Vehicular Search Incident to Arrest after Gant (podcast transcript)
A Little Down But Definitely Not Out:
Vehicular Search Incident to Arrest after Gant
by Jim McAdams
Senior Instructor, Legal Division
Federal Law Enforcement Training Center
Pedrick: My name is Gabe Pedrick and I’m a Senior Instructor for the Legal Division at the Federal Law Enforcement Training Center in Brunswick, Georgia. I am joined by Jim McAdams, also a Senior Instructor in the Legal Division and author of “A Little Down But Definitely Not Out: Vehicular Search Incident to Arrest after Gant.” This piece was first published in the December 2010 edition of the Informer, Legal Division’s publication. Jim, would you please give our audience a brief summary of your background and experience.
McAdams: Yes. Thank you, Gabe. I am a graduate of the University of Miami School of Law in Coral Gables, Florida. Beginning in June 1980, I worked at the United States Attorney’s Office in Miami, Florida, as a law clerk and in January 1982 joined the office as an Assistant United States Attorney. My journeyman years were spent first in the office’s Appellate Division and later as a trial attorney first in the Major Crimes Section and second in the Money Laundering Section. In 1988, I was appointed by the U.S. Attorney as the Chief of the Narcotics Division, a position that I held until 1991. In 1992, United States Attorney General William Barr, with the approval of President George H.W. Bush, appointed me as the Acting United States Attorney for the Southern District of Florida while the White House was searching for a new political appointee to fill that position. From mid-1992 until October 1994, I was the Managing Assistant U.S. Attorney for the West Palm Beach, Florida, Branch Office. At the request of Attorney General Janet Reno, I went to Main Justice in Washington, D.C., in late 1994 where I co-chaired the Joint Intelligence Community and Law Enforcement Working Group and later served as Attorney General Reno’s Counsel for Intelligence Policy. In 1998, I returned to the Southern District of Florida and finished my career there prosecuting mainly fraud cases, retiring in January 2006. For much of the time since then, it has been my honor to serve as a Senior Instructor here at FLETC.
Pedrick: Thank you, Jim.
Any student of the law, whether attorney or law enforcement officer, and especially our students here at FLETC, cannot help but recognize the following words: 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.
McAdams: No question about that, Gabe. The Bill of Rights is the primary yardstick by which the actions of law enforcement officers in relation to members of the public will be judged. In particular, the Fourth Amendment to the U.S. Constitution that you just quoted serves as the people’s shield against all unreasonable searches and seizures by the government, but – interestingly - not against all warrantless searches and seizures.
Pedrick: When is a law enforcement officer permitted to make a warrantless search?
McAdams: The Supreme Court has identified several permissible warrantless searches: for example, hot pursuit of a fleeing felon; searches reasonably necessary to prevent the destruction or concealment of evidence; and, the search of a mobile conveyance where the officer has probable cause that evidence of a crime is located in that mobile conveyance. Another instance of a reasonable warrantless search that has been recognized by the Supreme Court is a search incident to a valid arrest, or “SIA.”
Pedrick: The concept of a warrantless search incident to arrest, or SIA, has been around quite a while, correct?
McAdams: Yes, it was defined over 40 years ago in the Supreme Court’s decision in Chimel v. California, 395 U.S. 752 (1969).
Pedrick: Yet, it would seem that the Court was still wrestling with the issue in its 2009 decision in Arizona v. Gant, reported at 129 S.Ct. 1710?
McAdams: You’re absolutely correct, Gabe. With its decision in Gant the Supreme Court attempted to impose clarity and discipline on the law pertaining to when a SIA may include a vehicle’s passenger compartment recently occupied by the arrestee. What I hope you and I will accomplish in this talk is to summarize that decision and the legal precedent upon which it was based, and provide an assessment of the Gant decision’s effect on vehicular searches incident to the arrest of a recent occupant.
Pedrick: Sounds like a plan. Where shall we start?
McAdams: As I just mentioned, the Supreme Court recognized the constitutionality of a SIA in Chimel v. California. In that case, officers with an arrest warrant for Chimel searched Chimel’s entire residence along with a garage and another outbuilding, and compelled Chimel’s wife to assist them in that search. The Court found the search to be unlawful and held that “absent some grave emergency,” the Fourth Amendment requirement of reasonableness mandates that “the police must, whenever practical, obtain advance judicial approval of searches through the warrant procedure.”
Pedrick: Did the Supreme Court approve the search of Chimel’s residence based on the lawful arrest of him?
McAdams: No. Nevertheless, the Court acknowledged the need for officer safety and the preservation of evidence. To serve those needs, the Court found that, following a lawful arrest, an officer may reasonably search the arrestee without a warrant in order to locate and remove any weapons that the arrestee could use in order to resist arrest or escape. Further, the Court held that the arresting officer may search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. In short, the Court concluded that the scope of a reasonable SIA includes the arrestee’s person and the area “within his immediate control,” but not closed or concealed areas in the room of arrest or rooms other than that in which an arrest occurs.
