Searches of Motor Vehicles Incident to Arrest in a Post-Gant World
By Kenneth A. Myers, J.D.
On April 21, 2009, the U.S. Supreme Court decided Arizona v. Gant,1 in which the Court announced new, narrow rules as to when law enforcement officers properly may search the passenger compartment of a motor vehicle incident to the arrest of one of its occupants. For approximately 28 years prior to Gant, police relied upon the apparent holdings of other U.S. Supreme Court decisions,2 as well as the holdings of other state and federal precedent, to provide broad justification3 for searches following the lawful arrest of any occupant, or recent occupant, of a motor vehicle.
However, in Gant, the Court limited this Fourth Amendment search authority to two circumstances: “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 the arrest.”4 This article examines how lower courts have interpreted the two-part holding of Gant and provide law enforcement officers guidance in conducting future searches of motor vehicles incident to arrest in a post-Gant world.
Summary of Gant
In Gant, Tucson police officers arrested Rodney Gant for driving with a suspended license. After he was handcuffed and locked in the back of a patrol car, officers searched his car and found cocaine in a jacket located on the backseat. Gant moved to suppress the cocaine found on the grounds that the warrantless search of his car violated the Fourth Amendment. The Arizona Supreme Court held that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement did not justify the search in this case.5
The U.S. Supreme Court agreed. Under the facts of the case, Gant was not within reaching distance of the vehicle at the time of the search (he was handcuffed and locked inside a police car), and there was no reason to believe the car contained evidence of the crime for which he was arrested (driving with a suspended license). Therefore, the search of his car violated the Fourth Amendment, and the contraband discovered during the search was suppressed.6
Searches Incident to Arrest
Special Agent Myers is a legal instructor at the FBI Academy.
According to the Supreme Court, searches conducted without a warrant are presumed unreasonable.7 However, the Court has recognized a “few specifically established and well-delineated exceptions”8 to the search warrant requirement, to include searches incident to lawful arrest.9 This exception, as defined by the Court in Chimel v. California,10 “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations”11 and is limited to areas within the arrestee’s “immediate control.”12 In applying this exception to the motor vehicle context, the Court in New York v. Belton13 held that the area of immediate control is limited to the “passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant.”14 In Gant, the Supreme Court clarified that Belton tells us what area of the motor vehicle may be searched incident to arrest (scope),15 while the two-part rule announced in Gant establishes when such area may be searched (prerequisite).16 The Gant test is an either/or proposition, meaning that only one prong of the test must be satisfied to be in compliance with the holding of the decision.17
Access to Passenger Compartment
The first prong of the holding in Gant deals with access and states 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.”18 This part of the Gant holding is tethered to the Court’s decision in Chimel v. California19 and is based on the “safety and evidentiary justifications” of Chimel’s “reaching-distance rule.”20
To understand when an arrestee is outside of the reaching distance of the passenger compartment of a motor vehicle, it is best to start with the facts of Gant. In Gant, the defendant was arrested, handcuffed, and locked in the back of a police patrol car at the time that his vehicle was searched.21 Under these circumstances, the Court determined that the defendant had no access to his vehicle and that the search of his vehicle incident to his arrest was unreasonable under the first prong of the Gant test.22 Clearly, if an individual has been arrested, placed in handcuffs, and secured in a police vehicle, the first prong of Gant does not permit law enforcement officers to conduct a search incident to arrest of the passenger compartment of that individual’s motor vehicle as the individual no longer has access to the vehicle. Courts interpreting the Supreme Court’s ruling agree that searches incident to arrest under these circumstances would be unreasonable under the first prong of Gant.23 However, if there are multiple occupants in a vehicle and one occupant is arrested, handcuffed, and secured in a police vehicle, the search of the passenger compartment of the vehicle nevertheless may be permissible incident to arrest if the other occupants still have access to the vehicle. For example, in United States v. Davis,24 the Eighth Circuit Court of Appeals upheld the search of the passenger compartment of a vehicle incident to arrest of the driver when the three remaining, unsecured, and intoxicated occupants “were standing around a vehicle redolent of recently smoked marijuana.” According to the court, the facts presented in this case are “textbook examples of ‘[t]he safety and evidentiary justifications underlying Chimel’s reaching distance rule....’”25
