KY: A handcuffed defendant in a police car defeats a search incident; following Gant and overruling prior cases

Prior cases in conflict with Gant are overruled. Defendant was handcuffed in the back of a police car, so it was not possible for him to gain access to the car he was taken from. The search incident was invalid. Rose v. Commonwealth, 322 S.W.3d 76 (Ky. 2010) (revg Commonwealth v. Rose, 2007 Ky. App. LEXIS 6 (Ky. Ct. App., Jan. 12, 2007), which court notes was decided before Gant):

In this case, at the time of the search, Appellant was secured in the back of Hardy’s cruiser. As a result, there was no possibility Appellant could have gained access to the vehicle to destroy evidence or to access a weapon. Therefore, in light of the Supreme Court’s ruling in Gant, we hold the search unconstitutional. To the extent that our decisions in Rainey, Henry, Penman, or any other cases promulgated by this Court conflict with Gant, they are expressly overruled.

With regard to Gant‘s alternative rule–that an officer may search a vehicle even when the arrestee is secured if he has a reasonable suspicion that the vehicle harbors evidence of the crime of arrest–we are satisfied that Hardy did not possess the requisite reasonable suspicion. As the record reveals, Hardy directly testified that he was not searching the vehicle in an attempt to locate evidence relating to the two warrants. Thus, we cannot conclude that the search satisfies constitutional muster under Gant‘s alternative analysis. Therefore, we hold that the search in this case was unconstitutional and the evidence procured the fruit of a poisonous tree.