“Reason to believe” under Gant is less than probable cause. United States v. Turner, 2024 U.S. App. LEXIS 30565 (4th Cir. Dec. 4, 2024):
Neither the Supreme Court nor this court has articulated the precise quantum of proof necessary to satisfy Gant’s “reasonable to believe” standard. But as the district court observed, our cases “indicate that [‘reasonable to believe’] is a less demanding standard than probable cause.” Turner, 2021 U.S. Dist. LEXIS 112186, 2021 WL 2435609, at *3. We made that point most clearly in United States v. Baker, 719 F.3d 313 (4th Cir. 2013), contrasting the Gant search-incident-to-arrest exception with the automobile exception. The automobile exception, we explained, is in some ways the broader of the two, allowing police officers to “search a vehicle for evidence of any crime, not just the crime of arrest” as permitted by Gant. Id. at 319. But there is a catch: Under the automobile exception, police may search only “on a showing of probable cause,” rather than the “mere reasonable belief” that will justify a search incident to arrest under Gant. Id. (emphasis added); see also United States v. Davis, 997 F.3d 191, 201-02 (4th Cir. 2021) (considering the Gant “reasonable to believe” standard after first finding an absence of probable cause under the automobile exception). Our precedent may not conclusively define Gant’s “reasonable to believe” standard, in other words, but it does treat that standard as requiring something less than probable cause.
Like the district court, we think that is the most sensible reading of Gant. Most obviously, if the Supreme Court in Gant had intended to set the bar at probable cause, then it could have just said so; “probable cause” is an often used and well-understood Fourth Amendment term of art, and its absence from Gant’s search-incident-to-arrest analysis is conspicuous. United States v. Edwards, 769 F.3d 509, 514 (7th Cir. 2014) (Gant Court’s “choice of phrasing” suggests a standard “less demanding” than probable cause); see Wynne v. Town of Great Falls, South Carolina, 376 F.3d 292, 298 n.3 (4th Cir. 2004) (“[C]arefully considered language of the Supreme Court … generally must be treated as authoritative.”). Moreover, Gant permits a vehicular search incident to arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Baker, 719 F.3d at 317 (quoting Gant, 555 U.S. at 343) (emphasis added). While that formulation is not used consistently throughout the opinion, see Gant, 555 U.S. at 351, its prominence further suggests that the Gant Court had in mind a level of suspicion lower than probable cause. Cf., e.g., Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (defining probable cause as “a fair probability that contraband or evidence of a crime will be found in a particular place” (emphasis added)).
Finally, there is a more practical point. As the district court explained, see Turner, 2021 U.S. Dist. LEXIS 112186, 2021 WL 2435609, at *3 n.2, because the automobile exception allows for a warrantless search of a vehicle for any contraband or evidence on a showing of probable cause, reading Gant also to require probable cause would render its search-incident-to-arrest exception largely redundant. That result would be especially odd because Gant is at pains to distinguish the two doctrines. Gant, 556 U.S. at 347; see United States v. Vinton, 594 F.3d 14, 25, 389 U.S. App. D.C. 199 (D.C. Cir. 2010) (“Presumably, the ‘reasonable to believe’ standard requires less than probable cause, because otherwise Gant’s evidentiary rationale would merely duplicate the ‘automobile exception,’ which the Court specifically identified as a distinct exception to the warrant requirement.”).
For all these reasons, we agree with the district court that Gant’s “reasonable to believe” standard can be satisfied with something less than probable cause. That conclusion aligns with the approach taken by our own precedent and with the views expressed by our sister circuits, see Edwards, 769 F.3d at 514; United States v. Rodgers, 656 F.3d 1023, 1028 n.5 (9th Cir. 2011); Vinton, 594 F.3d at 25, and we think it is most faithful to the Supreme Court’s opinion in Gant.
2.
We need go no further today in explicating Gant’s “reasonable to believe” standard – considering, for instance, how it relates to the “reasonable suspicion” standard associated with Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Cf. Vinton, 59 F.3d at 25 (comparing Gant’s “reasonable to believe” standard to the “reasonable suspicion” standard); Brinkley, 980 F.3d at 395-96 (Richardson, J., dissenting) (discussing Supreme Court’s use of “reasonable suspicion,” “reasonable belief,” and “reason to believe” in Terry and other contexts). That is because we agree with the district court in a second respect: Whatever the precise contours of Gant’s “reasonable to believe” standard, that standard is met here.