Outside of a Gant-like fact pattern, where the arrestee is handcuffed and placed in the back of a patrol car, the analysis under this first prong of Gant becomes more challenging. Some of the difficulty derives from the language used in the majority’s decision in Gant. In several parts of the decision, the Court refers to whether the arrestee is “secured”26 or “unsecured”27 and within access of the vehicle at the time of the search when analyzing the first part of the test. Moreover, in a footnote, the Court explains that “[b]ecause officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains.”28 However, when announcing the holding of the decision (and articulating the new two-part rule), the Court dropped any reference to the arrestee being secured or unsecured and simply stated (under the first prong of the test) 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.”29
In Boykins v. State30 the Court of Appeals of Georgia interpreted this first prong of the Gant rule “to mean that the police may conduct a search of the passenger compartment of the arrestee’s vehicle incident to his lawful arrest in the ‘rare case’ in which the arrestee has a ‘real possibility of access’ to his vehicle.”31 In analyzing Gant, the court emphasized that the requirement that the arrestee be “unsecured” was “noticeably absent” from the Supreme Court’s first prong of the rule.32
“...the Court limited this Fourth Amendment search authority to two circumstances....”
In Boykins, the defendant had been arrested on an outstanding probation warrant, handcuffed, and stood outside of his vehicle under the control of a policeman when his vehicle was searched by another officer. The Court noted that “the trial court apparently inferred from the officer’s testimony that Boykins was within arm’s reach of the passenger compartment”33 at the time of the search. The Court then distinguished Gant, reasoning that “unlike the defendant in Gant, Boykins had not been placed in the back of the patrol car at the time of the search; he was standing outside of his vehicle.”34 Accordingly, in affirming Boykin’s conviction for possession of cocaine (which was found in the passenger compartment of his vehicle during the search incident to arrest), the Court held that “whether he [Boykins] had any ‘real possibility of access’ to the passenger compartment of his vehicle was a mixed question of fact and law for the trial court to determine. We will not second-guess the trial court’s finding that the search was justified under Gant and Chimel on the basis of officer safety.”35
Similarly, in applying the two-part Gant rule to a nonvehicle situation, the Third Circuit Court of Appeals in United States v. Shakir36 held that “a search is permissible incident to a suspect’s arrest when, under all the circumstances, there remains a reasonable possibility that the arrestee could access a weapon or destructible evidence in the container or area to be searched. Although this standard requires something more than a theoretical possibility that a suspect might access a weapon or evidence, it remains a lenient standard.”37 In Shakir, the court affirmed the conviction of an individual for armed bank robbery and refused to suppress evidence found in a bag near his feet during a search incident to his arrest. The court reasoned that “[a]lthough he was handcuffed and guarded by two policemen, Shakir’s bag was literally at his feet, so it was accessible if he dropped to the floor. Although it would have been more difficult for Shakir to open the bag and retrieve the weapon while handcuffed, we do not regard this possibility as remote enough to render unconstitutional the search incident to arrest.”38 The court, citing the Fifth Circuit Court of Appeals, explained that handcuffs are not “fail-safe”39 and “are a temporary restraining device; they limit but do not eliminate a person’s ability to perform various acts.”40
On the other hand, in State v. Carter41 the Court of Appeals of North Carolina ruled that when the defendant had been “removed from the vehicle, handcuffed, and directed to sit on a curb” when the search of the vehicle was conducted, there was “no reason to believe defendant was within reaching distance or otherwise able to access the passenger compartment of the vehicle.”42 Accordingly, the court could not justify the search incident to arrest under the first prong of Gant.43
