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Thread: Arizona vs Gant

  1. #1
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    Just came across this, and did not see much info on it in these forums. Thought you may all be interested.


    This decision is recent, (April 21, 2009), so it is likely that most LEO's are not that clear on it yet.

    Basic case was: Police came to a house looking for owner, and made contact with a renter (Gant). Gant told LEO's that owner was not home and would be back later.

    LEOs leave, but run Gant and determine he has a suspended license. They come back later but Gant is not there, however Gant drives up a few minutes later. Gant exits his car and walks over to officers, who arrest him for Driving on a suspended license. Gant is handcuffed and placed in the back of a police cruiser. LEOs then search his car (incident to arrest) and find Cocaine and a firearm.

    And the finding of the court was:

    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 arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
    *EDIT: This is a SCOTUS decision.
    *EDIT: Added emphasis

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    Interesting. I'll have to research and read the entire decision. Seems like they bolstered our 4A rights, possibly considerably.
    "Why should judicial precedent bind the nation if the Constitution itself does not?" -- Mark Levin

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    Very good read, and it does seem like a big bolster to 4A rights.

    Decision: http://www.law.cornell.edu/supct/html/07-542.ZO.html

    Fourth amendment podcast: http://www.dontconsenttothesearch.co...h/Welcome.html

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    This decision was a big deal and many police departments have what is referred to as a read and sign log where ALL sworn personnel are required to read the newly minted Supreme Court Decsions and sign that they have done so.

    Many case my be overturned based on this decsions.



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    Rusty wrote:
    Very good read, and it does seem like a big bolster to 4A rights.

    Decision: http://www.law.cornell.edu/supct/html/07-542.ZO.html

    Fourth amendment podcast: http://www.dontconsenttothesearch.co...h/Welcome.html
    Just listened to podcasts #'d 17 and 18 (very good by the way). Question? In CA, if arrested dothe police have the authority toautomatically impound my car? Or can I have it towed myself as talked about in the podcasts? Scenario would be open carry issues, not DUI or drug offenses.
    "Why should judicial precedent bind the nation if the Constitution itself does not?" -- Mark Levin

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    First, I am in no way associated with this podcast, I just found it one day and found it quite interesting.

    As far as impounding your car incident to arrest. I think that would depend on what you were arrested for.

    If there was some evidence of the crime you were arrested for in the car, then they are able to search it incident to arrest.

    I think if most situations, you should be able to demand a tow truck take your vehicle to your house, or your mechanics shop or something.

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    A common police search play, incident to an arrest,is to impound a car for even the most flimflam of reasons. Then conduct a "inventory" of property in the vehicle(read treasure hunt)for the police storage form. The stated reason is for protecting the arrestee's property within the vehicle from theft by tow truck drivers and impound lot workers. What this really amounts to is a top to bottom search of the car including the trunk, and oh, if they find a gun, they will impound that also for safekeeping, and you will never see it again. If they find something illegal, you are going to get charged with whatever this inventory/search reveals.

    I am surprised this type of conduct was not mentioned in any of the SCOTUS decision. It is a very common practice. Telling the arresting officer you do not consent to searches, is not going to slow him down in the least from "inventorying" the car. He will tell you he is required by his police agency rules to do it.......

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    If you are present, you should have the right to have the car towed to a location under your control. Such as back to your house, or to a friends house or something. Or have someone come down and move the car for you.

    The reason behind impounding the vehicle is typically that it is parked illegally, or impeding traffic or something like that. If you are willing to remedy that situation, they should have to let you do that instead of having it impounded.

    If the impound is a result of a lapse in registration, insurance, your license status, or if the car is evidence of some crime, then that would be a different situation.

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    Rusty wrote:
    If you are present, you should have the right to have the car towed to a location under your control. Such as back to your house, or to a friends house or something. Or have someone come down and move the car for you.

    The reason behind impounding the vehicle is typically that it is parked illegally, or impeding traffic or something like that. If you are willing to remedy that situation, they should have to let you do that instead of having it impounded.

    If the impound is a result of a lapse in registration, insurance, your license status, or if the car is evidence of some crime, then that would be a different situation.
    I believe they would if a friend is with you at the time of arrest. Although if you are alone, the cops probably are not going to wait for your friend to shopw up to drive the car. Plus with this decision, even if you have a friend with you they can still search the car it seems to me, right?

