FL5: Theft is an offense for which a SI under Gant can occur

Defendant’s arrest for theft justified a search incident because that was crime for which evidence could be found. Brown v. State, 24 So. 3d 671 (5th DCA 2009):

Our conclusion on this issue finds ample support in the concurring opinion of Justice Scalia in Thornton. In discussing the “evidence gathering” justification for a search incident to arrest, he observed that a “motorist may be arrested for a wide variety of offenses; in many cases, there is no reasonable basis to believe relevant evidence might be found in the car.” Thornton, 541 U.S. at 632 (Scalia, J., concurring). Justice Scalia cited Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001) (involving failure to wear seatbelt), and Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998) (involving speeding), as examples of these types of cases. It is clear from this discussion that the “nature of the charge” is determinative of whether there exists a reasonable basis to search for evidence, not whether there is some independent evidence that gives rise to a belief that the particular vehicle contains evidence. Id. at 630. As Justice Scalia observed: “[I]t is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended.” Id. Where, as here, the offense of arrest is such that police could “expect to find” fruits and instruments of the crime, the search is justified as an incident to the arrest because it is reasonable to believe that evidence might be found.

While there is a limited expectation of privacy in computer files, defendant took his computer to a repair place, and, in the normal course of repairs, the technician came upon a file labelled “Pedo” and he could open it. Doing so, he was not a government actor under the federal or state constitutions. Brackens v. State, 312 S.W.3d 831 (Tex. App.—Houston (1st Dist.) 2009).*