Pedrick: So, it sounds like the post-arrest search of Chimel’s residence exceeded that scope.
McAdams: Yes, and so the Court found.
Pedrick: But the Chimel decision did not directly address a search incident to arrest of a vehicle recently occupied by an arrestee, as was the case in Gant. What has the Court had to say about prior instances involving such warrantless post-arrest vehicle searches?
McAdams: In 1981, in the case of New York v. Belton, reported at 453 U.S. 454, the Court addressed the question of the permissible scope of a SIA when the arrestee, at the time of or immediately before arrest, was an operator or passenger in a vehicle. A police officer had lawfully stopped a car with four occupants because the driver was speeding. As he approached the vehicle after the stop, the officer smelled the odor of marijuana and saw an envelope on the floor of the car on which was printed a symbol for marijuana. He ordered the occupants out of the car, retrieved and opened the envelope, and found that it contained marijuana. Inside the pocket of the defendant's jacket, which was also in the car, the officer found cocaine.
Pedrick: Do I understand correctly that all of that was done without either an arrest or a search warrant?
McAdams: Yes, that’s correct.
Pedrick: What was the Court’s decision concerning the lawfulness of that warrantless search?
McAdams: The Court upheld the search of Belton's jacket, concluding that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”
Pedrick: What was the Court’s legal justification for that conclusion?
McAdams: Simply put, the Court found that it is reasonable to conclude that articles inside the passenger compartment of an arrestee’s automobile are within “the area into which an arrestee might reach in order to grab a weapon or [evidence].” Thus, from the standpoint of either officer safety or the preservation of evidence, the Court concluded such a search is constitutionally reasonable.
Pedrick: Okay. That isn’t much of a leap of logic when an officer arrests a person while the arrestee is seated in a car. What has the Court previously said about extending a SIA of the arrestee to a vehicle when the arrestee is no longer seated in that vehicle?
McAdams: In the later case of Thornton v. United States, reported at 541 U.S. 615, the Court was presented with a police officer who had attempted to conduct a traffic stop of Thornton. Initially, however, Thornton did not respond. After Thornton later voluntarily stopped and exited his vehicle, the officer initiated contact with him. At the time, Thornton consented to being frisked and during that frisk, the officer found illegal drugs on Thornton’s person. The officer placed Thornton under arrest, handcuffed him, and placed him in the back seat of the officer’s car. After doing so, the officer returned to Thornton’s car and searched it, finding a firearm under the driver’s seat.
Pedrick: With Thornton out of the car, it seems logical to conclude that the interior of the car no longer constituted an area into which he could reach in order to grab a weapon or evidence, the requirement set forth in Belton.
McAdams: That was Thornton’s exact argument. The Court upheld the search of the interior of Thornton’s car, however, finding that the concerns of officer safety and evidence destruction are the same regardless of whether the suspect is inside or outside of the car, if he is still in control of it.
Pedrick: That would seem to be somewhat of an open-ended concept. By that I mean control of the vehicle. Did the Thornton decision provide any guidance on the concept of “control of a vehicle” in the context of an arrest of an operator who is no longer inside the vehicle?
McAdams: Not really. The result was that over time law enforcement began to treat the SIA of a vehicle recently operated or occupied by an arrestee as almost, if not actually, part and parcel of the arrest, rather than as an add-on that needed to be independently justified by articulation of officer safety or evidence preservation concerns.
Pedrick: Thornton was decided in 2004, correct?
Pedrick: Was the Arizona v. Gant decision the next time that the Supreme Court addressed this issue?
McAdams: Yes. That was in 2009.
Pedrick: What were the facts of the Gant case?
McAdams: Shortly after arresting two individuals at a residence for providing false information and for possession of drug paraphernalia, police officers in Tucson, Arizona, recognized Rodney Gant as he arrived at that residence in his car. Aware that Gant’s driver license had been suspended, one officer approached Gant as he parked in the driveway of the residence and then got out of his car. Gant shut the car door behind him and walked towards the officer.
Pedrick: Where was the officer at this point?
McAdams: He was walking towards Gant and his car and the two met at a point about 10 to 12 feet from Gant's car. That was where the officer placed Gant under arrest for driving on a suspended license. The officer then handcuffed Gant and placed him in the backseat of a nearby police vehicle. When the officer searched Gant’s car incident to that arrest, he found a gun and a bag of cocaine in the pocket of a jacket on the backseat. Gant was later indicted for possession of drugs and drug paraphernalia.
Pedrick: The search of Gant’s car would seem to be justified under the Thorton decision. Did Gant challenge the search of his car?
