Officer Safety Impacted: U.S. Supreme Court Places Restrictions on Car Searches

[MedicSN6]

Public Agency Training Council

 

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.

 

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.

 

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.

 

The Arizona Supreme Court outlined the facts regarding the search of Gant’s vehicle as follows:

 

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.

 

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.

 

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

 

The Supreme Court of Arizona asserted the issue in the case:

 

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. In agreeing to an appeal in the case, the United States Supreme Court limited the question in the case to the following:

 

“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?”

 

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?

 

The Decision

 

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.”

 

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.”

 

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.”

 

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.”

 

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.”

 

BOTTOM LINE:

 

Simply stated the new rules justifying search incident to arrest of the passenger compartment of a vehicle are:

* Lawful Arrest; and * Search Must take place at the time of the arrest (contemporaneous with arrest); and * The arrestee must have the possibility of access (thus not yet secured); OR * There is a likelihood of discovering offense related evidence (the offense for which the subject is being arrested)

 

It is noted that law enforcement may still rely on other exceptions to the warrant requirement with respect to motor vehicles where applicable.

 

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)

 

http://www.policelink.com/training/article...utm_source=nlet

Edited April 23, 2009 by Medic~SPARTA~

[Elvis~SPARTA~]

This doesn't significantly impact safety, and enhances the right of privacy for individuals.

 

It simply states that if the suspect is handcuffed in the back of the police car or otherwise removed from the vehicle, they probably aren't going to have access to their former vehicle, so a search of the vehicle incident to the arrest isn't reasonable.

 

However, if there is probable cause to believe there is evidence in the vehicle, it still can be searched. If not, the police have no reason to look around.

 

And, officers still can make a protective sweep of the vehicle for weapons. This would be a great idea if there were other people in the vehicle.

 

Also, if the vehicle is going to be impounded, it can be searched according to the impound policy of the department.

 

I haven't heard of a safety scenario yet that is compromised by this.

[Elvis~SPARTA~]

Oh, I forgot the easiest one, consent. You can always ask for consent.

[Cylawyer~SPARTA~]

Let me preface this by saying, "I AM NO FAN OF CRIMINALS," even if I have defended a bunch. I have also defended many innocent people.

 

However, this is a very good ruling. LEOs (Law Enforcement Officers), while sometimes well intentioned and sometimes not, have regularly walked all over constitutional guaranties against "unreasonable search and seizures." As a result, I myself have seen (and represented some) dozens and dozens of innocent persons prosecuted through guilt by association while riding as passengers in a vehicle driven by someone with (often unknown to the passenger) a suspended license. Likewise, drivers themselves whose only real crime (and sometimes after sorting it out it was a mistake and not a crime at all as they were not aware of it) was driving on a suspended license have picked up other unwarranted charges like:

 

1. Carrying a concealed weapon while exercising their constitutional right to have a gun and were actually following the state of the law by having the hand gun unloaded under the seat with the ammo in a different area, but cops charged them anyway after searching the car and finding it, or

 

2. Where the gun was in the glove box (insufficient under this state's law for "carrying" a concealed weapon), or

 

3. Where the gun was under the back seat and out of easy reach of the driver who was charged.

 

4. Passengers charged under scenarios 1,2 or 3 above, but had no knowledge of the weapon.

 

5. Drivers or Passengers charged when their purses were searched (against the law in Florida even prior to this ruling, but often done anyway) and they were taken in for possession of controlled substances. Many times they had a little bottle to carry pills that were legal because they were actually prescribed to them, but carried them in a convenient pill dispenser. Many cases like this sort themselves out later, but not until after the person is arrested, booked into jail, had to come up with bail money (often thousands of dollars) or sat in jail for a long time because they couldn't afford bail, and been drug through the court system. I have seen many persons take a no contest or guilty plea just so they could get out of jail and be on probation when they could not afford bail and the judge wouldn't lower the bond/bail. I have advised against it and still seen it happen because they lived alone, had noone to assist them in getting their proof of prescription so the state attorney would drop the case.

 

There are too many other circumstances to list here where LEO abuse of rights against "unreasonable" search and seizure resulted in innocent people being hauled to jail, require bail or sit there and ultimately take a plea or just be drug through the court system, lose your job in the meantime either for jail or just the employer gets wind of the charges or from taking time off to go to too many court appearances.

 

This ruling doesn't prevent "reasonable" searches and seizures, but certainly spells out with more specificity what constitutes "reasonable" and will hopefully protect more peoples constitutional rights.

 

In case you ask why were some of these drivers violating the law by driving on a suspended license, consider the following:

 

Often drivers did not realized their license was suspended, there are a variety of reasons for this.

 

Sometimes drivers had an accident and their insurance company dropped them, sent them a letter and notified the state. However, the driver was stupid (his or her only real crime) and had not updated their address when they had recently moved. While required to do so, it is often only a citation and not a crime (at least in Florida) unless you haven't updated it and it has been over four months since the change. Therefore, because they are stupid, they didn't get the notice. At least in Florida, driving without knowledge that your license was suspended is not a crime but is citable, but will occassionally result in charges anyway because the LEO assumes the person knew and it doesn't get sorted out until later.

