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Supreme Court Applies the Brakes to Vehicle Searches:

Written by Pam McDonald

Police no longer have automatic authority to search the passenger compartment of a vehicle incident to the arrest of a recent occupant. Police officers have routinely conducted this type of search for 28 years, but the United States Supreme Court prohibited the practice in April 2009 in the decision Arizona v. Gant.

This case reduces but does not eliminate law enforcement’s authority to search a vehicle when arresting a person from that vehicle. It also explains that the Supreme Court never intended for police to conduct such searches as a matter of routine, and it defines the limited situations that allow such a search in the future.

Under the new Gant rule, arresting a recent vehicle occupant justifies the search of the passenger compartment only in two situations. First, “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Second, “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” This new rule requires officers to affirmatively justify a search of the vehicle; the search is no longer justified simply by virtue of the arrest.

Chimel v. California established the search incident to arrest exception to the search warrant requirement and granted police the authority to search both the arrestee and the area within the arrestee’s immediate control, whenever they make a lawful custodial arrest. The court explained that the area “within his immediate control” meant “the area from within which (the arrestee) might gain possession of a weapon or destructible evidence.” This definition proved difficult to apply when a vehicle was involved.

So, in New York v. Belton, the court announced what was believed to be a bright-line rule permitting officers to search, incident to the arrest of a recent occupant of the vehicle, the entire passenger compartment (and the containers within it), regardless of whether an arrestee could actually reach this area or whether additional evidence was likely to be found in the search.

More recently, in Thornton v. U.S., the court clarified that a search of the vehicle incident to arrest is authorized even if the occupant has stepped out of the vehicle and is walking away from it when the arrest occurs.

In Gant, the court asserts that the Belton language regarding the search of the passenger compartment was merely a description of the scope of the officer’s search in that particular case and was never intended to create the authority for police to search the passenger compartment every time they arrest an occupant of a vehicle.

The court then reiterates the justification for a search incident to arrest as it was explained in Chimel v. California, which was officer safety (regarding weapons) and preventing concealment or destruction of evidence. It is now understood that an arrest does not automatically trigger the authority to search the passenger compartment, but that normal principles of officer safety and preservation of evidence are still in play.

The first scenario that now justifies a search of the passenger compartment is when the arrestee is unsecured and within reaching distance of the interior of the vehicle at the time of the search. The court notes that this would be a rare circumstance, since it would be contrary to basic principles of officer safety to permit that situation to occur. The rationale for this rule is to prevent an arrestee from accessing a weapon and from destroying evidence, as explained in Chimel.

Clearly, officers should not read this announcement as a reason to leave an arrestee unsecured or in a position to access weapons in the vehicle as a means to justify searching the vehicle. Leaving “a suspect unrestrained nearby just to manufacture authority to search” is contrary to fundamental principles of officer safety that the court is trying to promote and might result in the search being deemed unreasonable in any event.

It is simply the case that when the scene and the arrestee are secured, as they should be soon after an arrest, and when there is no reason to believe that weapons or evidence are present in the vehicle, the underlying justifications for warrantless search no longer exist. Note that the situation in Belton that justified a search of the vehicle involved a single officer (with one set of handcuffs) arresting four occupants for drug charges, and there was a genuine issue of officer safety and evidence preservation related to the arrestees’ access to the vehicle.

The second scenario that now justifies a search of the passenger compartment is when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. Precisely what the court means by this “reasonable to believe” wording is not clear, but officers will now have to provide some justification (in addition to the arrest of the subject) to search the passenger compartment.

If the officer’s intent is to search for evidence of the crime and the arrest is for drugs, this justification should be relatively easy to provide; however, if the arrest is for driving without a license or failure to appear in court, officers will likely have difficulty meeting this requirement.

Other exceptions to the search warrant requirement are not affected by this ruling. The Carroll doctrine (the motor vehicle exception to the search warrant requirement) is still intact. It permits officers to search a mobile vehicle that is located in a public place without a warrant if they have probable cause to believe that the vehicle contains evidence.

Also undisturbed is any departmental policy requirement of inventory searches upon lawful impoundment of a vehicle. Note, however, that an inventory search must be a genuine effort to identify items in the vehicle pursuant to the department’s inventory policy.

Also, officers are always permitted to seek voluntary consent to search from the driver or other person with apparently authority to consent. Finally, the law continues to permit officers to “frisk” the interior of a vehicle in an attempt to locate weapons under the Terry standard of reasonable suspicion of the presence of a weapon (that would constitute a threat to the officer).

The Gant case takes away the easy search that officers have been taught to conduct whenever they arrest a vehicle occupant. Searches incident to arrest are still permitted, but they are now more limited. If there is a legitimate concern about an arrestee gaining access to weapons or evidence in the car, then the officer is justified in searching the areas of the vehicle from within which the arrestee might likely reach a weapon or destructible evidence.

If an officer has “reason to believe” that the vehicle contains evidence of the offense of the arrest, a search of the passenger compartment for that evidence is permitted. This justification will be readily available in some circumstances, such as drug-related arrests, but will be hard to satisfy when the arrest is for an offense that does not typically involve the presence of physical evidence.

No longer is law enforcement simply “entitled” to search the passenger compartment of a vehicle after an arrest. Rather, the rules regarding searching will operate as they do elsewhere in the law of policing—specific justification must exist.

Randy Means is a partner in the Charlotte, NC law firm of Thomas and Means, LLP, and specializes entirely in police operations and administration. He formerly served as head of legal training for North Carolina’s state law enforcement training center and then police attorney for the city of Charlotte. He can be reached at rbmeans@aol.com.

In her 20-year career, Pam McDonald has worked as a patrol officer, a felony investigator, a felony prosecutor, and a college professor specializing in police issues. She is currently assisting Randy Means. She can be reached via email at pammcdonaldfirm@aol.com.

Published in Law and Order, Jul 2009

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