CO: Gant x 2

Defendant was stopped after officers surveilling a head shop, and he produced a still wrapped pipe. This was insufficient to justify a search incident of his car under Gant. Even if Gant applied, the court would not make the good faith exception to this warrantless search retroactive. People v. McCarty, 229 P.3d 1041 (Colo. 2010).

Under Gant, a search of a glove compartment in a car is unlawful where the driver was neither within reaching distance of the vehicle’s passenger compartment and there was no indication that any evidence of the offense of arrest would be found in the car. Even if the driver disclaimed any possessory interest in the glove compartment, his possessory interest in the car itself prevents an officer from entering the vehicle in order to access the glove compartment within it. Perez v. People, 231 P.3d 957 (Colo. 2010):

Even if we assume, without deciding, that Perez lacked a possessory interest in the glove compartment, such a conclusion would be irrelevant. Both sides in this case agree that Perez had a possessory interest in the car and therefore had standing to protest the search of the car itself. As we have explained above, Gant leaves the officers in this case with no lawful basis to search the vehicle without a warrant. Because the officers could not access the glove compartment without first gaining access to the car itself, the police could not lawfully access the glove compartment. This is the necessary and unavoidable result of Gant. Unless some other established exception to the warrant requirement applies, a container cannot be accessed if the vehicle containing it cannot be searched under Gant. See, e.g., Pineda v. People, 2010 Colo. LEXIS 359, 08SC756 (Colo. May 10, 2010). No other exception to the warrant requirement was argued in this case.