Cal.2d: Explaining the two “prongs” of Gant, and obstruction not an offense justifying search incident

Obstruction by not getting out of the car, such as resisting arrest, was not an offense from which one would expect to find evidence in the defendant’s car, and it did not justify a search incident under Gant. Defendant was “tased” and held on the ground handcuffed when the search incident occurred. Explaining the two “prongs” of Gant is People v. Evans, 200 Cal. App. 4th 735, 133 Cal. Rptr. 3d 323 (2d Dist. 2011):

The court adopted a “new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains ‘evidence relevant to the crime of arrest.’ [Citation.]” (Davis, supra, 131 S.Ct. at p. 2425; Gant, supra, 129 S.Ct. at p. 1719.) Gant noted that the second prong of the test flowed not from Chimel, but from Justice Scalia‘s concurrence in Thornton v. United States (2004) 541 U.S. 615, 632, and was justified by “circumstances unique to the vehicle context.” (Gant, supra, at pp. 1714, 1719; see also People v. Osborne, supra, 175 Cal.App.4th at p. 1064.) Where neither justification is present, “a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” (Gant, supra, at pp. 1723-1724.)

Here, the searches did not fall within the first prong of the Gant test. When the initial search of the vehicle was completed, Evans had been tased and detained, and was lying face down on the ground outside the vehicle, with officers on top of him. Plainly, he did not have access to the car’s interior. The second search was conducted at the impound yard, while Gant was presumably in the hospital, or at least nowhere near the vehicle.

Nor was it reasonable for officers to believe evidence relevant to Evans‘s crime of arrest––interfering with a police investigation in violation of Penal Code section 148––might be found in his automobile. In Gant, the defendant was arrested for driving with a suspended license. (Gant, supra, 129 S.Ct. at p. 1714.) The high court found it unreasonable to believe that evidence of this crime might be found in his car. (Id. at p. 1719.) The court explained: “In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.” (Ibid.) By way of example, the court cited Atwater v. Lago Vista (2001) 532 U.S. 318, in which the petitioner was arrested for a misdemeanor seatbelt violation, and Knowles v. Iowa (1998) 525 U.S. 113, in which the petitioner was stopped for speeding. (Gant, supra, at p. 1719.) …

Accordingly, we agree with Chamberlain that while the “nature of the offense of arrest is clearly intended to have significance, and in some cases it may virtually preclude the existence of real or documentary evidence, … a broad rule automatically authorizing searches incident to arrest for all other offenses cannot be reconciled with the actual holding of Gant. … Some reasonable expectation beyond a mere possibility, whether arising solely from the nature of the crime or from the particular circumstances surrounding the arrest, is therefore clearly contemplated by the Court.” (Chamberlain, supra, 229 P.3d at p. 1057.) We conclude a reasonable belief to search for evidence of the offense of arrest exists when the nature of the offense, considered in conjunction with the particular facts of the case, gives rise to a degree of suspicion commensurate with that sufficient for limited intrusions such as investigatory stops. (Ibid.) Reasonable suspicion, not probable cause, is required. (Chamberlain, at p. 1057; U.S. v. Vinton, supra, 594 F.3d at p. 25; …) As a practical matter, for crimes such as driving under the influence, absent unusual circumstances the requisite reasonable belief may be readily inferable from the nature of the offense, with little or nothing more. In most cases, however, the facts known to the officer, considered with the nature of the offense, will be determinative.

Here, neither the nature of the offense nor any facts specific to the crime would have provided the officers with a reasonable belief that evidence related to the offense of arrest would be found in Evans‘s automobile. Evans’s offense of arrest was interfering with a police investigation in violation of Penal Code section 148, due to his refusal to exit the car. In pertinent part, Penal Code section 148, subdivision (a)(1) prohibits willfully resisting, delaying, or obstructing a peace officer in the discharge of his or her duties. … The officers could not have reasonably believed evidence of obstructing a peace officer could be found inside defendant’s vehicle. (Id. at p. 558; see also U.S. v. Chavez (E.D.Cal. 2009) 2009 U.S. Dist. Lexis 116924 [resisting arrest is akin to a traffic-related offense, and an officer could not reasonably expect to find evidence of the crime inside a car].) The same is true here. Impeding an officer’s investigation is unlikely to leave evidentiary traces, such as the fruits or instrumentalities of the crime, in a vehicle. The only conduct underlying the offense was Evans’s refusal to exit the car when Currie ordered him to do so. It is unreasonable to believe evidence of that conduct would remain in the vehicle after Evans was no longer inside.