New warrantless search laws

OTR500 I like most hasn't been searched. As far as a "routine traffic stop" you did something out of the ordinary. It doesn't matter how small you may not of noticed it,but the LEO did. Don't forget Tim McVeigh was caught during a routine traffic stop. So are many people on the run. Most LEO's have a "checklist" that they work thru to get probable cause.

 

otr500 you must be a lawyer in hiding, because I have no idea what the h^ll you are quoting, stating or trying to reference. You've done a h^ll of a job of muddying the water, like any good defense attorney. Let me share with you the facts of Gant, what better way than from a criminal defense attorney point of view and how they can try and beat me in court.

[FONT=Arial, Helvetica, sans-serif]Law enforcement officers throughout the United States recognize their ability to search vehicles incident to the arrest of an occupant. The foundation purpose of such searches is to prevent the subject from reaching into the vehicle for a weapon or reaching into the vehicle to destroy evidence. These searches have, for many years, been limited to the passenger compartment of the vehicle.[/FONT]​

[FONT=Arial, Helvetica, sans-serif]As a tactical matter, an officer who arrests the occupant of a vehicle generally handcuffs the individual and secures them in the rear of their law enforcement vehicle, prior to conducting the search. This is of particular importance to officer safety when an officer is by themselves when making the arrest. This tactic no longer meets constitutional standards as a search incident to arrest unless there is reason to believe the car contains evidence of the crime for which the arrest has occurred. Read on. [/FONT]
[FONT=Arial, Helvetica, sans-serif]In Arizona v. Gant,i the United States Supreme Court considered an appeal by the prosecution from the State of Arizona regarding whether or not law enforcement can search a vehicle incident to the arrest of a subject after the subject has been secured in handcuffs and secured in the back of a police vehicle. [/FONT]
[FONT=Arial, Helvetica, sans-serif]The Arizona Supreme Court outlined the facts regarding the search of Gant’s vehicle as follows:[/FONT]
[FONT=Arial, Helvetica, sans-serif]On August 25, 1999, two uniformed Tucson police officers went to a house after receiving a tip of narcotics activity there. When Defendant Rodney Gant answered the door, the officers asked to speak with the owner of the residence. Gant informed the officers that the owner was not home, but would return later that afternoon. After leaving the residence, the officers ran a records check and discovered that Gant had a suspended driver's license and an outstanding warrant for driving with a suspended license.[/FONT]
[FONT=Arial, Helvetica, sans-serif]The officers returned to the house later that evening. While they were there, Gant drove up and parked his car in the driveway. As he got out of his car, an officer summoned him. Gant walked eight to twelve feet toward the officer, who immediately arrested and handcuffed him. Within minutes, Gant had been locked in the back of a patrol car, where he remained under the supervision of an officer. At least four officers were at the residence by this time and the scene was secure. Two other arrestees had already been handcuffed and locked in the back of separate patrol cars and there were no other people around.[/FONT]
[FONT=Arial, Helvetica, sans-serif]After Gant had been locked in the patrol car, two officers searched the passenger compartment of his car and found a weapon and a plastic baggie containing cocaine. Gant was charged with one count of possession of a narcotic drug for sale and one count of possession of drug paraphernalia for the baggie that held the drug.ii[/FONT]
[FONT=Arial, Helvetica, sans-serif]The Supreme Court of Arizona asserted the issue in the case:[/FONT]
[FONT=Arial, Helvetica, sans-serif]This case requires us to determine whether the search incident to arrest exception to the Fourth Amendment's warrant requirement permits the warrantless search of an arrestee's car when the scene is secure and the arrestee is handcuffed, seated in the back of a patrol car, and under the supervision of a police officer. We hold that in such circumstances, a warrantless search is not justified.[/FONT]
[FONT=Arial, Helvetica, sans-serif]In agreeing to an appeal in the case, the United States Supreme Court limited the question in the case to the following:[/FONT]
[FONT=Arial, Helvetica, sans-serif]“Does the Fourth Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle’s recent occupants have been arrested an secure?”[/FONT]
[FONT=Arial, Helvetica, sans-serif]Key Question: Can officer conduct a search of a vehicle incident to arrest after an arrestee has been secured in handcuffs and placed in a locked police vehicle?[/FONT]

