Aftermath of Arizona v Gant

Aftermath of Arizona v Gant

A Little History - Facts of Gant  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:

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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”

Mark M. Neil

Senior Attorney

National Traffic Law Center

National District Attorneys Association

99 Canal Center Plaza, Suite 330 Alexandria, VA 22314 703-519-1641 mneil@ndaa.org www.ndaa.org

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, 6th Cir. 2012

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

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 97:1727 2011

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

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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. 1032 (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)

Probable Cause of Evidence of Crime

Arrest is irrelevant

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, 5th 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

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 Who? Consent of driver

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. 2010 State v Wotring, Ohio App 11 Dist 2010 State v Kemp, Ohio App 8 Dist 2011 Garcia v State, TX App - Dallas 2011

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”

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, (6th

Cir. 2012)

 Seth W. Stoughton, Modern Police Practices: Arizona v. Gant’s Illusory Restriction of Vehicle Searches Incident to Arrest, 97 Va. L. Rev. 1727 (2011)

 United States v Conerly, 210 WL 4723434 (E.D. Mich. 2010)  People v Tavernier (Mich. App., 2012)

 Michigan v. Long, 463 U.S. 1032 (1983)  People v Washington (Mich. App., 2010)  United States v Ross, 456 U.S. 798 (1982)  United States v Steele, 5th

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 1320117 (Mich. App 2010)

 People v Gouch, #299706 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 3851403 (E.D. Tenn. 2010) Not reported State v Wotring, 2010 WL 4868116 (Ohio App 11 Dist. 2010)

 State v Kemp, 2011 WL 3759658 (Ohio App 8 Dist. 2011)  Garcia v State, 2011 WL 5231426 (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, #269250 (Mich. App., 2012)