Laura L. Scarry | From the June 2009 Issue Wednesday, June 17, 2009

A random check of a vehicle registration reveals that the registered owner’s driver’s license is suspended, and the driver is also the registered owner. The officer arrests the driver for violating the state statute. The driver is handcuffed and placed in the rear of the squad car. The officer searches the vehicle “incident to the arrest.”

Over the past three decades, police officers arresting individuals as a result of traffic stops have conducted themselves this way. However, the U.S. Supreme Court recently issued an opinion that altered this seemingly innocuous procedure.

Arizona v. Gant
Facts: On April 21, the Supreme Court clarified when it’s permissible for law enforcement officers to conduct a search incident to an arrest. The case, Arizona v. Gant, [1] involved an arrest of an individual whom officers knew was driving while his license was suspended and had an outstanding warrant for his arrest for driving with a suspended license. The driver, Rodney Gant, drove past the officers and parked his car in a driveway. As Gant exited the car, one of the officers called out to him and they met about 10 to 12 feet from Gant’s car. Gant was arrested immediately, handcuffed and locked in the rear of a squad car.

The officers then searched Gant’s vehicle and located a gun and a bag of cocaine in a jacket pocket. Gant was charged with possession of drugs. His attorney moved to suppress the drugs on the grounds that the warrantless search violated the Fourth Amendment. The officer who arrested Gant testified at the motion-to-suppress hearing. Asked why he conducted the search, the officer truthfully responded, “Because the law says we can do it.” The court denied Gant’s motion to suppress, and the case went to trial. A jury found Gant guilty, and he was sentenced to three years.

The case eventually made its way to the Arizona Supreme Court. There, the court discussed the U.S. Supreme Court’s opinion in New York v. Belton, [2] which held that officers are permitted to search the passenger compartment (and any containers therein) of a vehicle as a contemporaneous incident of the arrest of any occupant of the vehicle. However, the Arizona court could not reconcile that premise with the Supreme Court’s holding in Chimel v. California, [3] which allowed officers to search incident to an arrest the “area from within which [the arrestee] might gain possession of a weapon or destructible evidence.”[4] According to the Arizona court, when an arrestee is handcuffed and secure in a locked squad car, a “warrantless search of the arrestee’s car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.”[5] As such, the Arizona court held that the search of Gant’s car was unreasonable. The State of Arizona appealed to the U.S. Supreme Court, and it granted Arizona’s petition for certiorari.

Opinion: The U.S. Supreme Court noted that a search incident to an arrest is one of the few exceptions to the Fourth Amendment’s warrant requirement, and it discussed the precedent set out in Chimel. There, the Court held that the scope of the search incident to an arrest corresponds with the purpose of protecting the safety of the arresting officer and preventing the destruction or concealment of any evidence of the offense forming the basis of the arrest.

The Supreme Court then addressed the Belton decision that applied Chimel in the automobile framework. Belton permits officers who lawfully arrest an occupant of a vehicle to contemporaneously search the passenger compartment of the vehicle as well as any containers located therein. The Court noted that several courts throughout the country have interpreted Belton as giving police officers an “entitlement” to search a vehicle without any concern for Chimel’s dual justification for the search incident to the arrest.

The Court rejected such a broad reading of Belton nd reiterated that Chimel permits officers to search a vehicle incident to “a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”

The Court added that police officers can search incident to an arrest under a second set of circumstances. Reiterating its holding in Thornton v. United States, [7] the Court stated that where police officers reasonably believe evidence related to the offense might be found in the vehicle, they may search the vehicle incident to that arrest. Because Gant was arrested for driving on a suspended driver’s license and for having an outstanding warrant for the same offense, the likelihood of discovering evidence related to that offense was unsubstantiated.

When You Search
The Gant case is an excellent example of why police officers need to understand the rationale for why they are permitted to act certain ways. A search incident to an arrest is no longer an entitlement. In sum, officers may search a vehicle incident to an arrest under two circumstances:

1. When the recent occupant has access to the car where he can reach for a weapon and/or destroy evidence at the time of the search; or
2. When officers reasonably believe that evidence for which the recent occupant was arrested might be found in the vehicle.

Unless one of these circumstances exists, a search of the arrestee’s vehicle will be unreasonable and, therefore, a violation of the Fourth Amendment—unless police officers can obtain a warrant or demonstrate that another exception to the warrant requirement applies, which brings me to my next point.

The Gant decision does not do away with the other exceptions to the Fourth Amendment warrant requirement. For example, officers who have reasonable suspicion that an individual is dangerous and might have access to the vehicle to obtain a weapon may conduct a “frisk” of the vehicle.[8] If officers have probable cause to believe that a vehicle contains evidence of criminal activity, they may conduct a warrantless search of the vehicle.[9]

Conclusion
How does this case affect the law enforcement officer in the real world? If an officer arrests a driver for driving on a suspended driver’s license, and he’s arrested and placed in the back seat of a squad car, the officer cannot justify the search under Chimel. That is, the arrestee is not capable of reaching into the passenger compartment to obtain a weapon or destroy evidence. Likewise, the officer cannot justify the search under Thornton. That is, it’s not reasonable to believe that the officer will find evidence of a suspended driver’s license by conducting a search of the vehicle.

On the other hand, if an officer arrests an individual for driving under the influence of alcohol, or even committing the offense of open transportation of alcohol, a search incident to an arrest under the Thornton exception would apply. That is, a police officer could reasonably believe that evidence of alcohol might be present in the vehicle.

Final note: Don’t leave arrestees “unsecured” as a pretext to conduct a search incident to an arrest on the basis that the arrestee may have access to the passenger compartment of a vehicle. Officer safety should never be jeopardized for the sake of making another arrest.

References

1. _____ U.S. _____, 2009 WL 1045962 (April 21, 2009)
2. 453 U.S. 454 (1981)
3. 395 U.S. 752 (1969)
4. Id . at 763
5. Gant , 2009 WL 1045962 at *4 (citing 162 P.3d 640, 644)
6. Id . at *7
7. 541 U.S. 615 (2004)
8. See, Michigan v. Long , 463 U.S. 1032, 1049 (1983)
9. See, United States v. Ross , 456 U.S. 798 (1982)