 

Another reason, person got a traffic ticket, didn't get notified of the actual court date, because again they were stupid and didn't update address. So, a fine was assessed against them when they didn't show up in court and then the notice of the fine went to old address and wasn't forwarded (just like ticket or insurance lapse notice). Thus dummy didn't pay fine in time resulting in suspension of license, later arrest and ultimately the unreasonable search and trumped up charges.

 

Many times people tell me, well, if you are obeying the law, you should have nothing to fear about a search and if they haven't already violated your rights with an "unreasonable" search, you should consent if asked. I say, "never consent"! While most LEOs are respectable people doing their best in a dirty world, sometimes you have dirty LEOs who plant shit on people (often stuff they squirreled away from another bust to dump on someone they don't like or someone who gives them lip during a stop) or respectable ones having a bad day and acting over zealous. YOU could be the next victim and I don't think you'd much like it.

 

FURTHERMORE, America is founded on the concept that if a search is unreasonable, then it shouldn't matter whether the only result was a waste of your time!! It shouldn't have been wasted!

 

So with all due respect to many fine LEOs out there, many of whom are close personal friends of mine, keep 'em "reasonable" or otherwise FUCK OFF!!

[Xross]

I'm def' with Cy on this one and have LEOs in my family.

 

They would agree as well (maybe not enthusiastically).

 

Nice write up there young litigator.

 

Retainer check is in the mail..lol

[Cylawyer~SPARTA~]

By the way, "Officer Safety" is an abused term. In most cases, though not all, there is no possible safety issue, but LEOs will often use the "OS" term as a justification for acts that aren't right with the law the way it is supposed to be, nor with Jesus for that matter.

[Xross]

Though I do agree we can not turn this place into a police state when it comes to Officer Safety we may agree to disagree in this touchy area.

 

This particular subject matter can bring forth a strong emotional response based on personal experience so perhaps we should wrap this one up.

 

Cheers

 

 

 

 

 

[Cylawyer~SPARTA~]

Don't get me wrong X-wind, I do think it is a valid concern many times, just abused at other times.

[Durka-Durka~SPARTA~]

This may be a good time to ask the liti-gator what the law is exactly concerning guns in cars. Do you have to have a concealed/carry permit to have one in the car? If not, it just has to be unloaded and kept out of the driver's reach? That would negate the need for a weapon in your car.

 

And lastly, what about Ka-Bars? I have a Ka-Bar in my truck for defense and letter opening. Is that against the law? Even though every time I handle a knife I cut myself (lots of scars) it's safer for me than a pistol, cause I know I'd shoot my foot off.

[MedicSN6]

Obviously, I am not the Liti-gator but I will tell you that laws the laws that you are asking about vary greatly state to state. I would contact your local court office and ask them what the code sections for the state regarding the carry and concealed carry of firearms. Once you know what the sections are, you can simply google it. I know that Virginia's State Police website is the location of the Code of Virginia and it even has a search feature. It is east enough to find what you are looking for.

 

Now, here's the rub... translating said code into english. This is where Cy might come in handy.

 

On a different note, I have thought a lot about a certain situation regarding the Code of Virginia and the Constitution.

 

The CoVA states (not verbatim) that a property owner has the right to restrict the carry, concealed or other wise, as the owner deems fit on his or her respective property. These owners include persons, organizations, and corporations alike.

 

The 2nd Amend. of the U.S. Constitution states that all people have the Right to defend themselves with the use of a firearm which includes simply possessing the firearm.

 

My question is whether or not the State has within its power the ability to grant to a person, organization, or corporation, the ability to remove and or limit a right which is granted by the Constitution.

 

Take for instance a certain hospital which has a 'no weapons policy.' Now, the repercussions of carrying a weapon on to this property will only result in the issuance of a Trespass Notice for a non-employee and for the Employee, possible loss of job and a Trespass Notice. You are technically NOT breaking the law by breaking a private party's house rule, and they have no legal requirement to report it to the Police, because they aren't going to do anything but tell you to leave the property.

 

My problem is how can a private entity take away your constitutional right to possess a firearm?

Edited April 24, 2009 by Medic~SPARTA~

[Zeno~SPARTA~]

And lastly, what about Ka-Bars? I have a Ka-Bar in my truck for defense and letter opening. Is that against the law? Even though every time I handle a knife I cut myself (lots of scars) it's safer for me than a pistol, cause I know I'd shoot my foot off.

 

Ahhh, fond memories of the famous durka nades come flooding back.

