By Lisa A. Judge, Police Legal Advisor/Principal Assistant City Attorney, Tucson, Arizona, Police Department
he state of Arizona can always be counted on to provide U.S. Supreme Court decisions that change the way law enforcement officers do business, and Arizona v. Gant, decided April 21, 2009, is no exception.1 The Gant decision changes the landscape dramatically with regard to an officer’s authority to conduct a warrantless search of a vehicle incident to arrest as a matter of routine. In short, the bright-line rule allowing automatic searches of vehicles incident to the arrest of an occupant has been narrowed to allow such a search only if the officer has a reasonable belief that the arrestee can gain access to the vehicle or that evidence of the crime of arrest will be found in the vehicle. Chiefs should be certain that their agencies are familiar with this change and that policy and practices reflect the ruling.
In the underlying case, officers acting on an anonymous tip about drug sales occurring at a residence made contact with Rodney Gant when he answered the door and identified himself. Gant told the officers that the residence owner was not home but would be back later. The officers left and subsequently ran a records check on Gant, revealing an outstanding warrant for driving with a suspended license as well as an active license suspension. The officers returned to the residence later that evening and had arrested two other persons on the property when Gant drove into the driveway. Officers recognized him as he pulled in and called to him as he got out of the car. He was arrested immediately and within 12 feet of his vehicle. He was cuffed and placed in a patrol car, whereupon the officers searched his vehicle incident to his arrest, discovering a gun and a bag of cocaine in a jacket on the backseat. Gant was charged with and convicted of possession of narcotics for sale and possession of drug paraphernalia. On appeal, the Arizona Supreme Court found that the warrantless search of Gant’s vehicle was unreasonable under the Fourth Amendment, since the scene was secure and Gant was in custody and unable either to pose a threat to the officers or to destroy evidence.
The U.S. Supreme Court affirmed the Arizona rule that officers may not search a vehicle incident to arrest if the arrested occupant has already been secured. However, if officers have a reason to believe that evidence of the crime for which the occupant has been arrested is in the vehicle, they may search it incident to the arrest without a warrant.
Ramifications of the Ruling
The Gant decision moves away from the easy-to-understand, bright-line rule of New York v. Belton, which was widely interpreted to authorize the routine warrantless search of a vehicle pursuant to the arrest of an occupant of that vehicle.2 For decades, officers have operated on the presumption and the belief that the law permitted them to search a vehicle whenever a recent occupant of that vehicle was arrested, without regard to whether the arrestee was actually presenting a risk to officer safety or whether there was reason to believe that evidence related to the crime of arrest might be in the vehicle.
In the relevant part of its holding in Gant, the Court states: “[W]e hold that Belton 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
. . . . [W]e also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”3
To make sense of this decision, it is helpful to return to the Court’s original reasoning in creating this particular exception to the warrant requirement. The underlying rationale allowing officers to conduct a search incident to arrest is based on two concerns: (1) to search for weapons because the arrestee has a heightened reason to fight and/or flee a custodial arrest and (2) to preserve evidence of the crime for which the person has been arrested.4 If an arrestee is cuffed and in the back of a patrol car or is being sufficiently guarded, the Court has decided that reason 1 no longer applies. However, reason 2 may still apply, and the Court’s decision here leaves this option open, as long as it is supported by a belief, based on specific facts, that evidence related to the crime for which the person was arrested may be found in the vehicle.
As to how this fits with the Belton decision, on which officers have relied since 1981 as authority for searching a vehicle incident to arrest, the Court noted that Belton answered only the question of where officers could search—that is, in the passenger compartment and any containers—and not when such a search is appropriate—that is, whether the individual facts make it reasonable under the Fourth Amendment once the scene is secured.
Summary and Practical Tips
As a result of the recent ruling, agencies must keep the following points in mind regarding vehicle searches incident to arrest:
- Officers may no longer conduct a routine warrantless search of a vehicle incident to the arrest of an occupant.
- A warrantless search incident to arrest is permissible if the arrestee or others could gain access to the vehicle and present a safety risk or if officers have a reason to believe that evidence of the crime of arrest may be found in the vehicle. It is critical that officers do not compromise their safety by allowing an arrestee to remain unsecured to justify a search incident to arrest.
- Under the vehicle exception to the warrant requirement, if an officer has probable cause to believe the vehicle contains evidence or contraband, the vehicle may be searched without a warrant. The vehicle must be “readily mobile.” Note that this is a higher standard to meet than the “reason to believe” standard from Gant if the search is occurring in conjunction with an arrest.
- Officers may “frisk” a lawfully stopped vehicle if they have reasonable suspicion that a weapon that could be readily accessed and used against them is present in the vehicle. This search is limited to unlocked areas where the occupants could easily access a weapon.
- Officers may conduct an inventory search of a lawfully impounded vehicle if the inventory is done in compliance with an existing agency policy. The basis for this search is to protect citizen property as well as to protect law enforcement agencies from harm and against claims of theft or loss, but any evidence or contraband discovered in the course of the search may be used in criminal proceedings.
- Officers may seek consent to search a vehicle from someone who has apparent authority to provide consent.
Officers must remember that all warrantless searches are presumed to be unreasonable unless properly justified as an exception to the warrant requirement. If an officer seeks to search a vehicle incident to arrest based on having a reasonable belief that evidence of the offense might be inside or that actual officer safety concerns exist, it is critical to document the facts supporting the officer’s belief. These types of searches will be ripe for challenge by the defense, so it is essential to document completely all facts providing justification for the search. ■
1Arizona v. Gant, 2009 WL 1045962 (April 21, 2009).
2New York v. Belton, 453 U.S. 454 (1981).
3Gant, 2009 WL 1045962.
4Chimel v. California, 395 U.S. 752 (1969).