Search Incident to Arrest – Arizona v. Gant

After many years of expanding the scope of the search incident to arrest doctrine, the United States Supreme Court took a step back in Arizona v. Gant, 556 U.S. 332 (2009).

Acting on an anonymous tip that a residence in Tucson was being used to sell drugs, two Tucson police officers knocked on the front door of the residence and asked to speak to the owner. Rodney J. Gant answered the door and, after identifying himself, stated that he expected the owner to return later. The officers left the residence and conducted a records check, which revealed that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license. Later that evening, the officers returned to the residence and found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. The man and woman were handcuffed and secured in separate patrol cars when a vehicle pulled up to the residence. The officers recognized Gant as the driver of this vehicle. Gant got out of his vehicle and walked away from the vehicle. When he was about 10 feet from his vehicle, he was met by one of the police officers who immediately arrested and handcuffed him. Because the other arrestees were secured in the only patrol cars at the scene, one of the officers called for backup. When two more officers arrived, Gant was locked in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of the other patrol car, two officers searched his car. One officer found a gun and the other discovered a baggie containing cocaine in the pocket of a jacket on the backseat. Gant was charged with possession of a narcotic drug for sale and possession of drug paraphernalia.

Gant moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. Gant argued that New York v. Belton, 453 U.S. 454 (1981), did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. The trial court denied the motion to suppress on the grounds that the search was incident to a lawful arrest. Gant proceed to trial where he was convicted and sentenced to a three year term in prison.

In reversing Gant’s conviction, the Arizona Supreme Court concluded that the search of Gant’s car was unreasonable within the meaning of the Fourth Amendment. The court’s opinion discussed at length the United States Supreme Court decision in Belton, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant. 162 P. 3d 640, 642–643 (2007) (citing 453 U. S., at 460). The Arizona Supreme Court distinguished Belton as a case concerning the permissible scope of a vehicle search incident to arrest and concluded that it did not answer “the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.” 162 P. 3d, at 643. Relying on the United States Supreme Court decision in Chimel v. California, 395 U.S. 752 (1969), the Arizona Supreme Court observed that the search incident to arrest exception to the warrant requirement is justified by interests in officer safety and evidence preservation. 162 P. 3d, at 643. When “the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer,” the court concluded, a “warrantless search of the arrestee’s car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.” 162 P. 3d, at 644. Accordingly, the Arizona Supreme Court held that the search of Gant’s car was unreasonable.

In a five to four decision, the United States Supreme Court agreed with the rationale of the Arizona Supreme Court and held that “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed.” Gant at ____.

In a rather odd alliance, voting for the defense’s postion were Justices Stevens, Scalia, Souter, Thomas and Ginsburg – voting for the State of Arizona’s position were Justices Roberts, Kennedy, Breyer and Alito.

Justice Scalia wrote a concurring opinion, stating that “we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto ‘reasonable’ only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred.” Gant at ____.

Search Incident to Arrest – Thornton v. United States

In Thornton v. United States, 541 U.S. 615 (2004), the United States Supreme Court again expanded the authority of law enforcement officers to conduct searches incident to a lawful arrest. In Thornton the Court extended the ruling of New York v. Belton, 453 U.S. 454 (1981), to include “recent occupants” of vehicles.

Marcus Thornton was stopped by a police officer who had noticed that the license plate on Thornton’s Lincoln Town Car belonged to a Chevy two-door car. Thornton had parked his car and had walked away from the car before he was stopped by the officer. During his conversation with Thornton, the officer asked if he could search Thornton. Thornton consented, and during the search, the officer found two baggies containing illegal drugs. The officer arrested Thornton and then searched his vehicle. During the course of the search, the officer found a gun inside the vehicle. Thornton was subsequently charged and convicted of federal drug and firearms offenses.

The Court held that Belton governs even when an officer does not make contact until after the person arrested has left the vehicle. The Court ruled that Belton allows police to search a car’s passenger compartment incident to a lawful arrest of both “occupants” and “recent occupants.”

