NC: Search incident after arrest for possession of a weapon after stop for being involved in a drive by was valid

The search incident of defendant’s car under Gant was permissible after he was stopped on a 911 call that he was seen and shot up the caller’s house the night before. When they got him out of the car, he admitting having a gun on him, which officers took. That supported a search incident of the car for evidence of the shooting incident. Defendant was otherwise locked in the police car, but that is not determinative where there is reasonable suspicion evidence of the crime could be in the car. State v. Mbacke, 365 N.C. 403, 721 S.E.2d 218 (2012), revg 703 S.E.2d 823 (N.C. App. 2011):

Instead, we conclude that the “reasonable to believe” standard set out in Gant parallels the objective “reasonable suspicion” standard sufficient to justify a Terry stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). Although the rationales for the two standards differ somewhat, in that Gant addresses officer safety and evidence preservation, Gant, 556 U.S. at __, __, 129 S. Ct. at 1715-16, 1719, 173 L. Ed. 2d at 492-93, 496-97, while Terry addresses “effective crime prevention and detection” along with officer and public safety, Terry, 392 U.S. at 22-24, 88 S. Ct. at 1880-81, 20 L. Ed. 2d at 906-08, we believe the underlying concept of a reasonable articulable suspicion discussed in Terry, id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906, is readily adaptable to a scenario in which a search of a vehicle is contemplated after the occupants have been arrested and detained. See also United States v. Place, 462 U.S. 696, 702, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110, 117-18 (1983) (explicitly adopting the “reasonable, articulable suspicion” standard implied in Terry). In addition, law enforcement officers and courts have worked with the Terry standard for decades, making application of Gant’s similar objective standard a straightforward matter. Accordingly, we hold that when investigators have a reasonable and articulable basis to believe that evidence of the offense of arrest might be found in a suspect’s vehicle after the occupants have been removed and secured, the investigators are permitted to conduct a search of that vehicle.

Here, defendant was arrested for the offense of carrying a concealed gun. The arrest was based upon defendant’s disclosure that the weapon was under his shirt. Other circumstances detailed above, such as the report of defendant’s actions the night before and defendant’s furtive behavior when confronted by officers, support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant’s vehicle. Accordingly, the search was permissible under Gant, and the trial court properly denied defendant’s motion for appropriate relief.