{"id":1193,"date":"2008-05-03T08:52:42","date_gmt":"2007-07-28T12:14:38","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-07-28T12:14:38","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1193","title":{"rendered":"AZ: Handcuffed arrestee in back seat of patrol car was beyond search incident doctrine"},"content":{"rendered":"

Arizona held July 25th in State v. Gant<\/a>, 216 Ariz. 1, 162 P.3d 640 (2007), that arresting the defendant, handcuffing him, and putting him in the back seat of a police car removed him and his vehicle from the scope of search incident under Belton<\/em>, relying on Justice Scalia’s concurrence in Thornton<\/em>. The defendant did not argue the state constitution, so this was based on the Fourth Amendment. Also, the automobile exception apparently was not implicated.<\/p>\n

P11 The sole question before the Court in Belton<\/em> was the “constitutionally permissible scope” of an otherwise lawful search of an automobile incident to arrest, given the exigencies of the arrest situation. Id.<\/em> at 455, 457; see also Thornton v. United States<\/em>, 541 U.S. 615, 619 (2004) (describing Belton as deciding “the constitutionally permissible scope of a search” incident to arrest). Noting the lack of consistency among courts in deciding how much of the automobile the police could search incident to arrest and the desirability of a bright-line rule to guide police officers in the conduct of their duties, the Supreme Court held that the area within an arrestee’s immediate control encompassed not only “the passenger compartment of an automobile” that the arrestee recently occupied, but also containers within the passenger compartment. Belton,<\/em> 453 U.S. at 458-60.<\/p>\n

P12 The State and our dissenting colleagues seek to bring Gant’s case within the Belton<\/code> rule. Unlike Belton<\/em>, however, this case deals not with the permissible scope of the search of an automobile, but with the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure. Because Belton<\/em> does not purport to address this question, we must determine whether officer safety or the preservation of evidence, the rationales that excuse the warrant requirement for searches incident to arrest, justified the warrantless search of Gant’s car. Cf. Dean<\/em>, 206 Ariz. at 166, PP 32-34, 76 P.3d at 437 (relying on Chimel<\/em> rationales in holding that arrestee was not a recent occupant of vehicle).<\/p>\n

P13 Neither rationale supports the search here. At the time of the search, Gant was handcuffed, seated in the back of a locked patrol car, and under the supervision of a police officer. The other two arrestees at the scene were also handcuffed and detained in the back of patrol cars, and the record reflects no unsecured civilians in the vicinity. At least four officers were on the scene. At that point, the police had no reason to believe that anyone at the scene could have gained access to Gant’s vehicle or that the officers’ safety was at risk. Indeed, one of the officers who searched Gant’s car acknowledged at the evidentiary hearing that the scene was secure at the time of the search. Therefore neither a concern for officer safety nor the preservation of evidence justified the warrantless search of Gant’s car. Absent either of these Chimel rationales, the search cannot be upheld as a lawful search incident to arrest.fn2<\/p>\n

fn2. We agree with Justice Scalia’s statement that applying the Belton doctrine to justify a search of the car of a person handcuffed and confined in a police car “stretches [the doctrine] beyond its breaking point.” Thornton<\/em>, 541 U.S. at 625 (Scalia, J., concurring in the judgment).<\/p><\/blockquote>\n

. . .<\/p>\n

P15 It is possible to read Belton<\/em>, as the State and the Dissent do, as holding that because the interior of a car is generally within the reach of a recent occupant, the Belton<\/em> bright-line rule eliminates the requirement that the police assess the exigencies of the situation. But, if no exigency must justify the warrantless search, it would seem to follow that a warrantless search incident to an arrest could be conducted hours after the arrest and at a time when the arrestee had already been transported to the police station. Yet the Court was careful in Belton<\/em> to distinguish United States v. Chadwick<\/em>, 433 U.S. 1, 15 (1977), overruled on other grounds by California v. Acevedo<\/em>, 500 U.S. 565 (1991), in which it had rejected an argument that a search of a footlocker more than an hour after the defendants’ arrests could be justified as incidental to the arrest. In doing so, the Court noted that the search occurred “after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency.” Belton<\/em>, 453 U.S. at 462 (quoting Chadwick<\/em>, 433 U.S. at 15). Such a distinction would be wholly unnecessary under the State’s interpretation of Belton<\/em>.\n<\/p><\/blockquote>\n

Comment:<\/em> I smell a cert. petition. Let me be blunt: Belton<\/em> was a case limited to its unique facts of four vehicle occupants standing on the side of the New York Thruway, under arrest, with one lone officer. Belton<\/em> has been bastardized by many courts way beyond its facts, and SCOTUS hasn’t helped much to clear things up. (“By your silence, then, I take it you agree with the proposition.”) Then, Thornton<\/em> was a half-assed attempt to deal with Belton<\/em> that dealt with the “recent occupant” being arrested. Then cases went all over the map as to whatever that phrase meant. Is being 50′ away a “recent occupant”? Was a guy in custody in a police car still a “recent occupant”? And, as Gant<\/em> asks, what about two hours later? Is that still “recent occupant” under Thornton<\/em> or Belton<\/em>? There is no guidance, except common sense. I urge all, no matter which side of the courtroom you sit, to read this case<\/strong> (the name is a link to the state court opinion). This case, I submit, correctly applies the search incident doctrine as Chimel<\/em>, Robinson<\/em>, et al. originally intended because it makes sense–a suspect handcuffed and away from the car is not capable of reaching in and grabbing a weapon or destroying evidence. That, and that alone, should be the relevant question under search incident. SCOTUS botched search incident in Belton<\/em> and Thornton<\/em> by not giving adequate guidance. But, watch what you ask for. Watch out for this case going up because anything in SCOTUS can change.<\/p>\n","protected":false},"excerpt":{"rendered":"

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