Search Incident to Arrest – New York v. Belton

In 1981, the United States Supreme Court further expanded the authority of law enforcement officers to conduct searches incident to a lawful arrest. In the case before the Court, A New York state police officer pulled over a vehicle traveling at an excessive rate of speed. The vehicle had four occupants, including Roger Belton. During the course of the traffic stop, the police officer smelled burnt marijuana and saw an envelope marked “Supergold” on the floor of the vehicle that he associated with marihuana. He ordered the men out of the vehicle and placed them under arrest for possession of marijuana. He split them up and then picked up the envelope and found that it contained marihuana. He then gave each occupant of the vehicle a Miranda warning and searched each of them. He then searched the passenger compartment of the vehicle and found Belton’s leather jacket. He found cocaine in one of the pockets of the jacket. Belton was subsequently charged with the offense of possession of a controlled substance.

The Supreme Court held that the search of Belton’s jacket was a search incident to a lawful custodial arrest, and hence did not violate the Fourth and Fourteenth Amendments. The jacket, being located inside the passenger compartment of the car, was “within the arrestee’s immediate control” within the meaning of Chimel v. California, 395 U. S. 752, wherein it was held that a lawful custodial arrest creates a situation justifying the contemporaneous warrantless search of the arrestee and of the immediately surrounding area. Not only may the police search the passenger compartment of the car in such circumstances, they may also examine the contents of any containers found in the passenger compartment. And such a container may be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. New York v. Belton, 453 U.S. 454 (1981).

Search Incident to Arrest – United States v. Robinson

In 1973, the United States Supreme Court expanded the authority of law enforcement officers to conduct searches incident to a lawful arrest. In the case before the Court, Willie Robinson was arrested for the crime of operating a motor vehicle with a revoked license. Incident to the arrest, the arresting officer searched Robinson for weapons and found a crumpled cigarette package in Robinson’s clothing. The officer opened the cigarette package and found heroin. The Supreme Court upheld the search and ruled that law enforcement officers may open and search through all items found on the arrestee’s person even if they are in a closed container and and even if the arresting officer has no suspicion that the contents of the container are illegal. United States v. Robinson, 414 U.S. 218 (1973).

Search Incident to Arrest – Chimel v. California

In 1969, the United States Supreme Court held that, contemporaneous with a lawful arrest, law enforcement officers can search the arrestee for weapons that could be used against the officers and to prevent the arrestee from concealing or destroying evidence. The Court limited the scope of the search to the arrestee’s person and the area within his immediate control. Chimel v. California, 395 U.S. 752 (1969).

In Chimel, the police came to Chimel’s home with an arrest warrant for an alleged burglary. They asked Chimel for permission to search his home. When Chimel refused to consent to the search, the police proceeded nonetheless to search his entire home, including the attic and garage. They also made his wife remove contents of various dresser drawers. During the course of the search, the police found and seized coins and medals which were later used to convict Chimel of burglary.

The issue in Chimel was whether a warrantless search of the area beyond the defendant’s immediate control is constitutional where the defendant is lawfully arrested inside his home. The Supreme Court answered no, and suppressed the evidence against Chimel.

Probable Cause – Traffic Stops…

The following is a general discussion of federal case law on probable cause and traffic stops.

A traffic stop is a “seizure” within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention is quite brief. Delaware v. Prouse, 440 U.S. 648, 653 (1979). See also United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc); Francis v. Smith, 922 S.W.2d 176, 178 (Tex.Crim.App. 1996).

Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968). Because a routine traffic stop is more analogous to an investigative detention than a custodial arrest, traffic stops are analyzed as Terry stops. Berkemer v. McCarty, 468 U.S. 420, 439 (1984); United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).

Both the driver and any passengers are considered seized within the meaning of the Fourth Amendment and may challenge the legality of the stop and the length and scope of their detention. Brendlin v. California, 551 U.S. 249 (2007).

Under Terry, the court must determine the reasonableness of the search or seizure by asking (1) whether the officer’s action was justified at its inception; and (2) whether the officer’s action was reasonably related in scope to the circumstances which justified the interference in the first place. Terry at 392 U.S. 19. In the context of a traffic stop, obtaining identification, registration, and insurance papers, running warrant checks, and asking questions of the driver regarding his travel itinerary are all reasonably related to the reason for the stop. United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993).

“Once the purpose of a valid traffic stop has been completed and an officer’s initial suspicions have been verified or dispelled, the detention must end unless there is additional reasonable suspicion supported by articulable facts.” United States v. Gonzales, 328 F.3d 755, 758 (5th Cir. 2003) (citing United States v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir.2001); Shabazz, 993 F.2d at 436). However, “a traffic detention may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer’s professional judgment, that emerges during the stop.” United States v. Brigham, 382 F.3d 500, 512 (5th Cir. 2004) (en banc).