[Morgan]

Obviously, I am not the Liti-gator but I will tell you that laws the laws that you are asking about vary greatly state to state. I would contact your local court office and ask them what the code sections for the state regarding the carry and concealed carry of firearms. Once you know what the sections are, you can simply google it. I know that Virginia's State Police website is the location of the Code of Virginia and it even has a search feature. It is east enough to find what you are looking for.

 

Now, here's the rub... translating said code into english. This is where Cy might come in handy.

 

On a different note, I have thought a lot about a certain situation regarding the Code of Virginia and the Constitution.

 

The CoVA states (not verbatim) that a property owner has the right to restrict the carry, concealed or other wise, as the owner deems fit on his or her respective property. These owners include persons, organizations, and corporations alike.

 

The 2nd Amend. of the U.S. Constitution states that all people have the Right to defend themselves with the use of a firearm which includes simply possessing the firearm.

 

My question is whether or not the State has within its power the ability to grant to a person, organization, or corporation, the ability to remove and or limit a right which is granted by the Constitution.

 

Take for instance a certain hospital which has a 'no weapons policy.' Now, the repercussions of carrying a weapon on to this property will only result in the issuance of a Trespass Notice for a non-employee and for the Employee, possible loss of job and a Trespass Notice. You are technically NOT breaking the law by breaking a private party's house rule, and they have no legal requirement to report it to the Police, because they aren't going to do anything but tell you to leave the property.

 

My problem is how can a private entity take away your constitutional right to possess a firearm?

 

Wikipedia:

 

Three models of interpreting the right to bear arms in the United States commonly exist. These three models are founded on differing interpretations of the Second Amendment, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

The first two models focus on the preamble, or "purpose" clause, of the Amendment ? the words "A well regulated Militia, being necessary to the security of a free State." The first model, the collective model, holds that the right to bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia. The second model, the modified collective model, is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed.[55]

 

The third model, the Individual Rights Model, holds that a right of individuals is to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech.[55] This view was adoped by the Supreme Court in District of Columbia v. Heller (2008). Prior to the Supreme Court's ruling in Heller there was a split among the federal courts, with nine of the federal circuit courts of appeal supporting a modified collective rights view, two of the federal circuits supporting an individual rights view, and one federal circuit court having not addressed the question.[56]

 

Supreme Court justice Antonin Scalia in 2008 wrote that the right to bear arms is not unlimited and is subject to reasonable prohibitions and regulations and subsequently federal court rulings have upheld existing gun prohibitions and regulations.[57]

 

Nadine Strossen, President of the ACLU, has stated the argument that the Individual Rights model must yield to reasonable regulation.[58] "Let?s assume for the sake of argument it does protect an individual right," said Strossen, "it is no more absolute than freedom of speech or any other right in the Constitution. No right is absolute; the government is always allowed to restrict the right if it can satisfy Constitutional strict scrutiny and show the restriction is narrowly tailored to promote a goal of compelling importance."[59]

 

At the state level, each of the fifty state constitutions, state laws, and state courts address the state-based right to bear arms distinctly within their respective jurisdictions.[60] The degree and the nature of the protection, prohibition, and regulation at the state level varies from state to state. The District of Columbia, not being a state, falls within the federal jurisdiction.

 

In the Nineteenth century, in the United States, considerable attention in public discourse and the courts was directed to the issue of the risks of arming of slaves (prior to the Civil War), and later to the right of the Negro people to belong to militia and the arming of the Negro people. Most famously this is seen in the court arguments of the court case Dred Scott v. Sandford, whether the slave Dred Scott could be a citizen, with rights, including the right to bear arms. This debate about the rights of slaves and former slaves often included the usage of the term 'bear arms' with the meaning of individual Negroes having or not having the right to possess firearms.

 

In October 2001, the United States Court of Appeals for the Fifth Circuit stated:

 

"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service."[61][62]

 

The Emerson decision was consistent with a view of Constitutional interpretation known by its principal advocates[63] as the "Standard Model" view, and alternatively referred to as the "Individualist view".[40][64] There is some dispute whether the "individualist view" predates the collective "militia view" in American jurisprudence. Some assert[who?] the "militia view" first appeared only in the early to mid 1990s.[65][66] A contrasting opinion asserts[who?] the militia view long predates the individualist view, with the individualist view dating back to only 1960.[40][67][68]

 

In the late twentieth (20th) century, gun advocates argued[69] that the term 'keep and bear arms' means and has meant keeping and bearing private arms for self defense or hunting purposes. The 1986 TV film The Right of the People refers to this for self-defense against crime. [70]

 

The Second Amendment of the United States has also been viewed by many private Americans, including those who are part of the modern militia movement as providing a means for resisting governmental tyranny, also known as the "insurrectionary theory of the Second Amendment". The modern militia movement in the United States has sought to advance its case through selective quoting on websites and publications the words of the founding fathers, though the accuracy of these quotations has been debated. What is notable is that the quotations generally align not with the Federalist Framers, but rather with the Anti-Federalist objectors to the Constitution. People sympathetic with the modern militia movement object to this analysis.[71][72]