Defendant was not under arrest, although handcuffed six feet behind his car, so a search incident was invalid under any theory. There was no PC for the automobile exception. There was no justification for a protective sweep for weapons. Opening the car door for the drug dog was an invalid search. United States v. Mitchell, 2013 U.S. Dist. LEXIS 111535 (E.D. Mich. August 8, 2013):<\/p>\n
The first circumstance that would warrant a search of the vehicle incident to an arrest of Mitchell would be if Mitchell were unsecured and within reaching distance of the passenger compartment at the time of the search. He was not. At the time of the initial searches by the officers, Mitchell was handcuffed and was standing about six to eight feet behind the rear of the vehicle.<\/p>\n
The second circumstance that would warrant a search of the vehicle incident to an arrest of Mitchell is if it was reasonable to believe the vehicle contains evidence of the offense of arrest. This too does not apply. Mitchell was not actually arrested. Moreover, the Government does not claim that the officers entered the vehicle because the officers believed it would contain evidence of the offense at issue — improperly tinted windows. And there was no testimony that would support such an assertion.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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