“FROM THE CLASSROOM”
Ray Hill, Professor Emeritus, Santa Rosa Junior College
In the Spring of 2009, I was teaching the L.D. #16 - Search & Seizure block in the Basic Academy. The topic was “Searches Incident to Arrest in a Vehicle” under the long-standing Belton Rule (New York v. Belton (1981) 453 US 454). This was a simple rule (now history) – If you arrested someone (no matter for what crime) from the passenger area of a vehicle, you were to search the passenger area (bright line) for any possible weapons, contraband or evidence. This past precedent was based upon officer safety and the theory that suspects in anticipation of arrest will dispossess of illegal goods and stash them in the passenger area.
During the following week, Gant v. Arizona (2009) 556 U.S. 332) was decided by the U.S. Supreme Court (5-4 decision). I had to go back to my students and say forget what I taught you last week, here is the new rule (thus the value of ongoing legal update).
The Gant court did away with the bright line rule and substituted for passenger area search that there must be reasonable suspicion to believe evidence associated with the arrest will be found in the passenger area. Reasonable suspicion is a standard that I normally teach when conducting a detention, frisk, or acting on an exigency. This is as opposed to probable cause which is the standard for making an arrest, conducting an Auto Exception search, or seeking a search warrant.
Appellate courts have tried to give us some help in defining these terms.
“Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible”. “The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians act” (Ornelas v. United States (1996) 517 U.S. 690).
“Reasonable suspicion is a less demanding standard than probable cause”. “Because it is less a demanding standard, reasonable suspicion can be established with information that is different in quantity and content than that required to establish probable cause” (Alabama v. White (1990) 496 U.S. 325).
“The lesser burden of persuasion warrants a lesser burden of production” (Humphrey v. Appellate Court (2002) 29 Cal. 4th 569).
“There are two core principles: 1) The amount of probability; 2) The importance of common sense” (“The Principle of Probable Cause”, Point of View, Alameda County District Attorneys Office, Mark Hutchins, Editor Spring 2001.
So let’s look at some post-Gant cases where appellate courts ruled the reasonable suspicion requirement was met:
A Norfolk, Virginia officer investigated a vehicle because the license plates didn’t match the vehicle model (Lincoln town car plate on a Chevrolet 2-door). Defendant consented to a search. The officer retrieved three bags of marijuana and a large amount of rock cocaine. Defendant was arrested and placed in the patrol unit. A further search of the passenger area located a 9 mm pistol under the driver’s seat. The search was lawful because the officer reasonably believed there could be more illegal drugs related to the arrest in the passenger area (Thornton v. U.S (2004) 541 US 615).
Defendant was stopped for speeding. The officer smelled the fresh odor of beer emitting from the vehicle interior. A search of the passenger compartment for open alcohol containers was conducted. An open beer can, several knives, and a billy club were found. In pockets sewn into a seat cover, a gun magazine was found. A loaded .380 auto was found in a duffel bag and cocaine and methamphetamine packaged for sale inside a toiletry bag. The fresh odor of beer justified a probable cause search for open containers. Once the knives were located, a protective frisk for more weapons was justified. Once the officer found the billy club, the entire passenger area could be searched as incident to arrest for more weapons. This resulted in the legal discovery of the additional contraband (Peo. v. Molina (1994) 25 Cal. App. 4th 1041).
Antioch Police officers detained the defendant for auto burglary. A frisk located a loaded 9mm in his pocket. A search of the passenger compartment of his car revealed drugs inside a backpack. Although defendant was outside the car and handcuffed, it was “reasonable to believe evidence relevant to arrest might be found in the vehicle” (additional firearms, ammunition) (Peo. v. Osborne (2009) 175 Cal. App. 4th 1052).
A Santa Cruz County deputy stopped the defendant’s vehicle for speeding (90 MPH in a 65 MPH zone). Defendant was arrested for driving under the influence of drugs. A search under the driver’s seat recovered a loaded Glock .50 handgun and “tooters” for snorting drugs. The nature of the arrest offense (DUI) “supplied a reasonable basis for believing that evidence relevant to that type of offense might be in the vehicle”. “The deputies had unqualified authority to search the passenger compartment of the vehicle and any container found therein” (Peo. v. Nottoli (2011) 199 Cal. App. 4th 51).