[FONT=Arial, Helvetica, sans-serif]The Decision[/FONT]​

[FONT=Arial, Helvetica, sans-serif]In analyzing the facts in Gant the United States Supreme Court asserted: “In Chimel,iii we held that a search incident to arrest may only include ‘the arrestee’s person and the area within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.”[/FONT]
[FONT=Arial, Helvetica, sans-serif]The Court went on to hold that: a search incident to arrest in a vehicle is only authorized “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” [/FONT]

[FONT=Arial, Helvetica, sans-serif]The Court then went on to add one additional search justification noting that it went beyond the Chimel rationale. The Court held that officer would be justified in searching a vehicle incident to the arrest of an occupant in cases where it would be “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” [/FONT]

[FONT=Arial, Helvetica, sans-serif]The Court noted: “In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.”[/FONT]
[FONT=Arial, Helvetica, sans-serif]The Court held: “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”[/FONT]
[FONT=Arial, Helvetica, sans-serif][SIZE=+2]BOTTOM LINE:[/SIZE][/FONT]


[FONT=Arial, Helvetica, sans-serif]Simply stated the new rules justifying search incident to arrest of the passenger compartment of a vehicle are:[/FONT]

• [FONT=Arial, Helvetica, sans-serif]Lawful Arrest; and[/FONT]
• [FONT=Arial, Helvetica, sans-serif]Search Must take place at the time of the arrest (contemporaneous with arrest); and[/FONT]
• [FONT=Arial, Helvetica, sans-serif]The arrestee must have the possibility of access (thus not yet secured); [/FONT]
  [FONT=Arial, Helvetica, sans-serif]OR[/FONT]
• [FONT=Arial, Helvetica, sans-serif]There is a likelihood of discovering offense related evidence (the offense for which the subject is being arrested) [/FONT]

[FONT=Arial, Helvetica, sans-serif]It is noted that law enforcement may still rely on other exceptions to the warrant requirement with respect to motor vehicles where applicable. [/FONT]
CITATION:

i Arizona v. Gant, 556 U.S. ___ (2009); slip op. No. 07-542 (2008).​

ii Arizona v. Gant, 216 Ariz. 1 (Supreme Ct. of Arizona 2007).​

iii Chimel v. California, 395 U.S. 752 (1969),​

otr500, here is your "fruits of the crime" justification:​

The Court then went on to add one additional search justification noting that it went beyond the Chimel rationale. The Court held that officer would be justified in searching a vehicle incident to the arrest of an occupant in cases where it would be “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” ​

Here is the run down directly from the Federal Law Enforcement Training Center. This information is readily avaiable to anyone on the internet. Just put in Gant vs. Arizona. You'll see thousands of hits.​

Case Note – Police may search the passenger compartment of a vehicle incident to arrest of an occupant or recent occupant only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. ​

Click HERE [FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]for the Court’s opinions (majority / concurring / dissenting).[/FONT][/FONT]​

FACTS[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]: Gant was arrested for driving on a suspended license. Gant was handcuffed and locked in a patrol car before officers searched the passenger compartment of his car and found a firearm and cocaine. In his motion to suppress the evidence, Gant argued that it was not possible for him to access the vehicle to gain control of a weapon or evidence, and therefore the search of his vehicle was not a reasonable "search incident to arrest." [/FONT][/FONT]​

HELD: [FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Police are authorized to search the passenger compartment of a vehicle incident to arrest of an occupant or recent occupant only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Additionally, officers may search the passenger compartment following the arrest of a recent occupant when it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle. [/FONT][/FONT]​

DISCUSSION[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]: [/FONT][/FONT]
[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Prior case law: Chimel, Belton, and Thornton. [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]The Supreme Court first established the search incident to arrest ("SIA") exception to the Fourth Amendment’s warrant requirement in Chimel v. California, 395 U.S. 752 (1969). Chimel held that police may, incident to arrest, search the arrestee’s "lunging area," which is defined as the area from within which the arrestee might gain possession of a weapon or destructible evidence. The purposes of this exception are to protect arresting officers and safeguard evidence of the offense that an arrestee might conceal or destroy. The Court was asked to define the scope of a [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]vehicle [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]SIA in New York v. Belton, 453 U.S. 454 (1981). In Belton, the Court held that when an SIA of a vehicle is justified, the entire compartment and any containers therein may be searched. In Thornton v. U.S., 541 U.S. 615 (2004), the Court added that an SIA of a vehicle may be justified even if an occupant has gotten out of the vehicle, closed the door, and walked a short distance away before being arrested. The question remaining, however, was whether the Belton and Thornton rules authorized an SIA of the vehicle regardless of the arrestee’s ability to access the passenger compartment following the arrest. [/FONT][/FONT]​