Haas v. Texas

Haas v. Texas, 172 S.W. 3d 42 (Tex.App. – Waco 2005 pet. ref’d.) is a great case to read to better understand search and seizure law that is applicable in my illegal drug and money laundering cases. It is a case that stems from a traffic stop (speeding and following too closely) on Interstate 10 near Vidor, Texas. Vidor is in southeast Texas just east of Beaumont. The facts are strikingly similar to what I routinely see in my practice. To read the Court’s opinion, click here.

Here are a few of the rules of law set out in Haas:

  • To suppress evidence on an alleged violation of Fourth Amendment rights, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct, and defendant satisfies this burden by establishing that a search or seizure occurs without a warrant, and once the defendant makes this showing, the burden shifts to the State, which must then establish that the search or seizure was conducted with a warrant or was reasonable.
  • A law enforcement officer may lawfully stop a motorist who commits a traffic violation.
  • In general, the decision to stop an automobile is reasonable when an officer has probable cause to believe that a traffic violation has occurred.
  • A traffic stop is a “seizure” within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention is quite brief.
  • Officers may stop and briefly detain persons (Terry stops) suspected of criminal activity on less information than is constitutionally required for probable cause to arrest.
  • Because a routine traffic stop is more analogous to an investigative detention than a custodial arrest, such stops are analyzed as Terry stops.
  • An investigative detention, either as a part of, or apart from, a traffic stop, is a “seizure” for Fourth Amendment purposes.
  • A traffic stop and any concomitant investigative detention must be reasonable under the Federal and State Constitutions.
  • The Fourth Amendment protects against only unreasonable searches and seizures.
  • During a routine traffic stop, an officer may detain an individual to check for outstanding warrants, and officer may also request a driver’s license, liability insurance information, vehicle ownership information, the driver’s destination and the purpose of the trip.
  • While an officer is awaiting a computer warrant check, questioning about matters unrelated to the initial traffic stop does not violate the Fourth Amendment because such questioning does not extend the duration of an initial valid seizure; however, in some circumstances, extensive questioning about unrelated matters may exceed the scope of the initial stop.
  • Under Terry, a temporary investigative detention – a Fourth Amendment seizure – is reasonable, and therefore constitutional, if: (1) the officer’s action was justified at the detention’s inception; and (2) the detention was reasonably related in scope to the circumstances that justified the interference in the first place.
  • For the officer’s initial action to be justified at inception of the investigative detention, courts ask whether there existed specific, articulable facts that, taken together with rational inferences from those facts, reasonably warranted that intrusion; specifically, the officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity and some indication that the unusual activity is related to crime.
  • When determining if officer had reasonable suspicion of criminal activity so as to justify investigative detention, courts give due weight, not to the officer’s inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience.
  • An investigative detention that is not based on reasonable suspicion is unreasonable and thus violates the Fourth Amendment.
  • A seizure that is reasonable at its inception may violate the Fourth Amendment by virtue of its excessive intensity and scope.
  • An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.
  • Once the reason for the traffic stop has been satisfied, the stop may not be used as a fishing expedition for unrelated criminal activity.
  • An investigative detention following a traffic stop may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer’s professional judgment, that emerges during the stop.
  • On appeal, appellate courts review the reasonableness of the investigative detention from the same perspective as the officer: using an objective standard, appellate courts ask whether the facts available at the moment of detention would warrant a person of reasonable caution in the belief that the action taken was appropriate, and the determination of reasonable suspicion is made by considering the totality of the circumstances.
  • Once the traffic stop investigation is concluded, the officer must no longer detain the driver, who must be permitted to leave.
  • An officer may request consent to search a vehicle after the purpose of the traffic stop has been accomplished, as long as the request is reasonable under the circumstances and the officer has not conveyed a message that compliance with the officer’s request is required; however, if consent is refused, the officer must have reasonable suspicion to continue to detain the person stopped.
  • If, during a valid traffic stop and detention, the officer develops reasonable suspicion that the detainee is engaged in criminal activity, prolonged or continued detention is justified.
  • Additional facts and information discovered by an officer during a lawful detention may form the basis for a reasonable suspicion that another offense has been or is being committed, and articulable facts coming to the officer’s knowledge during the proper stop or detention may justify further investigation.
  • If the valid traffic stop evolves into an investigative detention of other criminal activity, such as transporting illegal drugs, so that a canine sniff can take place, reasonable suspicion is required to prolong the detention.
  • Once officer’s drug-sniffing dog alerted on defendant’s car following traffic stop, officer had probable cause to search the car without a warrant.

