What exactly can we do in light of Gant? - PATC · WHAT EXACTLY CAN WE DO IN LIGHT OF GANT ? Arizona v. Gant By Brian S. Batterton, J.D. Written For and Distributed by Public Agency

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©2009 Article published in the free PATC E-Newsletter: 800.365.0119

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WHAT EXACTLY CAN WE

DO IN LIGHT OF GANT?

Arizona v. Gant

By Brian S. Batterton, J.D.

Written For and Distributed by Public Agency Training Council. For duplication & redistribution of this article, please contact the Public Agency

Training Council by phone at 1.800.365.0119.

Article Source: http://www.patc.com/weeklyarticles/az_v_gant_guidelines.shtml

Printable Version: http://www.patc.com/weeklyarticles/print/az_v_gant_guidelines.pdf

Stay up to date on these and other legal decisions by reading the weekly article updates available at patc.com

On April 21, 2009, the United States Supreme Court decided Arizona v. Gant,i which significantly

changed the rules relating to vehicle searches incident to the arrest of vehicle occupants. In that

case, the Supreme Court held that an officer who makes an arrest for a traffic offense can only

search the vehicle incident to that arrest if (1) at the time of the search, the arrestee is unsecured

and within arms reach of the passenger compartment, or (2) it is reasonable to believe that

evidence related to the crime of arrest is located within the passenger compartment.

This holding in Gant, will have an impact on not only future cases, but also on cases that are

anywhere in the criminal justice process ranging from a motion to suppress to an appeal. For

example, in the United States v. Majette, ii on June 5, 2009, a police officer in Virginia conducted a

traffic stop on Majette for a window tint violation under Virginia statute. Majette admitted to the

officer that his driver’s license was suspended, and the officer confirmed this via a driver’s license

status check through the dispatcher. The officer then arrested Majette for driving with a

suspended license and placed him, handcuffed, in the back seat of his police car. He then

searched the passenger compartment of Majette’s car incident to arrest. During the search, the

officer found approximately 23 grams of cocaine, a small amount of marijuana, and digital scales.

On February 22, 2007, Majette was indicted under federal statute for possession of cocaine with

intent to distribute. On October 23, 2007, the district court denied Majette’s motion to suppress

after holding that the arrest was lawful under Virginia law; therefore, the court held that the

evidence was seized during a search incident to a lawful arrest. The court, in holding that the

search was a lawful search incident to arrest, relied on New York v. Belton,iii which over the years

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has been interpreted to have authorized countless similar searches. Majette eventually went to

trial and was convicted of the charge.

Majette appealed his conviction and the denial of the motion to suppress to the Fourth Circuit

Court of Appeals. On January 30, 2009, the Fourth Circuit Court of Appeals noted that Arizona v.

Gant, which was pending before the Supreme Court, had similar facts and would likely control the

outcome of this case. Then, on April 30, 2009, only nine days after the holding in Gant, the Fourth

Circuit issued its opinion in Majette.

The Fourth Circuit was bound to the holding in Gant which, to review, authorized a search of a

passenger compartment incident to the lawful arrest of a vehicle occupant only when (1) the

arrested vehicle occupant is unsecured and within arms reach of the passenger compartment at

the time of the search or (2) it is reasonable to believe that evidence related to the crime of arrest

is located within the passenger compartment. In examining the facts of this case, the Fourth

Circuit noted that, at the time of the search, Majette was handcuffed and secured in the back seat

of the police car. Thus, the first exception in Gant was not met because the passenger

compartment was not within the reach of Majette at the time of the search. In considering the

second exception in Gant, the court noted that the crime for which Majette was arrested,

particularly driving with a suspended license, was the same crime for which Gant was arrested. In

Gant, the Supreme Court held that it was not reasonable to believe that evidence of the crime of

suspended license, would be found in the passenger compartment. Because neither search

exception from Gant was met in this case, the Fourth Circuit vacated Majette’s conviction and sent

the case back to the district court for a new trial. The new trial would have to take place after the

court grants the motion to suppress, based on the reasons above; therefore, it is unlikely that

Majette will be re-tried.

IN SUMMARY:

Since Gant’s impact is just beginning to be realized, it is important to review exactly what officers

can do upon the arrest of a vehicle occupant. Some basic rules are as follows:

• If an officer makes an arrest and an unsecured arrestee is within arms reach of the passenger compartment, the passenger compartment could be searched incident to arrest.iv It is not recommend that officers engage in lapses in “officer safety” in order to justify searches. ‘Therefore, continue with the other justifications below.

• If an officer makes an arrest and it is reasonable to believe that evidence related to the crime of arrest could be found in the passenger compartment, it can be searched incident to that lawful arrest.v


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• If an officer has probable cause to believe that evidence of a particular crime is located in a vehicle, the officer can search the vehicle without a warrant, based upon the motor vehicle exception to the search warrant requirement.vi Please note that some states may be more restrictive than the Fourth Amendment of the U.S. Constitution requires.

• If an officer reasonably believes that a vehicle occupant is dangerous and may gain immediate control of a weapon from a vehicle, the officer may conduct a limited search of the passenger compartment, only looking in places that a weapon could be hidden. This is commonly called a “vehicle frisk.”vii

• If an officer has a lawful justification to impound an automobile, the officer may conduct an inventory of the contents of the vehicle and all containers therein, pursuant to department policy.viii Any contraband or evidence observed during this inventory may be seized and should be admissible in court. The rationale for the inventory is (1) to protect the owner’s property, (2) to protect the police from potential danger due to the contents of the vehicle, and (3) to protect the police from false allegations of theft.ix Please note that some states may require police to first attempt some other disposition of the arrestee’s vehicle prior to impoundment. Individual state rules should be followed.

i 556 U.S. ____ (2009) ii No. 08-4427, 2009 U.S. App. LEXIS 9267 (Decided April 30, 2009)

iii 453 U.S. 454 (1981)(holding that when an officer makes a lawful arrest of a vehicle occupant, the officer may search the

interior passenger compartment and any containers immediately accessible therein.)(Authors note: This case, until Gant, has

been often interpreted to authorize the search incident to arrest of the passenger compartment even when the arrestee is

handcuffed in the backseat of a police car.) iv Arizona v. Gant, 556 U.S. ____ (2009)

v See Thornton v. U.S., 541 U.S. 615 (2004)

vi See Carroll v. U.S., 267 U.S. 132 (1925); Chambers v. Maroney, 399 U.S. 42 (1970); U.S. v. Ross, 456 U.S. 798 (1982); Florida v.

Myers, 466 U.S. 380 (1984); Pennsylvania v. Labron, 518 U.S. 938 (1996); Maryland v. Dyson, 527 U.S. 465 (1999) vii

Michigan v. Long, 463 U.S. 1032 (1983) viii

South Dakota v. Opperman, 428 U.S. 364 (1976) ix Id.


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What exactly can we do in light of Gant? - PATC · WHAT EXACTLY CAN WE DO IN LIGHT OF GANT ? Arizona v. Gant By Brian S. Batterton, J.D. Written For and Distributed by Public Agency