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Supreme Court Will Rule on Vehicle Searches

(Click here to view the original thread on the MassCops Message Board)

Posted by: kwflatbed

The Associated Press



WASHINGTON --
The Supreme Court agreed Monday to decide when police without a warrant can search the vehicle of a person who is under arrest.
Rodney Joseph Gant was handcuffed, seated in the back of a patrol car and under police supervision when Tucson, Ariz., police officers searched his car.
A sharply divided Arizona Supreme Court ruled that the search violated the Constitution's Fourth Amendment. The state asking the U.S. high court to overturn that ruling.
The justices said they will hear the case next fall to decide whether officers must demonstrate a threat to their safety or the need to preserve evidence to justify a warrantless search in cases like Gant's.
Gant was arrested about 10 feet away from his parked car. When officers searched the car they found cocaine and drug paraphernalia.
The trial court said the evidence could be used against Gant, but Arizona appeals courts overturned the convictions because the officers already had secured the scene and thus faced no threat to their safety or concern about evidence being preserved.
The state said the ruling, if allowed to stand, would impose a "dangerous and unworkable test" that would complicate the daily lives of law enforcement officers.
The case is Arizona v. Gant, 07-542.


Wire Service


Posted by: SinePari

NJ already got their nuts twisted about this


Posted by: j809

Search incident to arrest, unless they went in the trunk.


Posted by: phuzz01

Quote:
Originally Posted by SinePari View Post
NJ already got their nuts twisted about this
The difference is that states like NJ and NH have state constitutions that are more restrictive of law enforcement than the federal constitution. In those states, the state constitution forbids search of vehicles incident to arrest when the arrestee is cuffed and in the cruiser. In this case, the AZ Supreme Court did not use the state constitution, but rather ruled that the US 4th amendment prohibited it. If that decision is upheld, you can kiss search of vehicle incident to arrest goodbye in EVERY state.


Posted by: CampusOfficer

Quote:
Originally Posted by j809 View Post
Search incident to arrest, unless they went in the trunk.
I am not disagreeing with you, but does that apply even if he is arrested 10 feet away from his vehicle?? I don't know what the initial arrest was for though.


Posted by: SinePari

Quote:
Originally Posted by CampusOfficer View Post
I am not disagreeing with you, but does that apply even if he is arrested 10 feet away from his vehicle?? I don't know what the initial arrest was for though.
The title is misleading and it doesn't say whether it was a traffic stop or he was a pedestrian near his vehicle. It's kind of alluding to the fact that it wasn't a m/v stop. So unless the vehicle bears p/c of the crime he was arrested for, I'd say it's a closed case, appeal affirmed. It won't affect how we do business.


Posted by: soup

You can never search a motor vehicle incidental to arrest. (not in MA anyways). The search incidental to arrest is for within the suspects leaping, reaching or lunging area where they could get a weapon or destroy evidence. If the guy is handcuffed and in the rear seat of your cruiser, then this aint happening. Your department should have a written motor vehicle inventory policy prior to towing. It protects us from groundless claims of damage or theft. That will get you in the car all day and all night.


Posted by: chiefwiggum

Quote:
Originally Posted by soup View Post
You can never search a motor vehicle incidental to arrest. (not in MA anyways). The search incidental to arrest is for within the suspects leaping, reaching or lunging area where they could get a weapon or destroy evidence. If the guy is handcuffed and in the rear seat of your cruiser, then this aint happening. Your department should have a written motor vehicle inventory policy prior to towing. It protects us from groundless claims of damage or theft. That will get you in the car all day and all night.

I agree hasn't this already been decided? Unless there is P.C. or you are doing an inventory search.


Posted by: mikemac64

Quote:
Originally Posted by soup View Post
You can never search a motor vehicle incidental to arrest. (not in MA anyways).
Sure you can. Generally, you can search for the fruits or instrumentalities of the crime. Under the motor vehicle exception, if you stop a guy for speeding, and see 94c in plain view or smell, you can conduct a warrantless search of that car anywhere there may be weed secreted. You don't even need to make the arrest as PC for arrest is good enough to search. You can let the hump go on a summons if you want. If it were a house you would need a warrant.