Additionally, in United States v. Chavez,44 the U.S. District Court for the Eastern District of California held that when a defendant fled from the site of an attempted arrest, police were not justified to search his vehicle incident to arrest. The subject had eluded the officers, jumped a fence, and was nowhere near the scene when the search of his vehicle was conducted. Moreover, the police were standing by the car to ensure that if the defendant did return, he would not have access to the vehicle.45
From these decisions, it is clear that the first prong of the Gant test involves “case-by-case, fact specific decision making”46 by law enforcement as there no longer is any bright-line rule. The first prong of the test hinges on access and requires officers to articulate facts demonstrating that there is a real or reasonable possibility that the defendant can access the passenger compartment to obtain a weapon or destroy evidence at the time of the search. When an arrestee has been handcuffed and secured in a police vehicle, the justification for a subsequent search incident to arrest of the passenger compartment of the arrestee’s vehicle no longer is present under the first prong of the test. However, when the arrestee has been handcuffed but not yet secured in a police vehicle, there is case law in support of permitting the search of the passenger compartment of the arrestee’s vehicle incident to arrest for weapons and evidence as long as the arrestee still is within reaching distance of the vehicle. This is not to recommend that officers keep recently arrested subjects near their vehicles so that such searches may be justified as officer safety remains of paramount importance.
“Reasonable To Believe” Standard
The second prong of the Gant test permits the search of the passenger compartment of a motor vehicle following the arrest of a recent occupant of that vehicle when “it is reasonable to believe the vehicle contains evidence of the arrest.”47 This prong does not deal with access48 and is not tethered to the holding of Chimel.49 Instead, this prong is “consistent with the holding in Thornton“50 and is based on Justice Scalia’s concurring opinion in that case.51 Additionally, this second prong is “unique to the automobile context.”52
The key to understanding the second prong of the Gant test is to define “reasonable to believe.” In Gant, the police arrested the defendant for driving with a suspended license.53 The Court found the subsequent search incident to arrest of the defendant’s vehicle to be unreasonable as it was not likely that the police would discover offense-related evidence during the search.54 The Court explained that “[i]n many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence...[b]ut in others, including Belton and Thornton, the offense of the arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.”55 Of note, both Belton56 and Thorton57 involved arrests for drug offenses.
The majority in Gant did not provide further explanation or guidance as to the second prong of the test. As stated by Justice Alito in his dissenting opinion, this “creates a host of uncertainties.”58 Not surprisingly, lower courts have struggled with the language of this part of the test and have come up with myriad interpretations.
“The key to understanding the second prong of the Gant test is to define ‘reasonable to believe.’”
An analysis of these lower court opinions reveals some commonalities. First, the courts generally have not interpreted the “reasonable to believe” standard as being synonymous with probable cause. The vast majority of courts interpreting Gant have concluded that the standard is less than probable cause, reasoning that a probable cause standard merely would duplicate the level of proof required under the motor vehicle exception.59 However, if the standard is not probable cause, what is it? Courts interpreting this part of the test are not in agreement.60 There has been a wide range of explanations of the test,61 but most courts conclude that “reasonable to believe” is determined in one of two ways: 1) by a reasonable suspicion standard or 2) by the nature of the offense. It should be noted that Justice Alito, who dissented in Gant, has described this test as a “reasonable suspicion requirement.”62
In United States v. Vinton,63 the D.C. Court of Appeals presumed that “‘the reasonable to believe’ standard probably is akin to the ‘reasonable suspicion’ standard required to justify a Terry64 search.”65 In applying the standard to the facts of the case, the court justified the search of a locked briefcase found in the passenger compartment of a defendant’s vehicle after he was arrested for the unlawful possession of a weapon and the officer had discovered other weapons in the vehicle during a protective search of the passenger compartment.
