KS: Stop for obstruction did not support SI; also, defendant was handcuffed and in police car

Defendant arrested for obstruction did not mean there would be evidence in the car for search incident purposes. Moreover, she was handcuffed and in the back of a police car at the time. State v. Oram, 46 Kan. App. 2d 899, 266 P.3d 1227 (2011):

Our Supreme Court noted that under Gant, “[t]o have a valid search incident to arrest, when there is no purpose to protect law enforcement present, the search must seek evidence to support the crime of arrest, not some other crime, be it actual, suspected, or imagined.” Henning, 289 Kan. at 147. Our Supreme Court further stated that “[i]n the vehicle context, ‘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 … evidence [relevant to the crime of arrest.].’” 289 Kan. at 147 (quoting Gant, 556 U.S. at ___ [129 S. Ct. at 1719]).

Although our Supreme Court has struck down K.S.A. 22-2501(c) as facially unconstitutional, we point out that under Gant, there was no reasonable basis for the deputy to believe that the car contained evidence of Oram’s crime of arrest (for obstruction). As a result, the search was an unreasonable search incident to arrest under Gant and Henning. Clearly, the trial court would have been correct, under these circumstances, to hold that the search violated Gant.