Bye, Bye Belton
October 31, 2009 – 9:00 am
Years ago, while working an off-duty job in an apartment complex, I discovered a subject sitting in a vehicle on the property. The vehicle did not have a decal identifying it as a vehicle that belonged to a resident so I approached the vehicle and asked the occupant for his identification. As was my normal course of action, I ran a check for wants and warrants on him and the dispatcher informed me that the individual had an outstanding warrant on file. After the subject was cuffed and stuffed in the wagon for transport to the jail, I turned my attention to the vehicle.
Since I had made a full custodial arrest of the subject while he was seated in the vehicle, I could search the vehicle under New York v. Belton (453 U.S. 454 (1981)). I discovered a handgun that was concealed between the driver’s seat and the console so I charged the subject with possession of a concealed weapon.
When the case came to court, the defense attorney suggested that because the subject has already been secured in the wagon there was no threat to me and there was no danger that any evidence might be destroyed so I should have gotten a warrant before I conducted the the search. It was a well presented argument and although the judge could not recall the case, he knew that I was permitted to conduct the search of the vehicle where the subject had been seated since I had made a full custodial arrest. He told the attorney she could appeal the case, which she never did.
After that incident, I started carrying several Supreme Court rulings in the brief case that I used for court including New York v. Belton, Chimel v. California and Berkemere v. McCarty. These cases addressed most of the search and seizure and confession issues that I encountered as a street cop – until last April.
Arizona v. Gant
Last April, the United States Supreme Court issued a ruling that changed the rules for a search incident to arrest, rejecting 27 years of doctrine that was established under New York v. Belton.
In Arizona v. Gant, Rodney Gant was arrested for driving with a suspended license, handcuffed and placed in the back seat of a patrol vehicle. As you might expect, there were also several officers around during the search of Gant’s vehicle which yielded some cocaine.
The search of Gant’s vehicle incident to the arrest is standard operating procedure under Belton. Unfortunately, the Court decided not to “leave well enough alone” and ruled that the search was a violation of the 4th Amendment.
Basically, the Court ruled that a search of the passenger compartment of a vehicle incident to an arrest can only be conducted under two conditions. The ruling reads that a search can be conducted “only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest. Otherwise, the officer has to get a warrant to search the car unless there is some other exigent circumstance or he can obtain permission to search from the owner.
My other “go to” case may still come be useful during incidents like the Gant case. In Chimel v. California (395 U. S. 752 (1969)), the Court ruled that a search incident to an arrest may be conducted if the suspect could lunge to an area and destroy evidence or reach a weapon. Of course this would not have applied in the Gant case because, like in my case, he had been already been handcuffed and moved away from the vehicle so the threat has been removed.
There is a more recent case, Thornton v. United States (541 U. S. 615 (2004)), where the Court gave us a little wiggle room when they ruled a search of a vehicle incident to the arrest of a recent occupant may be also justified “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Again, this didn’t work in the Gant case because he had been arrested for a suspended operator’s license there was much chance that evidence of Gant’s suspended driver’s license would be found in the vehicle.
In the words of Bob Dylan, “These times they are a changing” and you better keep abreast of the changes or it may cost you in court. Remember to stay safe, always wear your vest and have a great week!