[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Clarification: arrestee within reaching distance. [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]The majority opinion in Arizona v. Gant has answered that question, holding that prior case law authorizes police to search a vehicle incident to arrest when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. The Court noted that "it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s [/FONT][/FONT]
[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]vehicle remains." In such a rare case, however, an SIA of the passenger compartment would be reasonable under the Fourth Amendment. [/FONT][/FONT][FONT=Times New Roman,Times New Roman]​

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[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]An additional justification: offense-related evidence. [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Even if the arrestee can no longer access the vehicle’s passenger compartment, the Court held that an SIA will also be permitted "when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." In many cases, such as arrests for traffic violations, there will be no reasonable basis to believe that the vehicle contains relevant evidence. In other cases, however, such as arrests for possession of controlled substances, the basis of the arrest will supply an acceptable rationale for searching the arrestee’s passenger compartment and any containers inside. [/FONT][/FONT]​

[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Other vehicle search exceptions remain available. [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]The Court noted that other established exceptions to the search warrant requirement remain available to safeguard evidence and protect the safety of officers. If an officer has a reasonable suspicion that a passenger or recent occupant of a vehicle – whether arrested or not – is dangerous and may gain access to a weapon, he may frisk the passenger compartment for weapons. (This exception is known as a Terry frisk of the vehicle.) If the officer has probable cause that the vehicle contains evidence of criminal activity, the officer may conduct a thorough search of any area of the vehicle in which the evidence might be found. (This exception is called the "mobile conveyance exception" or the Carroll Doctrine.) Finally, if an officer conducting an arrest reasonably suspects that a dangerous person is hiding in a nearby vehicle, he may conduct a protective sweep of the vehicle by looking in places where such a person might be concealed. Although not specifically mentioned by the Court, and not a criminal search tool, an inventory of a vehicle’s contents following a lawful impound is another exception to the search warrant requirement. This administrative exception, however, may not be used as a pretext for a criminal search. Consent remains a viable option as well. [/FONT][/FONT]​

[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]The bottom line. [/FONT]

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[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]To justify a search incident to arrest of a vehicle’s passenger compartment, an officer must articulate that either (1) the officer was unable to sufficiently restrain the arrestee during the search, so that it was reasonable to believe the arrestee might have been able to access the vehicle, or (2) there was a reasonable basis to believe that evidence of the crime for which the occupant of the vehicle was arrested might be found in the passenger compartment at the time of the search. [/FONT][/FONT]​

APPLICATION TO FIELD OFFICERS AND AGENTS[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]: [/FONT][/FONT]

[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Prepare to articulate! [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]The Court noted that "[w]hen asked at the suppression hearing why the search was conducted, [the officer in this case] responded, ‘Because the law says we can do it.’" That answer did not – and will not – meet the government’s burden. While searches of vehicles incident to arrest have been considered "automatic" for 28 years, the holding of Gant states that more is required. Officers must be prepared to articulate [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]facts [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]establishing one of the permitted justifications. [/FONT][/FONT]​

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[FONT=Times New Roman,Times New Roman]Don’t look for the loophole; it’s already closed. [/FONT][/FONT]​

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[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Some may suggest the holding in Gant encourages an unsafe practice of leaving arrestees unsecured in a nearby area to justify a search incident to arrest. Justice Scalia, however, in his concurring opinion in Thornton v. U.S., has already anticipated and answered that argument. He wrote, "if an officer leaves a suspect [/FONT][/FONT]​

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[FONT=Times New Roman,Times New Roman]unrestrained nearby just to manufacture authority to search, one could argue that the search is unreasonable [/FONT][/FONT]​