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    Plus with this decision, even if you have a friend with you they can still search the car it seems to me, right?
    With this decision, they can ONLY search the car incident to arrest

    1. If you are capable of getting into the car and getting a weapon, or destroying some evidence. (seems unlikely, as if you are arrested, you are likely detained and in cuffs, therefore unable to get into the car)

    2. If there is evidence of the crime you were arrested for in the car. (so if they arrest you for an improper lane change, there is no evidence of that in the car, so they cannot search. On the other hand, if you are arrested for DUI, there may be beer cans or whatnot in the car, so they could search for evidence of the DUI incident to your arrest)

    3. Some other requirement for a warrant-less search is met. (This would be along the lines of, you consent to the search, or there is a pound of cocaine on the passenger seat in plain view or probable cause to think you committed some other crime)

    This ruling seems to make clear that there are some severe restrictions on how a search incident to arrest is conducted.

    This ruling did not really address impound searches. There is some precedent on the legality of impound Searches (South Dakota v. Opperman http://www.law.cornell.edu/supct/htm...8_0364_ZS.html ) but this really addresses impounds when the owner of the vehicle is not present. If you are there, and capable of requesting your vehicle be towed to a location of your choosing, I think the government would be hard pressed to meet strict scrutiny if challenged on 4A grounds.

    So, again with two quick examples.

    1. You are pulled over and arrested for a tail-light being out. In this case you should be able to have your car towed to your house instead of impounded and searched. The reason for the impound would be, car was causing a traffic hazard, illegally parked etc, and we need to keep the owners stuff safe. Both of these goals can be achieved by having the car towed to your house instead of an impound yard, where it will be subject to a search.

    2. You are pulled over and arrested for hit and run. In this case, the vehicle would be evidence of a crime, so the government would have cause to impound.

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    Ok, so I fail to see how this is a breakthrough case or what not. I don't see this hurting or helping the existing protocol for us, am I wrong on that?. Most searches happen after evidence if viewed through a window or a consent is made.

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    I'm certain we've discussed this case at length here before... but I'm unable to find it now... and there was some good discussion in that thread!

    Hmm... maybe that was over on CGN... but I'm almost certain I made a post about it over here...


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    It is important because:

    1. Pretextual traffic stops have been shown to be constitutional.

    LEO sees a guy with dred locks and a 420 sticker on his VW Van. LEO "knows" that guy has some pot on him, but he cant pull him over for that. However he notices that he is not wearing a seatbelt, so he pulls him over for that (something he would not normally care about).

    This guy is wise though, and he does not have any pot in plain view, and he refuses and consensual search of his vehicle.
    2. You can be arrested for a minor traffic violation

    Since the seatbelt violation is a misd. in the state (although no jail time is served, and you normally would just get a ticket) the LEO decides to arrest the subject for the seatbelt violation (supreme court ruled this as an okay act).

    Now that he has arrested him, he gets to search his vehicle incident to the arrest.
    This ruling says that they cannot search your vehicle incident to arrest unless. 1. There is a danger of you getting to a weapon in the vehicle, or 2. There is evidence of the crime you were arrested for in the vehicle.

    Since the example I used was a seatbelt violation, there is no evidence of that in the vehicle, so turning the car inside out and finding the pot would not be ok. LEOs have to be searching for evidence of the violation you were arrested for, there is no evidence in the car relating to you wearing a seatbelt.

    Also, no LEO is going to turn his back on you to search your car for weapons without having you secured. If you are secured, there is no danger of you getting to a weapon in the car, so there is no justification to search for weapons.

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    Rusty wrote:
    It is important because:

    1. Pretextual traffic stops have been shown to be constitutional.

    LEO sees a guy with dred locks and a 420 sticker on his VW Van. LEO "knows" that guy has some pot on him, but he cant pull him over for that. However he notices that he is not wearing a seatbelt, so he pulls him over for that (something he would not normally care about).

    This guy is wise though, and he does not have any pot in plain view, and he refuses and consensual search of his vehicle.
    2. You can be arrested for a minor traffic violation

    Since the seatbelt violation is a misd. in the state (although no jail time is served, and you normally would just get a ticket) the LEO decides to arrest the subject for the seatbelt violation (supreme court ruled this as an okay act).

