURT DECISION IN ARIZONA V. GANT*
**This information was originally developed in conjunction with the League
of Minnesota Cities*
*Insurance Trust¡¦s PATROL program (Police Accredited TRaining OnLine). For
information on *
*PATROL, contact Laura Honeck at patrol at lmc.org or 651-281-1280. For
questions about the*
*material in this memo, contact Ann Gergen at agergen at lmc.org or
651-281-1291. *
*The following is supplemental information to PATROL course ¡§Searches
Incident to Arrest¡¨ *
*released during February 2009.*
*Introduction*
On April 21, 2009, the U.S. Supreme Court handed down its decision in *Arizona
v. Gant,*
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*
providing
important direction on searches of automobiles incident to arrest. Prior
decisions of the Supreme Court had
consistently held that officers may *search* the entire passenger
compartment of a *vehicle* incident to the
custodial arrest of a *vehicle* occupant (*New York v. Belton*
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) or following the custodial arrest of someone
who had recently occupied the *vehicle* (*Thornton v. United States*
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As grounds for suppression, *Gant* argued there are two rationales
supporting searches incident to arrest.
One is to prevent the arrestee from gaining access to a weapon. The other
is to prevent the arrestee from
).
While not explicitly overruling *Belton *or *Thornton*, the Court¡¦s
decision in *Gant *changes what had been
considered a bright line test about passenger-area *vehicle* searches
incident to arrest.
Under *Gant*, officers may not *search* a *vehicle* incident to a recent
occupant¡¦s arrest after the arrestee has
been secured and does not have access to the *vehicle*, unless it is
reasonable to believe evidence relevant to
the crime for which the arrest was made might be found in the *vehicle*.
*Case Background*
Officers knew Rodney *Gant* had a suspended driver¡¦s license and an
outstanding *warrant* for driving with a
suspended license. Officers were investigating possible drug activity at a
house where *Gant* had been
earlier in the day. While officers were still at the scene, *Gant* drove to
the residence and parked his car.
One of the officers who knew about the *warrant* recognized *Gant*.
*Gant*parked his car, got out, and shut the
door. The officer who recognized *Gant* immediately arrested him and placed
him in handcuffs. A short
time later, the officers *locked* *Gant* in the back seat of a patrol car.
After *Gant* had been handcuffed and secured in the police *vehicle*, two
officers searched his car. One
officer found a gun. Another officer found a bag of cocaine in the pocket
of a jacket. The State of Arizona
charged *Gant* with two drug-related offenses. *Gant* moved to suppress the
evidence as fruit of an illegal
*search*.
1
---U.S.---, No. 07-542, 2009 WL 1045962 (April 21, 2009).
2
453 U.S. 454 (1981).
3
541 U.S. 615 (2004).
------------------------------
*Page 2*
2
obtaining access to destructible evidence. *Gant* argued at the time of the
officers¡¦ *search* there was no
possibility he could obtain access to a weapon from his own car because he
was *locked* in the back of a
police *vehicle*. *Gant* also argued officers could not reasonably expect
to find evidence of his crime in the
car because he was only arrested for driving without a license.
*Decisions and reasoning*
In its 1969 decision in *Chimel v. California,*
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the U.S. Supreme Court considered searches incident to arrest
in general. The Court held that officers may *search* only that area within
an arrestee¡¦s immediate control,
meaning ¡§the area from within which [the arrestee] might gain possession of
a weapon or destructible
evidence.¡¨
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Under *Gant*, searches of a *vehicle* for weapons or destructible evidence
after the arrestee has been secured
are unlawful. Searches of a *vehicle* based on a reasonable belief that
there ¡§might be¡¨ evidence of the crime
for which an arrestee has been arrested, even if the arrestee is already
secured, are allowed.
The Court¡¦s rationale in allowing such searches was to protect officers and
preserve evidence.
Additional clarification was provided in *Belton *to define the area of
immediate control as including the
entire passenger compartment of a *vehicle*. In *Thorton*, the Court
further clarified that *Belton *searches were
permissible where the arrestee had recently occupied the *vehicle* prior to
the arrest and the arrest took place
in proximity to the *vehicle*.
In *Gant*, because the arrestee was already handcuffed and secured in the
back of a police *vehicle*, there was
no realistic possibility he could gain possession of a weapon or
destructible evidence. Given this, the Court
found there was no justification for a *search*. The *search* was declared
unlawful and the evidence was
suppressed.
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The *Gant *court recognized there could be circumstances where an officer
might need to *search* a *vehicle*
before the arrestee is secured. The Court cautioned, however, that this
would be a rare case because
officers have the ability to routinely secure arrestees before worrying
about what might be inside the
*vehicle*.
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In other words, the Court was sending a signal that it will look with great
skepticism on attempts
by officers to subvert the *Gant *ruling by leaving the arrestee unsecured
in order to justify a *search* of a
*vehicle*.
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The *Gant *Court was clear that officers may *search* a *vehicle* incident
to arrest if they have reason to believe
¡§evidence relevant to the crime of arrest might be found in the *vehicle*.¡¨
In all likelihood, these searches will pass constitutional muster only if
the officer can articulate
reasons beyond his or her control as to why the arrestee was left
unsecured.
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The Court observed that when a
¡§recent occupant is arrested for a traffic violation, there will be no
reasonable basis to believe the *vehicle*
contains relevant evidence.¡¨
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On the other hand, where drug arrests are involved, ¡§the offense will
supply
a basis for searching the passenger compartment of an arrestee¡¦s
*vehicle*and any containers therein.¡¨
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*Analysis*
To
be clear, this sort of *search* would be for purposes of evidence gathering
and officers would not need to
articulate concerns for officer safety, nor show the evidence was
destructible or in actual danger of being
destroyed.