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[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]precisely because [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]the dangerous conditions justifying it existed only by virtue of the officer’s failure to follow sensible procedures." [/FONT][/FONT]​

When it is all said and done, "Consent searches" or "probable cause" searches are not affected by this. If I ask for and receive consent to search, Gant has nothing to do with that. Just for your information as you were asking about State or federal laws concerning notification of refusing a consent search, our Agency and many others that I know of, have a consent to search form. We must have that signed when practical, which is nearly all the time. There are circumstances that this may not occur. On that form that I read and have the driver read it states,"you have the right to refuse to consent." ​

Probable cause search based on when I approach a vehicle I have stopped and smell the odor of burnt marijuana or see marijuana in plain view, Gant does not affect those either.​

 

otr500, you are right. I have to have a reason to run someone. Sorry I wasn't clear in that. To run someone through NCIC for a wanted check and a license inquiry doesn't take much. I.E. traffic stop, suspicious vehicle, and calls for service, basically any reason I come in contact with a person. When I do come in contact with them and either i have their license/ID card or just a name and date of birth I run the person to check for any warrants and the status of their license (if I have them stopped or investigating anything when they are operating a vehicle.) Thus that is where my slogan "Trust in God, all others I run through NCIC."

Now for criminal history checks. You better have a reason to run criminal history checks, at least with my Agency. If I have arrested someone, I run a CH. I need numerous pieces of information off of their criminal history just to fill out fingerprint cards if they have previously been arrested. CH 's are used by investigators doing criminal investigations on accused persons or suspects. Our Agency, along with every other Agency get's audited from time to time (I don't know, nor do I care about the parameters of that).

 

OTR500 apparently you all of my post. You missed the part that says the LEO can call for a DOT qualified LEO to do a Lvl 1 or 2 while waiting for a warrant. You are also forgetting the "in plain view" clause. That means if a LEO sees what is considered contraband that'll give him/her PC to search your car or truck. Also just because you have a right to ask for this or that it isn't always wise to excerise that right.

 

I have had many dogs go around my truck and none has ever "hit" on it.

Otr500, that tells me you don't do or transport CDS. I wasn't referring that you did in any of my post. Sounds like Texas does things diffently and it sounds suspect to me at best.

I see your point with a non CMV certified inspector LEO stopping you and wanting to search,not getting consent and calling one of the inspector's to check the vehicle. First, I don't go to another officer's stop of a CMV so I can serch it, or the other officer. In my experience another road trooper, deputy or town officer has stopped a CMV and noticed something that didn't appear right, correct or whatever term you want to use. Or they will notice the vehicle appears grossly overweight. I respond, if I'm close, and check the vehicle by doing a CMV inspection. It is not against the law, State or Federal, to do this. I have pulled up behind countless Troops, deputies and town officers over the years when they have had a truck stopped and completed an inspection without them calling for me. Basically, in my State, if it's over 10,000 lbs power unit or combination vehicle it has consented to an inspection at anytime. If I have reason to believe the vehicle is overweight, either gross or axle weight, I can weigh it with portable scales. If I don't have a set of scales, I can escort the vehicle to the closet State scale or private scale (loading facility, grain mill etc) and weigh the vehicle there. Have I had to do that, no. But that is well within the scope of the law. Again that will vary from State to State. The problem with a lot of the laws is this, the FMCSA CRF Title 49 Regulations, have been adopted as State law in my State. On top of that there is seperate State laws pertaining to trucks/buses. Some laws get trumped by the federal guidelines, some federal laws have exemptions in my State for certain things. It can be very confusing for the officer and operator. As I have stated before, I have been doing trucks now for almost 10 years. It took me a good three years before I was comfortable with all aspects of CMV law, weights etc. It's a lot of exemptions, lots of scenarios and a lot of learning. In contrast when I worked the road as a road trooper, after about a year I had handled or been on scene of anything and everything I would have to handle, from rapes, robberies, murders,motor vehicle fatals/collisions, suicide, and MDOP etc. I still learn each and everyday something in the world of trucks. And with laws and guidelines that change every now and again you have to stay on top of it. As for criminal law, that is ever changing as well from State to State. It seems every year there is a new twist to State law, or guidelines that have to be followed whether law or Agency policy. Case law like Gant comes out every so often and changes the landscape as well.