    Now that he has arrested him, he gets to search his vehicle incident to the arrest.
    This ruling says that they cannot search your vehicle incident to arrest unless. 1. There is a danger of you getting to a weapon in the vehicle, or 2. There is evidence of the crime you were arrested for in the vehicle.

    Since the example I used was a seatbelt violation, there is no evidence of that in the vehicle, so turning the car inside out and finding the pot would not be ok. LEOs have to be searching for evidence of the violation you were arrested for, there is no evidence in the car relating to you wearing a seatbelt.

    Also, no LEO is going to turn his back on you to search your car for weapons without having you secured. If you are secured, there is no danger of you getting to a weapon in the car, so there is no justification to search for weapons.
    Replace not wearing a seatbelt with small child not in a car-seat and you have it dead-on. The only reason that I bring it up is I'm 99% sure that lack of seatbelt is an infraction, not a misdemeanor whereas child not in a car-seat is... If I'm wrong, my apologies in advance.

    There is also a part 3

    3) if the agency has an established practice of vehicle impoundment which also includes vehicle inventory. They are not required to discount any evidence of a crime which might be found.

    This gets really gray in your established scenario, we don't know the policy of the agency in question. Nor do we know if there are other factors available to the LEO suchas letting a passenger take posession of the vehicle.

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    oc4ever wrote:
    A common police search play, incident to an arrest,is to impound a car...Then conduct a "inventory" of property in the vehicle(read treasure hunt)for the police storage form...

    I am surprised this type of conduct was not mentioned in any of the SCOTUS decision. It is a very common practice.
    According to one of the posts above, the court did: the part about "other exceptions to the warrant requirement."

    If I recall, Gant was arrested in his driveway, or some place where the inventory search would not apply because the car didn't need impound.

    Yes, Gant protected rights, but there are so many exceptions to the warrant clause that its effect, I think, is going to be felt in only a very few cases with certain specific circumstances.

    If you hunt around the legal blogs, you'll findquite a fewappellate decisions where it looks like, from the summary and holding, that the defensechallenged under Gant a search, but the court said someother warrant exception still applied like inventory search, or something else saved the search like "inevitable discovery" (which means the cops would have found the evidenceanyway in some other legal way).

    Don't get me wrong. I'm glad to have the ruling. It will keep good guys from getting their car searched in a parking lot (if the store is cool with leaving it there), their own driveway, or friend's driveway,under specificcircumstances.

    But, if itis a roadside stop, which many are, little has changed in the big picture.

    I'm happy to be wrong if someone has more analysis.
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    Seems to me like a good reason to always pull into a parking lot if one is available.
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    mjones wrote:
    ...There is also a part 3

    3) if the agency has an established practice of vehicle impoundment which also includes vehicle inventory. They are not required to discount any evidence of a crime which might be found...
    Citation, please. Otherwise I have to call FUD.
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    Rusty wrote:
    Very good read, and it does seem like a big bolster to 4A rights.

    Decision: http://www.law.cornell.edu/supct/html/07-542.ZO.html

    Fourth amendment podcast: http://www.dontconsenttothesearch.co...h/Welcome.html
    Also can find it here. http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf
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    CA_Libertarian wrote:
    mjones wrote:
    ...There is also a part 3

    3) if the agency has an established practice of vehicle impoundment which also includes vehicle inventory. They are not required to discount any evidence of a crime which might be found...
    Citation, please. Otherwise I have to call FUD.
    Addmittedly this is not Supreme Court tested post-Grant. But it does look like this is the current thoughts amongst even non-LEO.



    South Dakota v. Opperman, 428 U.S. 364 (1974).


    Thornton v. U.S., 541 U.S. 615 (2004).


    Colorado v. Bertine, 479 U.S. 367 (1987).


    Florida v. Wells, 495 U.S. 1 at 3 (1990).


    http://www.patc.com/weeklyarticles/a...searches.shtml

    "It is important to note that while such policies may allow for some discretion on the part of the officer, the discretion must be “exercised according to standard criteria and on the basis of something other than suspicion of criminal activity.” Thus, inventory searches cannot be used as fishing expeditions for evidence of crime, but instead must be conducted in a consistent manner supported by a policy.

