S.D.Iowa: SI of gym bag violated Gant

Search incident of defendant’s gym bag was invalid under Gant because defendant was arrested in a taxicab, handcuffed, the bag was in the taxi, and then the officers decided to search the gym bag. Suppression hearing was pre-Gant, and it was rebriefed after Gant. United States v. Allison, 2009 U.S. Dist. LEXIS 73808 (S.D. Iowa July 24, 2009):

Here, Defendant was handcuffed behind his back, leaning against the rear bumper of the taxicab, while surrounded by three law enforcement officers. Deputy Shepherd testified that Defendant was under control at the time Deputy Hedgecock removed the gym bag from the taxi-cab. Defendant had no ability to access the interior of the taxicab, much less the contents of the gym bag. Shipp, too, was in custody and had been placed in the back of Officer Purcell’s squad car. The Government produced no testimony either that the taxicab driver was a suspect or that the officers felt the need to secure the gym bag on his account. The law enforcement officers did not testify that the gym bag was itself of such “incriminating character to be immediately apparent” that it contained contraband. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Consequently, the bag presented no concerns for officer safety that would justify a Terry search of the bag’s contents. See Gant, 129 S. Ct. at 1719; United States v. Lopez, 567 F.3d 755 (6th Cir. 2009).

Defendant was not under arrest at the time Deputy Hedgecock removed the gym bag from the taxicab. It was not until Officer Purcell performed a warrant check on Defendant, and discovered that Defendant had an outstanding warrant in Polk County for a probation violation, that Defendant was placed under arrest. Furthermore, even if Defendant had been under arrest at the time Deputy Hedgecock removed the gym bag, the law enforcement officers could not have reasonably “believe[d] evidence relevant to the crime of arrest might be found in the vehicle,” and therefore the search incident to arrest exception would not apply. Gant, 129 S. Ct. at 1719; see Lopez, 567 F.3d 755 (“There was no reason to think that the vehicle contained evidence of the offense of arrest, since that offense was reckless driving.”); United States v. Majette, No. 08-4427, 2009 WL 1154270, at *2 (4th Cir. Apr. 30, 2009) (finding that, where the crime of arrest was driving with a suspended license, the arresting law enforcement officer would not have had a reasonable basis to believe he would find evidence of the crime of arrest by searching the defendant’s car). … Consequently, Deputy Hedgecock had no basis upon which to search the gym bag and therefore was not justified in removing it or disturbing its contents.

A confusing complaint of conspiratorial allegations was properly dismissed but for the Fourth Amendment claim that stated enough to go forward for the time being. Remanded. Edge v. Payne, 2009 U.S. App. LEXIS 18818 (10th Cir. August 20, 2009) (unpublished).*

In a civil case over wrongful arrest, officers had exigent circumstances for entry into a domestic violence shelter for alleged drug overdose because of children there. Efforts to keep officers out of the shelter under its policy to require search warrants for entry only heightened the officer’s suspicions. Brooks v. Rothe, 577 F.3d 701, 2009 FED App. 0299P (6th Cir. 2009) (unpublished).*

Search of a glove compartment for a gun after the defendant said that there was gun in there was permissible under the automobile exception. United States v. Chatman, 2009 U.S. App. LEXIS 18783 (11th Cir. August 20, 2009) (unpublished).*