McAdams: Yes. But he argued that the warrantless search of his vehicle was not justified under Belton because (1) he posed no threat to the officers after he was handcuffed and in the patrol car and (2) because he was arrested for a traffic offense for which no evidence could be found in his vehicle. The Arizona Supreme Court agreed and held that a warrantless search of a vehicle after its owner is arrested, handcuffed and secured in the back of a police car and the scene is otherwise secure, is unconstitutional.
Pedrick: What did the U.S. Supreme Court say?
McAdams: That Court ultimately agreed with the Arizona Supreme Court. By a five to four decision, the Court found that vehicle SIAs after the arrest of a recent occupant of that vehicle must be based on “the safety and evidentiary justifications underlying Chimel's reaching distance rule.” The Court majority wrote that earlier readings of its decision in Belton were “unnecessarily broad, resulting in the conclusion that the search of a vehicle incident to arrest was a police entitlement rather than as a narrow exception to the warrant requirement applicable only when the facts actually demonstrate officer safety or evidence destruction issues as contemplated in Chimel."
Pedrick: So, how did the Court finally rule on the facts of Gant? Was there sufficient concern by the Tucson police about officer safety and/or evidence preservation?
McAdams: Well, first, the Court concluded that a SIA of Gant’s car would be permissible only if (1) Gant retained actual access to the interior of his vehicle, or (2) the arresting officer has “reason to believe” that evidence of the crime for which he made the arrest of Gant existed in Gant’s car.
Pedrick: Reason to believe or reasonable suspicion?
McAdams: The Gant Court used the term” reason to believe,” but it has not yet defined that term as used in its decision in Gant. Some lower courts have equated the “reasonable to believe” standard with probable cause, while others have found that Gant’s reasonable belief standard is less than probable cause.
Pedrick: So, where does that leave federal LEOs on the issue?
McAdams: Federal law enforcement officers should consult with an Assistant U.S. Attorney on the application of the “reason to believe” standard in the districts and circuits where they work. My best guess as to the meaning of “reason to believe” is that it is likely the equivalent of “reasonable suspicion” but that remains to be seen. A clear implication from the holding in Gant, however, is that the teachings of Chimel remain good law. That is, following a valid arrest, the arresting officer may conduct a warrantless search of the space within an arrestee’s “immediate control” and “the area from which he might gain possession of a weapon or destructible evidence.” The Court in Gant made abundantly clear that the vehicle search in that case failed to meet that standard because it happened after Gant was handcuffed and secured in the back of a patrol car. Accordingly, law enforcement’s longstanding presumption of “immediate control” of the interior of a vehicle merely because of proximity to the arrestee is no more.
Pedrick: Did Gant in effect overrule Thornton?
McAdams: No. In fact, the Court in Gant expressly rejected any notion that it was overruling Thornton. I therefore conclude that the actual change effected by Gant to law enforcement officer’s post-arrest search authority may be viewed as very narrow. Thus, if an arresting officer finds evidence of a crime on the person of an arrestee who recently occupied a vehicle, the SIA may reasonably be extended to the passenger compartment of that vehicle. It should also follow that if an arresting officer has no vehicle for securing an arrestee in a case involving drugs or another serious felony, the officer may reasonably conclude that, even if the defendant is handcuffed, his vehicle remains within his immediate control and a place where he could gain possession of a weapon or destructible evidence. Similarly, if the officer is alone but dealing with multiple arrestees who recently occupied a vehicle, it may be reasonably argued that the officer may conduct a quick search of the vehicle for weapons and destructible evidence to ensure his safety before moving the arrestees away from the vehicle.
Pedrick: If I understand your earlier comments, however, it does seem that, after Gant, absent some similar basis for finding the potential for access to the vehicle, officer safety will not justify a SIA of the vehicle. In that case, the officer wishing to make a lawful search of the vehicle’s interior must be prepared to articulate an objective reason to believe that the car is a repository of evidence of the crime that is the basis of the arrest.
McAdams: Yes. That is correct.
Pedrick: Any final comments, Jim?
McAdams: I will close by suggesting that Gant need not be viewed as a significant impediment to effective post-arrest searches of vehicles. If an arresting officer is able to articulate reasonable facts that demonstrate a realistic likelihood that either the arrestee, or another acting to assist the arrestee, retains access to a vehicle or a weapon or destructible evidence in that vehicle, a SIA of that vehicle would pass the test of Gant. If the officer is able to articulate a reason to believe that the vehicle contains evidence of the crime for which he has just made an arrest, Gant would allow an ensuing search of the passenger compartment of the vehicle. Absent such articulable facts, the likelihood that a SIA of the vehicle would be lawful is small.
Pedrick: Thank you. That concludes this presentation.