An Atascadero Police officer stopped the defendant’s vehicle after having observed three traffic violations. Defendant was a known convicted felon, exhibited signs of DUI drugs, and admitted he had used Percocet and marijuana earlier in the day. When requested to exit the vehicle, the defendant took off his jacket, tossed it on the driver’s seat, rolled up the car window, tossed his keys inside the car, and shut and locked the car door. After a field evaluation, he was arrested. A search of the passenger area recovered 518 single doses of methamphetamine. “The arrest for being under the influence of a controlled substance supplied a reasonable basis for believing that evidence relevant to that type of offense might be in his vehicle” (Peo. v. Quick (2016) 5 Cal. App. 5th 1006).
Here is the rub with these decisions. In my way of thinking, all these case facts also equaled probable cause to search the entire vehicle, i.e. a more expansive search beyond the passenger area. But the appellate courts decided these facts fulfilled the reasonable suspicion requirement articulated in Gant.
In some cases, the reasonable suspicion standard was not fulfilled. Examples:
While conducting a drug investigation, Tucson, Arizona officers observed the defendant pull in and park in his driveway. Officers had prior knowledge that he had a suspended driver’s license and an outstanding arrest warrant. Officers met the defendant 10’-12’ from his car. He was arrested, handcuffed, and placed in the back of a patrol unit. Officers returned to the car, searched, and found a handgun and a bag of cocaine. The search was unlawful because the arrest offenses (license suspension and a warrant) were not associated with evidence or contraband that would normally be found in the passenger area (Gant v. Arizona (2009) 556 U.S. 332).
A state trooper arrested the defendant for driving with a suspended license. The trooper searched the defendant's truck and found methamphetamine and a handgun. The evidence was suppressed because there was no reason to believe any evidence related to the custody offense would be found inside the truck (U.S. v. Maddox (2010) 614 F 3d 1046).
Officers stopped the defendant’s vehicle for failing to signal a turn. Defendant refused to exit the car, locked himself inside, repeatedly questioned why he was being stopped, and insisted on talking with a police supervisor. After ten minutes, officers broke a window, “tased” defendant, and arrested him for 148 P.C. - Resisting and Obstructing an Officer. A search of the passenger area located empty baggies and cash in the center console and rock cocaine hidden in an air vent. The appellate court ruled that the nature of this arrest did not give rise to any reasonable suspicion that more evidence would be found in the passenger area. Allowing officers to look for “motive evidence” as to why defendant “resisted officers” was overbroad. “Impeding an officer’s investigation is unlikely to leave evidentiary traces, such as fruits or instrumentalities of a crime, in a vehicle” (Peo. v. Evans (2011) 200 Cal. App. 4th 735).
The following additional points are worthy of consideration:
1) You are going to make arrests for crimes that do not have evidence or contraband as part of their corpus delecti. Thus, there will be no evidence of the crime for which the person was arrested in the passenger area. Examples: Driving with a revoked driver’s license, reckless driving, indecent exposure, warrant arrest, disturbing the peace, domestic violence, battery, trespassing, etc.). With custody and transportation, you are still able to do a full personal search of the arrestee in the field as incident to arrest prior to transportation to the police station or jail. Evidence or contraband found on the arrestee’s person or items carried, or additional factors such as the smell of alcohol on the driver’s breath or symptoms of drug influence may provide the “reasonable suspicion” to conduct a passenger area search.
2) Consider asking for a consent search (“Sir, is there anything against the law in your vehicle tonight?” “Do I have your permission to take a look?”). This card should not remain unplayed.
3) When there is a “caretaking purpose” for impounding a vehicle, an “administratively-driven” inventory search may be conducted. Evidence “fortuitously” found during the permissible scope of this search is admissible and may permit a further search of the car under the incident to arrest or probable cause doctrines.
4) If the arrestee is found to be on probation with a “search clause” or on parole, Fourth Amendment rights are waived and a vehicle search may be conducted.
U.S. made an additional ruling in Gant that shows those scholarly folks attired in black robes sitting on the bench in Washington D.C. have never ridden in a patrol car. An officer is permitted to conduct a passenger area search when the arrestee is not handcuffed, within reaching distance of the vehicle interior, and has access the vehicle to gain immediate control of a weapon or destroy evidence. So you have to leave leave your arrestee unrestrained, unsupervised, and within reaching distance of the open car door, then you turn your back and perform a passenger area search! Ridiculous, right!?? This reasoning flies in the face of our training when we take someone into custody. You are not going to sacrifice officer safety and the memory of your family in order to conduct a search in which you may possibly find some fortuitous contraband. In the 13-years since Gant was decided, I have never come upon a follow up case under these circumstances.
Please refer also to Bob Phillips, The Fourth Amendment – Search and Seizure – An Update, 22nd Edition, Pages 1447, 1458, 1503-1504, 1620 & 1622.
Will follow-up with further cases as they are decided.