SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Finally, the U.S. Supreme Court decided in Arizona v.
Gant (2009) 556 U.S. __ [129 S.Ct. 1710; 173 L.Ed.2 nd
485], that a warrantless search of a vehicle incident to
arrest is lawful only when the arrestee is unsecured and
within reaching distance of the passenger compartment at
the time of the search. (Overruling New York v. Belton
(1981) 453 U.S. 454, 460 [69 L.Ed.2 nd 768, 775], in so far
as it has been interpreted to allow the warrantless,
suspicionless search of a motor vehicle incident to arrest
after the suspect has been handcuffed and secured in a
patrol car from where he could no longer lunge for
weapons or destroy evidence.)
The theory of Gant is not restricted to vehicle
searches. The same theory, disallowing a search
incident to arrest when the suspect has already been
secured, is applicable as well to an arrest within
one’s residence. (People v. Leal (2009) 178
Cal.App.4 th 1051.)
Citing United States v. Fleming (7 th Cir.
1982) 667 F.2 nd 602, 605-608, the Leal
Court noted that handcuffing alone is
probably not enough to fully secure the
suspect. (Id., at p. 1062.)
However, apparently putting a suspect into a
locked patrol vehicle while unhandcuffed is
sufficient to trigger the rule of Gant. (See
United States v. Ruckes (9 th Cir. 2009) 586
F.3 rd 713; issue not discussed.)
The Gant Court, however, also mentions that there is a
second legal theory justifying the warrantless search of a
vehicle, incident to arrest, even if the suspect has been
removed from the vehicle and secured: When it is
“reasonable to believe evidence relevant to the crime of
arrest might be found in the car.” (Id., at p. __.)
Note: The Supreme Court in Gant mentions this as
a second “alternate” theory justifying the
warrantless search of a vehicle incident to arrest,
but fails to explain when and how it is applicable,
merely citing Thornton v. United States, supra, as
authority for its application.
© 2011 Robert C. Phillips. All rights reserved
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