D.Mont.: How many ways can this vehicle search be sustained that go unmentioned?

Defendant was stopped for driving erratically through a construction zone, and when stopped, he was acting strange and officers ordered his hands up. He slowly raised them with a cell phone in hand. Hands on guns, officers approached and saw a shotgun on the front seat near him and ammunition and other ammunition “brass.” Defendant was quickly found to be a SVP from his records check, thus a felon. The seeing and seizure of the gun was “within the boundaries contemplated in a search incident to arrest: it was laying on the front passenger seat right next to Thum and within his immediate control.” United States v. Thum, 2017 U.S. Dist. LEXIS 147488 (D. Mont. Sept. 11, 2017). Note: Plain view is not mentioned, but that applies too. The gun was a clear safety threat which enables the officers to enter the car to separate the gun from the occupant. Thus, a protective weapons search under Michigan v. Long was authorized. Running defendant’s DL number almost certainly flagged him as an SVP immediately, which means he was a felon, and then the arrest follows.

Similar: The search of defendant’s car was valid as a search incident because there was specific information cash for a drug deal was in the car. The court expressly declines to separately decide the search under the automobile exception. United States v. Chambers, 2017 U.S. Dist. LEXIS 147219 (D. Del. Sept. 12, 2017).*

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