{"id":439,"date":"2007-06-25T07:38:35","date_gmt":"2006-09-22T07:27:53","guid":{"rendered":""},"modified":"2017-09-17T13:41:47","modified_gmt":"2017-09-17T18:41:47","slug":"en-us-120","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=439","title":{"rendered":"AZ: When an arrestee is handcuffed and in custody, search incident no longer valid"},"content":{"rendered":"

Analyzing the search incident doctrine from Chimel<\/em> to Belton<\/em> and through Thornton<\/em>, the Arizona Court of Appeals concludes that a defendant handcuffed and in a police car is incapable of reaching his car, so a search incident is no longer possible. Chimel<\/em> is still good law. State v. Gant, 213 Ariz. 446, 487 Ariz. Adv. Rep. 3, 143 P.3d 379 (2006):<\/p>\n

P20 The dissenting opinion expresses concern that today’s decision will encourage officers motivated to conduct investigations of suspects’ vehicles to intentionally conduct searches of those vehicles before the arrestees are safely secured. But this reasoning erroneously “assumes that, one way or another, the search must take place.” [Thornton<\/em>] at 627, 124 S. Ct. at 2134 (Scalia, J., concurring). As Justice Scalia stated in Thornton,<\/em> “conducting a Chimel search is not the Government’s right; it is an exception–justified by necessity–to a rule that would otherwise render the search unlawful.” Id.<\/em> And nothing about our opinion today would prevent officers from taking whatever steps they believe necessary to protect their safety. See id.<\/em> at 627, 124 S. Ct. at 2134-35 (Scalia, J., concurring) (“If ‘sensible police procedures’ require that suspects be handcuffed and put in squad cars, then police should handcuff suspects, put them in squad cars, and not conduct the search.”). We simply hold that a search of an arrestee’s vehicle is not one of those steps once the arrestee poses no further risk of gaining access to it.<\/p>\n

P21 Our supreme court has instructed us to consider the rationales behind the search incident to arrest exception to the warrant requirement when examining the searches of a vehicle incident to arrest. Dean,<\/em> 206 Ariz. 158, PP32-34, 76 P.3d at 437. We have done so and find they were not satisfied when Gant’s vehicle was searched. Accordingly, we reverse the trial court’s ruling and hold that the evidence seized should be suppressed.<\/p><\/blockquote>\n

Comment:<\/em> This was GVRed by SCOTUS in light of Dean<\/em> (Arizona v. Gant,<\/em> 540 U.S. 963 (2003)), which, on the surface made no sense to me. On remand, the Arizona court just could not fathom any rationale for search incident that permitted one when the defendant is locked in the back of a police car. Finally, a court that does not believe in the fiction of search incident occurring anytime and any place. The court cites SCOTUS cases to support its conclusion, including Thornton<\/em> and reminds us that Belton<\/em> is limited by its facts: four suspects and one officer alone on the highway.<\/p>\n

After placing defendant in backseat of his partrol car, officer was still able to search the car because he could see marijuana flakes in plain view on the seat of the car. State v. Pruitt, 2006 Tenn. Crim. App. LEXIS 713 (September 8, 2006).*<\/p>\n

Defendant permitted the police to enter the bus he lived in to search for a possible shooting victim. United States v. Coughlin, 202 Fed. Appx. 194 (9th Cir. September 14, 2006)* (unpublished).<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-439","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/439","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=439"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/439\/revisions"}],"predecessor-version":[{"id":29077,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/439\/revisions\/29077"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=439"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=439"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=439"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}