If you lock him up on a suspended license, you can only search within the scope of your inventory policy as there are n fruits of the crime.


Posted by: soup

Quote:
Originally Posted by mikemac64 View Post
Sure you can. Generally, you can search for the fruits or instrumentalities of the crime. Under the motor vehicle exception, if you stop a guy for speeding, and see 94c in plain view or smell, you can conduct a warrantless search of that car anywhere there may be weed secreted. You don't even need to make the arrest as PC for arrest is good enough to search. You can let the hump go on a summons if you want. If it were a house you would need a warrant.

If you lock him up on a suspended license, you can only search within the scope of your inventory policy as there are n fruits of the crime.

Exactly, When you search under the motor vehicle exception rule you are searching for fruits or instrumentalities of the suspected crime based upon PROBABLE CAUSE. It is not a search incidental to an arrest. YOU WILL NEVER SEARCH A MOTOR VEHICLE INCIDENTAL TO AN ARREST.

Never, ever, ever, ever say that you "Searched a vehicle doing an inventory" or that you did "An inventory search" You are not searching the car, you are "doing an inventory of the vehicles contents in accordance with your department's written, container specific inventory policy designed to protect you and your department from groundless claims of damage, loss or theft."


Posted by: 94c

Sorry, but you can always search incidental to an arrest for evidence of the crime that he was arrested for regardless of him being handcuffed in the back seat or not.

We have a state statute that covers that.


Posted by: soup

Quote:
Originally Posted by 94c View Post
Sorry, but you can always search incidental to an arrest for evidence of the crime that he was arrested for regardless of him being handcuffed in the back seat or not.

We have a state statute that covers that.
Not a motor vehicle. Motor vehicle exception based upon PC, Warrant, Consent, Furtive movements or Inventory are the only ways your getting into the car.


Posted by: O-302

Quote:
Originally Posted by soup View Post
Not a motor vehicle. Motor vehicle exception based upon PC, Warrant, Consent, Furtive movements or Inventory are the only ways your getting into the car.

You can absolutely search a motor vehicle incident to arrest under MGL C 276 S 1 for the following two reasons:

1) seizing fruits, instrumentalities, contraband, and other evidence of the crime for which the arrest has been made, in order to prevent it's destruction or concealment ( if the crime for which the person was arrested carries no evidence then you cannot search)

2) removing any weapons that the arrestee might use to resist arrest or effect his escape (this option is always available and is automatically triggered with an arrest)

If the arrestee is not in a position to conceal or destroy evidence or access a weapon (handcuffed in the rear seat of a police cruiser), then you cannot search incident to the arrest....then there are the other options you mentioned above available...there is nothing in the statute which restricts the place of the search...

see Comm v. Bongarzone, a 1983 case which held that the rear portion of an SUV was within the meaning of passenger compartment for purposes of a search of a MV incident to arrest...


Posted by: soup

I was referring to a situation where the guy is already under arrest. I believe that was the case in the search that is being challenged. A search incidental to arrest will not fly in court if the guy is not in the position to destroy evidence. Written container specific inventory policies are the best thing ever.


Posted by: CTO

Thornton v. United States


officers can search the passanger compartment of vehicle incident to the arrest of an occupant of the vehicle or the recent occupant of the vehicle.


Posted by: phuzz01

Quote:
Originally Posted by CTO View Post
Thornton v. United States

officers can search the passanger compartment of vehicle incident to the arrest of an occupant of the vehicle or the recent occupant of the vehicle.
Despite that federal case law, the individual state Constitutions can be MORE restrictive of law enforcement, and apply more rights and protections than the federal Constitution. Many states have chosen to do so by limiting law enforcement searches of vehicles incident to arrest when the arrestee is already handcuffed in the cruiser, and therefore unable to destroy evidence or obtain weapons from the car.