    It is noted that in Gant, the arrestee had pulled the vehicle off the street and into a private driveway which may have impacted whether or not the officers were justified in towing the vehicle. It is also noted that there may be cases where a subject is arrested in a vehicle but the subject is not the driver or not the registered owner and the registered owner is also on the scene. There may also be cases where a person in the vehicle is capable of driving the vehicle and there is no reason related to the arrest to tow the vehicle. In these examples, the inventory exception may simply not apply."



    edited to fix odd formatting...
    edit: changed doesn't to does in my first sentence....doh!

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    CA_Libertarian, had a chance to look at any of my last post yet? I'd like to hear your thoughts about it when you do.

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    <<<WARNING: Epic post incoming!>>>


    Thanks for the citations, but I'm still not convinced.

    I would go citation-for-citation and explain why, but in the interest of brevity, I'll just say all of the citations rely on case law that the Gant court blasts for misconstruing the Belton doctrine. In fact, the Gant court specifically mentions Thornton.

    Contrary to the State’s suggestion, a broad reading of Belton is also unnecessary to protect law enforcement safety and evidentiary interests. Under our view, Belton and Thornton permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest...
    The Gant court also discusses the implications of allowing officers to "rummage" through vehicles outside of the strict exceptions to the 4th Amendment:

    ...Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment —the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.
    While the Gant decision doesn't specifically address the issue, SCOTUS gives a very clear and concise list of exceptions to the 4th amendment when it comes to vehicle searches. I still don't see anything that convinces me a "vehicle inventory" - without a warrant - is an exception to the rules reiterated in Gant.

    The basis of the idea that "as long as it's regular policy/procedure, then it's OK" is somewhat in line with the logic of Arizona v Hicks and the "plain sight" doctrine. However, the false assumption is that an officer has the right to inventory a vehicle upon impounding that vehicle. The Gant opinion in fact reinforces the idea that the 4th Amendment applies to vehicles:

    ...the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, see New York v. Class, 475 U. S. 106, 112–113 (1986) , the former interest is nevertheless important and deserving of constitutional protection, see Knowles, 525 U. S., at 117.
    This should lead a logical person to conclude that the same rules and exceptions apply whether the search is incident to arrest or incident to impounding of the vehicle. The Gant court sends a VERY clear message to police: get a warrant. The court grants exception ONLY when there is a reasonable belief the arrestee can gain access to a weapon or evidence in the vehicle.

    In essence, a impound vehicle inventory does not serve a significant state interest (such as preserving evidence or the life of a peace officer). Therefore, the 4th Amendment requirement to obtain a warrant MUST be observed.

    With modern technology, it wouldn't be hard for cops to get a search warrant in the amount of time it takes to get a tow truck out to the scene of an arrest. And if it takes longer, just put some evidence tape across the doors/windows of the car, and store it securely until such time they can obtain a warrant.
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    Cool, nice review CA_Libertarian. Thanks for looking at it.

    Personally, I think I've come to the same conclusions you have...for largely the same reasons. Unfortunately though, it seems there are many agencies out there now following the 'established practice' theory for impounds. Only time will tell to see how that irons out in the courts.

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    CA_Libertarian wrote:
    SNIP...<<<WARNING: Epic post incoming!>>>
    I like the way you think.

    However, I can't see police ignoring evidence discovered during an inventory search. I think courts have been allowing inventory-search-evidencefor quite a while, meaning the judicial side has an explanation all cooked-up...um...figured out and not only well-justified, but cemented in place through custom.

    What you are saying, in effect, is that Gant over-ruled by omission whatever warrant exception was in place thatmade admissible evidence discovered during an inventory search.

    I kinda don't think it is going to work that way. I'd love to be wrong; but I suspect the court is going to be more explicit if they intend to reverse an earlier SCOTUS decision.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

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    Citizen wrote:
    What you are saying, in effect, is that Gant over-ruled by omission whatever warrant exception was in place thatmade admissible evidence discovered during an inventory search.
    Not by omission... the court is very clear: the 4th Amendment requires a warrant, with very "narrow" exceptions where life/limb/evidence may be harmed/damaged/destroyed if immediate action is not taken.

    In reading the decision the SCOTUS specifically addresses "vehicles searches incident to arrest" as being unconstitutional without meeting an exception criterion. This practice went on for over 30 years, and SCOTUS slapped down that policy.

    I agree most agencies will continue to ignore the 4A until a case makes it to a federal appeal court and sets specific precident. Statist are like that... they'll just pretend to be more stupid than they really are in hopes they'll get away with trampling the US Constitution.
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