4
395 U.S. 752 (1969).
5
396 U.S., at 763.
6
The Court used the phrase ¡§might be¡¨ to describe the quantum of suspicion
necessary to support a *search*. *Id. *at 7.
7
2009 WL 1045962 at * 7, n. 4.
8
*Id., *at *12 (¡§When an arrest is made in connection with a roadside stop,
police virtually always have a less intrusive
and more effective means of ensuring their safety-and a means that is
virtually always employed: ordering the arrestee
away from the *vehicle*, patting him down in the open, handcuffing him, and
placing him in the squad car.¡¨) (Scalia, J,
concurring in judgment).
9
*Id., *at *7 (quoting *Thornton, *541 U.S. at 632 (Scalia, J., concurring
in judgment)).
10
*Id., *at *7
11
*Id.*
------------------------------
*Page 3*
3
Contrary to commonly understood pre-*Gant *interpretation, officers may not
*search* the passenger
compartment of a *vehicle* based on the mere fact of custodial arrest.
Rather, officers must meet the *Chimel *
standard for vehicles as they must in other contexts, such as homes. To
justify the *vehicle* *search* solely on
the basis of arrest, officers must be able to articulate that the arrestee
had an actual opportunity to obtain a
weapon or destroy evidence. This would most likely occur only if the
arrestee were unsecured and close to
the *vehicle*, for reasons outside the control of the officer.
However, when an officer arrests an occupant or recent occupant of a *
vehicle* and has reason to believe
there might be evidence related to the offense of arrest, then the officer
may *search* the entire passenger
compartment of the car.
¡§Reason to believe¡¨ is a lower standard than probable cause.
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The *Gant *Court did not provide definitive
guidance on how to apply the ¡§reason to believe¡¨ standard in the context of
*vehicle* searches. As one Justice
pointed out in dissent, this ¡§is virtually certain to confuse law
enforcement officers and judges for some
time to come.¡¨
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„« Crimes involving the use of weapons.
The Court did give some guidance into examples of crimes that could justify
a *search* of the *vehicle* even
after an arrestee has been secured, including specifically the prior cases
of *Belton *and *Thornton*, both of
which involved arrests for drug offenses. While the law has yet to develop,
the following kinds of crimes
would seem to provide reason to believe the *vehicle* might contain
evidence of the offense related to arrest:
„« Simple robbery, armed robbery, and burglary, if it is reasonable to
believe that tools and weapons
used in the commission of the crime, or proceeds of the crime, might be
present in the *vehicle*.
„« Crimes involving possession of drugs or other contraband, where it is
reasonable to believe
evidence of possession might be in the *vehicle*.
„« Where a *search* of the person incident to arrest, provides basis for an
additional charge that would
itself justify a *search* of the *vehicle*. For example, if the officer
arrests a *vehicle* occupant on a
traffic *warrant* and the *search* of her person incident to arrest yields
controlled substances, this
might provide reasonable belief that additional controlled substances are
in the *vehicle*, enough to
justify a *search*.
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The *Gant *Court did not address what to do when persons who were not
arrested remain in the *vehicle*
following custodial arrest of another individual who had been in the car.
These are people who could
certainly gain access to weapons or destructible evidence. *Gant *does not
say, one way or another, whether
the presence of others in or near the *vehicle* will justify a *search*.
There is an argument to be made that these circumstances fall outside the *
Gant *ruling, especially where the
officer has reason to believe he or she is in danger, or when the other
individuals are associated in some
way with the arrestee and might destroy evidence. While this is a logical
and persuasive argument, there is
no legal authority at present to back it up.
*Practice Pointers*
The *Gant *decision left intact other exceptions to the
*warrant*requirement important to note:
1. *Gant *only restricts the authority to *search* incident to arrest. If
you have probable cause to *search* a
motor *vehicle*, then you may *search* ¡§every part of the *vehicle* and its
contents that may conceal the
12
*Id. *at 20 (Breyer, J., dissenting).
13
*Id., *at 14 (Breyer, J., dissenting).
14
*See Thornton, *541 U.S. at 617 (officer initiated contact for traffic
violation, but arrested suspect for drug crime after
pat-down *search*).
------------------------------
*Page 4*
4
object of the *search*.¡¨
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2. If you can articulate reasons to believe the suspect or someone else in
the car may pose a danger to
you *and *may gain access to weapons, you have the option of searching the
*vehicle* *prior *to arresting
anyone.
*Belton *searches were limited to the passenger compartment. Probable
cause searches are not so limited.
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3. When making a custodial arrest of an occupant, conduct a thorough *
search* of the person *at the*
*scene *to determine if there is a more serious crime at issue, for which
you have reason to believe
evidence may be present in the *vehicle*.
4. Depending on the circumstances, you may have justification for
impounding and inventorying the
*vehicle* and contents. See the PATROL memo titled *Vehicle Inventory
Searches *(June 2007) and
the PATROL special update on *State v. Gauster *(July 2008).
*Gant *issues will likely be hotly litigated in the future. Be watchful for
further developments.
Ann Gergen 4/24/09
15
*U.S. v. Ross, *456 U.S. 798, 825 (1982) (applying *Carroll v. United
States, *267 U.S. 132 (1925)).
16
*Michigan v. Long, *463 U.S. 1032, 1049 (1983); *see also State v. Flowers,
*734 N.W.2d 239 (Minn. 2007)
Excerpt from document below:
The Gant decision left intact other exceptions to the warrant requirement
important to note:
1. Gant only restricts the authority to search incident to arrest. If you
have probable cause to search a motor vehicle, then you may search "every
part of the vehicle and its contents that may conceal the object of the
search."
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