Posted by: Kem25

Regardless of the circumstances if I have somebody under arrest and I am towing the vehicle I always consider it an inventory according to department policy. Just a suggestion is for people to be familar with the inventory policy because when you do hit the jackpot you can bet a lawyer will grill you about your knowledge. I had a buddy who case got tossed because he did not list the gun he found on the department inventory form....BS I know but it happens.


Posted by: CTO

The States allways have the option to be more restrictive then the federal system, however when the Supreme court looks at the case they will apply the federal case law to the question.


Posted by: kttref

An inventory search is the best way to get into a vehicle after someone is placed under arrest. For a number of reasons:

1. You have the opportunity to find anything related to the crime (s)he was arrested for.

2. You have the opportunity to find anything NOT related to the crime, but that may be criminal.

3. You remove (or list depending on policy) all valuables - so that when the arrested goes back to the car and something isn't there - you are covered.

As long as your policy allows, an inventory search is key!


Posted by: phuzz01

Quote:
Originally Posted by CTO View Post
The States allways have the option to be more restrictive then the federal system, however when the Supreme court looks at the case they will apply the federal case law to the question.
That is not true. In most motions to suppress evidence, the defendant will argue that you violated both his state and federal constitutional rights. Even if your search is determined to be lawful under the federal constitution, if it is found to violate the state constitution, the evidence IS suppressed. Both your state supreme court and the US supreme court can and will consider violations of the state constitution when deciding whether a search was unlawful. In order for a search to be lawful, it must not violate either the state or federal constitution.

In fact, most of the time, the opposite of what you say is true. Many state supreme courts say that their state constitution is at least as restrictive as the federal constitution in all situations. Therefore, they say that they will only consider whether the search was lawful under the state constitution, since the federal constitution provides no additional protections.

Applied to this situation: it does not matter if searching a vehicle incident to arrest is lawful under the federal constitution. If your state supreme court has ruled that when a person is handcuffed in the back of the cruiser, a search of their vehicle incident to arrest is unlawful, then any court from the district level all the way up to the US supreme court can suppress the evidence gained from that unlawful search under state constitutional grounds.

Note that I am not discussing an inventory of the contents of the vehicle pursuant to your department's written policy. That is a whole different kettle of fish. I am only talking about using the search incident to arrest exception to the search warrant requirement to search a vehicle after the bad guy has been cuffed and put in the cruiser.

Quote:
Originally Posted by kttref View Post
An inventory search is the best way to get into a vehicle after someone is placed under arrest.
Just keep in mind that the inventory is not done for the purpose of finding contraband, but to protect the defendant, the police department and the tow truck from liability due to lost property. If looking at the totality of the circumstances, the court determines that you are using the inventory as a way to search for contraband and circumvent the search warrant requirement, any evidence that you locate could be suppressed.

The key is to make sure that you can articulate that any contraband you discovered during the inventory was found "inadvertently." You weren't looking for it, you just happened to come across it while doing your required inventory. So for one, don't try to perform searches that are obviously for the purpose of locating contraband under the inventory exception (e.g. removing panels looking for hidden compartments or using a K9). And for another, make sure that you perform the inventory in such a way that it is clear that you are actually documenting property (e.g. write down serial numbers, approximate values, etc).


Posted by: kttref

Quote:
Originally Posted by phuzz01 View Post
Just keep in mind that the inventory is not done for the purpose of finding contraband, but to protect the defendant, the police department and the tow truck from liability due to lost property. If looking at the totality of the circumstances, the court determines that you are using the inventory as a way to search for contraband and circumvent the search warrant requirement, any evidence that you locate could be suppressed.

The key is to make sure that you can articulate that any contraband you discovered during the inventory was found "inadvertently." You weren't looking for it, you just happened to come across it while doing your required inventory. So for one, don't try to perform searches that are obviously for the purpose of locating contraband under the inventory exception (e.g. removing panels looking for hidden compartments or using a K9). And for another, make sure that you perform the inventory in such a way that it is clear that you are actually documenting property (e.g. write down serial numbers, approximate values, etc).

Agreed....




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