Aftermath of Arizona v Gant

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1 Aftermath of Arizona v Gant Mark M. Neil Senior Attorney National Traffic Law Center National District Attorneys Association A Little History - Facts of Gant 99 Canal Center Plaza, Suite 330 Alexandria, VA Driver s license suspended Outstanding warrant for arrest Officers observed Gant drive by, park and then get out of car and shut the door Officers approach, meeting 10 to 12 feet from Gant s car Gant was then arrested and handcuffed Incident to arrest, officers search Gant s car finding a gun and a bag of cocaine in the pocket of a jacket on the backseat Points to remember: Search incident to arrest Defendant away from vehicle and secured Search not related to arrest offense HELD: Because Gant handcuffed and could not access interior of car to retrieve weapons or evidence at time of search, search incident to arrest exception did not justify the search Limiting vehicle searches? Seems contrary tothornton v United States and New York v Belton Gone is more open and generous license to law enforcement officers in their ability to search passenger compartment or containers simply because of arrest of occupant or recent occupant of vehicle Gant provides for two situations: conduct a vehicle search when an arrestee is within reaching distance of the vehicles it is reasonable to believe the vehicle contains evidence of the offense or warrant

2 What is within reaching distance? Gant was handcuffed and unable to access the interior of the vehicle Constructive Custody Where defendants were detained outside of the vehicle unrestrained, not formally arrested, handcuffed or secured and officers outnumbered detainees Court found officers could not reasonably believe they were within reaching distance of passenger compartment US v McCraney, 6 th Cir When is it reasonable to believe vehicle contains evidence of offense or warrant? Offense determines reasonableness What offenses usually associated with arrest out of a vehicle? DUI Drug Possession Firearms Possession Outstanding Warrant Will supply basis for searching

3 Simple Traffic Stop No reasonable basis to believe the vehicle contains relevant evidence of the crime of arrest, such as traffic violations Nature of the offense would preclude application of Gant Stoughton, Va L. Rev 97: Police lawfully searched vehicle after driver handed officer marijuana cigarette. Search was not result of traffic violation. Defendant s act of possession of marijuana inside vehicle established probable cause US v Conerly (E.D. Mich 2010) Reasonable Suspicion standard rather than Probable Cause The facts known to the police officer at the time of the search, coupled with his common sense, based on his experience, training and the totality of the circumstances People v Tavernier (Mich App., 2012) Other exceptions still apply Frisk for Weapons Probable Cause of Evidence of Crime Protective Sweep

4 Frisk for Weapons Permit officers to frisk vehicle s passenger compartment when reasonable suspicion that an individual, whether or not the arrestee, is dangerous and might access the vehicle to gain immediate control of weapons. Michigan v. Long, 463 U.S (1983) Narrowing of search incident to arrest did not affect the validity of Michigan v Long Officer is permitted to search vehicle when safety or evidentiary concerns demand When no arrest made, officer may search if reasonably believe suspect is dangerous and may gain immediate control of a weapon People v Washington, (Mich App 2010) Arrest is irrelevant Probable Cause of Evidence of Crime Probable cause to believe a vehicle contains evidence of criminal activity United States v Ross, 456 U.S. 798 (1982) Gant not modify standards regarding searches pursuant to automobile exception US v Steele, 5 th Cir 2009 If probable cause to believe a vehicle contains evidence of criminal activity, officer allowed to search for evidence relevant to offenses other than the offense of arrest and the scope of the search authorized is broader People v Howard (Mich App 2010)

5 Protective Sweep Safety or evidentiary interests justify a search Maryland v. Buie, 494 U.S. 325 (1990) The nature of the vehicle may control o Multi-passenger vans o Recreation vehicles o Motor homes o Buses Other Exceptions Consent Abandonment Plain View Inventory Sobriety Checkpoints Exigent Circumstances Consent Easiest of all exceptions to the search warrant requirement is the one of consent. So long as the defendant makes a knowing and intelligent waiver of his rights, the officer may search without a warrant. Schneckloth v. Bustamonte 412 U. S. 218 (1973) Knowing Intelligent Consent of driver Who? People v Gouch, (Mich. App., 2011)

6 Abandonment If vehicle has been abandoned, then privacy interests have also been abandoned and the officer is free to search the vehicle California v. Greenwald, 486 U.S. 35 (1988) Plain View So long as the officer is in a position in which he is lawfully entitled to be, anything plainly visible to him falls under this well-established exception. Coolidge v. New Hampshire, 403 U.S. 443 (1971) Trial court erred in concluding that search was unlawful even after lawfully observing presence of rifle in plain view inside vehicle Where probable cause to believe vehicle contains contraband, vehicle may be searched without warrant People v Jackson (Mich. App 2010) Paper bag found outside of car (not seen there immediately prior by officer) containing Oxycontin, Passenger deny ownership or knowledge of bag People v Gouch, (Mich. App., 2011) Inventory So long as the officer s department has a written policy providing for it, the officer may inventory the contents of a vehicle prior to it being impounded and towed for the purpose of safekeeping and avoiding claims of loss. South Dakota v. Opperman, 428 U.S. 364 (1976) Gant not apply to valid vehicle inventory US v Rollins, Not reported, ED Tenn State v Wotring, Ohio App 11 Dist 2010 State v Kemp, Ohio App 8 Dist 2011 Garcia v State, TX App - Dallas 2011

7 Dog Sniff Dog sniff of vehicle, even where Defendant arrested and secured and/or not reasonable to believe auto contained evidence of arrest crime, is not a search and did not violate Gant US v Rosas-Herrera, 816 F. Supp. 2d 273 (M.D.N.C. 2011) The dog sniff itself is not a search and as long as it is done during the pendency of a lawful stop and not beyond, there is no issue. Illinois v. Caballes, 543 U.S. 405 (2005) Mungo A case with a.torturous and monstrously complex procedural history stretching out behind it People v Mungo (Mich. App., 2012)

8 Citations Arizona v Gant, 556 U.S. 332 (2009) Thornton v United States, 541 U.S. 615 (2004) New York v Belton, 453 U.S. 454 (1981) United States v McCraney, (6 th Cir. 2012) Seth W. Stoughton, Modern Police Practices: Arizona v. Gant s Illusory Restriction of Vehicle Searches Incident to Arrest, 97 Va. L. Rev (2011) United States v Conerly, 210 WL (E.D. Mich. 2010) People v Tavernier (Mich. App., 2012) Michigan v. Long, 463 U.S (1983) People v Washington (Mich. App., 2010) United States v Ross, 456 U.S. 798 (1982) United States v Steele, 5 th Cir 2009 People v Howard (Mich. App., 2010) Maryland v. Buie, 494 U.S. 325 (1990) Schneckloth v. Bustamonte, 412 U. S. 218 (1973) People v Jackson, 2010 WL (Mich. App 2010) People v Gouch, # Monroe Circuit Court (Mich. App., 2011), unpublished California v. Greenwald, 486 U.S. 35 (1988) Coolidge v. New Hampshire, 403 U.S. 443 (1971) South Dakota v. Opperman, 428 U.S. 364 (1976) US v Rollins, 2010 WL (E.D. Tenn. 2010) Not reported State v Wotring, 2010 WL (Ohio App 11 Dist. 2010) State v Kemp, 2011 WL (Ohio App 8 Dist. 2011) Garcia v State, 2011 WL (TX App - Dallas 2011) Illinois v. Caballes, 543 U.S. 405 (2005) US v Rosas-Herrera, 816 F. Supp. 2d 273 (M.D.N.C. 2011) People v Mungo, # (Mich. App., 2012)

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