Again, to read the Court’s opinion, click here.

Terry v. Ohio

In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court ruled that the Fourth Amendment to the United States Constitution permits a law enforcement officer to stop, detain and frisk persons who are suspected of criminal activity without first obtaining their consent even though the officer may lack a warrant to conduct a search or probable cause to make an arrest. Now known as a Terry Stop, this type of police encounter is constitutionally permissible only when an officer can articulate a particularized, objective and reasonable basis for believing that criminal activity may be afoot or that a given suspect may be armed and dangerous.

The Court said that no police officer may lawfully stop and detain a person for questioning unless the officer first observes unusual conduct that arouses a reasonable suspicion of criminal activity. A stop may be no longer than necessary to confirm or dispel an officer’s suspicion and must not be unnecessarily restrictive or intrusive. During the period of detention, no searches may be performed unless the officer has an objective and particularized basis for believing the suspect is armed and dangerous. Any search must be limited to the suspect’s outer clothing and may be performed only for the purpose of discovering concealed weapons. Evidence obtained during searches that comport with these restrictions is admissible under the Fourth Amendment. Evidence obtained in violation of the limitations set forth in Terry may be suppressed under the exclusionary rule.

The Exclusionary Rule

The exclusionary rule is based on federal constitutional law. It excludes evidence obtained in violation of a criminal defendant’s Fourth Amendment right against unreasonable searches and seizures by law enforcement officers. If the search of a criminal suspect is unreasonable, the evidence obtained in the search will be excluded from trial.

Before the exclusionary rule was fashioned, evidence was admissible in a criminal trial if the judge found the evidence was relevant. The manner in which the evidence had been seized was not an issue. This began to change in 1914 when the United States Supreme Court devised a way to enforce the Fourth Amendment in recognition of police misconduct. In Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), a federal agent had conducted a warrantless search for evidence of gambling at the home of Fremont Weeks. The evidence seized in the search was used at trial and Mr. Weeks was convicted. On appeal, the United States Supreme Court held that the Fourth Amendment barred the use of evidence secured through a warrantless search. Mr. Weeks’s conviction was reversed and thus was born the exclusionary rule.

The exclusionary rule established in Weeks was constitutionally required only in federal court until Mapp vs. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). In Mapp, Cleveland police officers had gone to the home of Dollree Mapp to ask her questions regarding a recent bombing. The officers demanded entrance into her home. Ms. Mapp called her attorney and then refused to allow the officers in without a warrant. The officers became rough with her, handcuffed her and searched her home. They found allegedly obscene books, pictures and photographs. Ms. Mapp was charged with violations of obscenity laws, prosecuted and convicted. Her conviction was affirmed by the Ohio Supreme Court but overturned by the United States Supreme Court.

In Mapp, the Court held that the exclusionary rule applied to state criminal proceedings through the Due Process Clause of the Fourteenth Amendment. Before Mapp, not all states excluded evidence obtained in violation of the Fourth Amendment. Since Mapp, a defendant’s claim of unreasonable search and seizure has become a matter of course in most criminal prosecutions.

A criminal defendant’s claim of unreasonable search and seizure is usually heard in a suppression hearing before the presiding judge. This hearing is conducted before trial to determine what evidence will be suppressed or excluded from trial.

A Search And Seizure Must Be Reasonable…

The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

— US Const., amend. 4 (1791)

Article 1, § 9 of the Texas Constitution states:

The people shall be secure in their persons, houses, papers, and possessions, from all unreasonable searches or seizures, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

— Tex. Const., art. 1, § 9

The purpose of the Fourth Amendment and Article 1, § 9 is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. However, not all searches and seizures are prohibited, only those that are unreasonable. The reasonableness of a search or seizure is determined by a review of the totality of the circumstances of each particular case and by balancing the the public interest served against an individual’s right to be free from arbitrary intrusions at the discretion of law enforcement officers.

The Fourth Amendment requirement of reasonableness consists of three parts: (1) the search or seizure must be justified by probable cause; (2) the search or seizure must be conducted pursuant to a warrant or to a recognized exception to the warrant requirement; and (3) the manner of conducting the search or seizure must be reasonable.