In People v. Chamberlain,66 the Supreme Court of Colorado, en banc, concluded that the “reasonable to believe” standard of Gant requires “some degree of articulable suspicion,” similar to the “lesser degree of suspicion commensurate with that sufficient for limited intrusions, like investigatory stops.”67 The court reasoned that the “‘nature-of-the-offense’ exception, in which a reasonable belief is held to exist whenever the crime of arrest is one for which evidence is possible and might conceivably be found in the arrestee’s vehicle...would suffer from objections similar to those that Gant condemned in the broad reading of Belton.”68 In Chamberlain, the court upheld the suppression of evidence found in the defendant’s vehicle after she had been arrested for false reporting; when the officer already possessed her driver’s license, registration, and proof of insurance; and it was not reasonable that her vehicle would contain any additional evidence of the offense of the arrest.69
A second line of cases interprets “reasonable to believe” as a “nature-of-the-offense” test. This test originates from the Court’s language in Gant, where the Court explained that there are some offenses, like traffic violations, where “there will be no reasonable basis to believe the vehicle contains relevant evidence.”70 The Court then cited as examples Atwater v. Lago Visa71 (involving an arrest for “driving without [a] seatbelt fastened, failing to secure [passenger] children in seatbelts, driving without a license, and failing to provide proof of insurance”)72 and Knowles v. Iowa73 (involving an arrest for speeding). The Court stated that in other cases, like Belton74 and Thornton75 (both involving drug arrests), the “offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.”76 The Court then concluded that since Gant was arrested for driving with a suspended license, the police could not expect to find evidence of this crime in the passenger compartment of his vehicle.77
“To understand when an arrestee is outside of the reaching distance of the passenger compartment of a motor vehicle, it is best to start with the facts of Gant.”
A significant number of lower courts have used the above language to conclude that the second prong of Gant hinges on the “nature of the offense” involved in the arrest and “not some independent evidence that gives rise to a belief that the particular vehicle contains evidence.”78 With this test in mind, it is important to examine what types of offenses courts have determined would fall within the parameters of the test. Clearly, most routine traffic offenses fall outside this second prong of Gant.79 However, courts have justified searches incident to arrest under the “nature of the offense” test for the following offenses: theft,80 drug offenses,81 illegal firearms,82 driving under the influence,83 and fraud and abuse.84 It must be remembered that this search authority is limited to evidence of the crime for which the arrest was made “or of another crime that the officer has probable cause to believe occurred.”85
While the U.S. Supreme Court has limited the ability of law enforcement to search the passenger compartment of a motor vehicle incident to the arrest of a recent occupant of that vehicle, it certainly has not eliminated this viable search warrant exception. However, officers applying this exception must be familiar with the wording and meaning of the Court’s two-part test articulated in Gant. It also must be remembered that facts satisfying either prong of the test will result in a reasonable search incident to arrest.
Under the first prong, the defendant still must have a real possibility of access to the vehicle at the time of the search for this part of the test to be satisfied. This has become a fact-specific, case-by-case determination for the officer to make at the scene of the arrest. Factors in this analysis include whether or not the subject is handcuffed, or secured in a police vehicle, the proximity of the subject to the vehicle to be searched, and subject-to-officer ratio.
If the arrestee no longer has access to the passenger compartment of the vehicle, the officer must determine if it is reasonable to believe that evidence of the offense of the arrest is located in the passenger compartment of the vehicle to be searched. Courts have differed in their interpretation of this second prong of the test, and, until the Supreme Court specifically addresses this issue, it is incumbent on law enforcement officers to learn and follow the precedent of their respective jurisdictions. The two most common interpretations of the second prong of the test are the reasonable suspicion standard and the nature-of-the-offense test.
Even if both prongs of the Gant test are inapplicable, a search of a passenger compartment of a motor vehicle still would be considered reasonable if the officer obtains a warrant or follows the prerequisite and scope of another recognized search warrant exception.86 While the holding of Gant restricted searches incident to arrest, it had no impact on the other exceptions, such as consent,87 the emergency exception,88 the motor vehicle exception,89 and the inventory exception.90