Arizona v. Gant, 129 S.Ct. 1710, (2009); Vehicle Searches after Arrest
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Consider the following hypothetical. Two patrol officers with the Houston Police Department were following a Cadillac in an area known for gang and drug activity. Loud music was coming from the vehicle as it swerved several times from lane to lane. The officers decided to stop the vehicle for failure to maintain a single lane of traffic. In Texas, a law enforcement officer may lawfully stop a person for a traffic law violation. 1/
Once such a lawful investigative stop has been made, the law enforcement officer may temporarily detain a motorist if the officer has reasonable suspicion based upon clear facts which, when combined with reasonable inferences from those facts, permits the officer to conclude that a person detained is, has been, or soon will be engaged in criminal activity. 2/
The two officers that stopped the Cadillac approached the vehicle from different sides. One officer stopped at the driver’s side window while the other stopped at the rear passenger side of the vehicle. Both officers smelled a strong odor of marijuana and the officer at the driver’s side spotted an open bottle of tequila on the seat next to the driver.
At that point the officers had probable cause to arrest the driver for an open container violation. But they did not do so. Instead they instructed the driver to exit the vehicle. While the driver had not been arrested at this juncture, the two officers made a decision to search the vehicle based on the smell of marijuana.
“Is there anything in the vehicle we should know about?” one of the officers asked the man.
The driver replied that he had been smoking marijuana earlier.
At that point the driver was handcuffed and formally told that he was under arrest for the open container violation.
While one of the officers called for a backup unit and maintained control of the three vehicle occupants, the other officer conducted a search of the vehicle. The search discovered marijuana and an unlawful weapon in the driver’s side compartment of the vehicle.
There is a longstanding constitutional rule of law that searches conducted without a warrant from a judge or a magistrate are per se unreasonable under the Fourth Amendment to the United States Constitution, “subject only to a few specifically established and well-delineated exceptions.” 3/ One of those exceptions, which was recognized by the U.S. Supreme Court forty years ago, is a search conducted incident to a lawful arrest. 4/ The Supreme Court carved out this exception to protect the safety of the arresting officer and to protect evidence from possible destruction—both of which are typically associated with arrest situations. 5/ In 1981 the Supreme Court ruled that this exception to the warrant requirement applied to searches conducted of vehicles incident to a lawful stop and arrest. 6/
When the Supreme Court initially carved out the “warrantless search incident to an arrest” exception, the court intended that such searches would be conducted within the arrested individual’s “immediate control” and this zone of control meant “the area from within he might gain possession of a weapon or destructible evidence.” 7/
But after being applied to vehicle searches, this warrantless search exception ultimately became a license for law enforcement officers stopping vehicles to conduct sweeping searches of these vehicles under every conceivable circumstance. And because both state and federal courts simply did not know how to apply the officer safety/preservation of evidence justifications to vehicle searches law enforcement officials sensed this judicial uncertainty and adopted the standard practice of conducting a warrantless search of every vehicle in which the driver was arrested.
This past April the U.S. Supreme Court handed down a ruling with a detailed and specific guide for determining the validity of such vehicle searches. 8/ The court said the vehicle-search rule incident to a lawful arrest “does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” 9/ The court made it clear to the lower courts that it would no longer tolerate the “broad interpretations” they had previously placed on these kinds of searches:
“Under this broad reading of Belton, a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle’s passenger compartment will not be within the arrestee’s reach at the time to the search. To read Belton as authorizing a vehicle search to every recent occupant’s arrest would thus untether the rule from the justifications underlying the Chimel exceptions—a result clearly incompatible with our statement in Belton that it ‘in no way alters the basic scope of search incident to lawful custodial arrests.’ Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police 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.” 10/
Under this latest Supreme Court pronouncement, the search conducted by the officer in our hypothetical would not survive a motion to suppress the evidence seized during that search. The driver of the vehicle was under arrest at the time the officer commenced the search; therefore, he posed no threat to the officer’s personal safety or to the possible destruction of evidence.
With the driver of the vehicle secured and in custody, the arresting officers could have easily impounded the vehicle and secured a search warrant prior to searching it. The mere presence of an open container and the smell of “marijuana” once the defendant was under arrest did not establish any legitimate justification for a warrantless search. The officers at that point had ample time and opportunity to apply for, and secure, a valid vehicle search warrant.
This latest Supreme Court decision will certainly put a crimp in such programs like “Cops” where the police routinely conduct warrantless vehicle searches after they have the suspect in custody. Filming of these dramatic searches, which almost always produce drugs or drug paraphernalia, will now have to be staged at the police pound.
1/ Garcia v. State, 827 S.W.2d 937 (Tex.Crim.App. 1992).
2/ United States v. Cortez, 449 U.S. 411, 421-22 (1981).
3/ United States v. Katz, 389 U.S. 347, 357 (1967).
4/ Chimel v. California, 395 U.S. 752 (1969).
5/United States v. Robinson, 414 U.S. 218, 230-234 (1973)
6/New York v. Belton, 453 U.S. 454, 101 (1981).
7/ Id., 395 U.S. at 763
8/ Arizona v. Gant, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).
9/ Id., 173 L.Ed.2d at 491.
10/ Id., 173 L.Ed.2d at 496.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair