GANT - An article for Illinois Attorneys

Is Gant the biggest (criminal procedure) case since Miranda?

Who knows?

Miranda is arguably the biggest 5th Amendment case of all time.

Will Gant be the biggest 4th Amendment case?

For 28 years, police officers all over the United States had a “free” search of the passenger compartment of vehicles after they had arrested an occupant out of a vehicle.[1] No more.

First, what do we mean by “free?”

All legal “rules” must be tied to a rationale – a reasoning. We all learned that in law school. Some how the search incident to arrest rule became unanchored from its rationale, i.e. the search incident to arrest doctrine as applied to vehicles had, over the last 28-year period, lost its “reason” for existence.

Originally, the rationale for the search incident exception to the warrant requirement was to protect officers from an arrestee’s lunging to access a weapon or destroy evidence.

In order to understand the importance of this issue (and the Gant decision), attorneys (and officers) must understand the following “trilogy” of United States Supreme Court cases, which culminates in Gant.

Chimel v California (1969)
The holding in the landmark case of Chimel v California[2] was basically that, after the lawful arrest of Chimel, officers could not search other rooms in the house because Chimel could not access them.

In Chimel, officers arrested the suspect and then discovered valuable evidence related to the crime in another room. The Supreme Court said that the search incident doctrine required that the search be limited to areas where Chimel could access a weapon or destroy evidence, areas within Chimel’s immediate control at the time of the arrest.

New York v Belton (1981)
Twelve years later the United States Supreme Court tackled a search incident to arrest case involving a vehicle. This occurred in New York v Belton.[3] In Belton, an officer lawfully arrested four occupants of a vehicle, one of whom was Belton, and placed them at the four exterior corners of the vehicle. The officer did not handcuff the arrestees. The officer found Belton’s jacket in the back seat, unzipped a pocket and found drugs. . The Court decided to create the “bright-line” rule in this situation that officers could always search the passenger compartment of a vehicle, and closed containers therein, incident to the valid custodial arrest of an occupant of the vehicle.

Most state courts, including Illinois, interpreted this to mean that officers could search the passenger compartment whether the arrestee was handcuffed or not. Illinois courts went even a step further ruling that locked containers in the passenger compartment could be searched incident to a valid custodial arrest. In People v Tripp,[4] for example, the Illinois court of Appeals, District 1 held that officers could search a locked foot locker in the passenger compartment, explaining as follows:

“Even though the defendant may no longer have access to the vehicle and may be restrained in custody, the police are still free to search the vehicle. Bailey, 159 Ill.2d at 506, 203 Ill.Dec. 459, 639 N.E.2d 1278. Further, it has been held that locked glove compartments are subject to search as containers within the vehicle. See United States v. Woody, 55 F.3d 1257 (7th Cir.1995).
In the present case, defendant was arrested after he failed to produce his driver's license and insurance and the police subsequently discovered a handgun beside the front passenger seat. At this point, defendant was under arrest for a weapons charge as well as a traffic violation. The officers were free to search the passenger compartment of the vehicle ( Bailey, 159 Ill.2d at 506, 203 Ill.Dec. 459, 639 N.E.2d 1278), including any containers found within the passenger compartment, such as locked glove compartments ( Woody, 55 F.3d at 1270), or a coat pocket that was zippered closed ( Belton, 453 U.S. at 460, 101 S.Ct. 2860). Based upon Belton and Bailey, we therefore find that the search of the locked footlocker, found within the passenger compartment of *954 defendant's vehicle, was properly searched incident to his lawful arrest.”

But the United States Supreme Court had never decided the specific issue of whether passenger compartments or closed containers could be searched incident to a valid custodial arrest after the arrestee had been handcuffed – at least until Gant.

Arizona v Gant (2009)
In Gant, officers arrested Gant as he got out of his vehicle based on an arrest warrant for a suspended license. The officers then handcuffed Gant and searched the passenger compartment of his car, finding a weapon and drugs.

Both the Arizona Court of Appeals and the Arizona Supreme Court determined that Belton could not be construed to extend the search incident doctrine to situations where the arrestee had been handcuffed.[5]

The United States Supreme Court in Gant held that a car may not be searched incident to arrest after the arrestee has been handcuffed and placed in the patrol vehicle because at that point there is little chance that the arrestee can get to a weapon or evidence.

Other Vehicle Search Theories That Remain Viable
Although the search incident to arrest doctrine has been altered probably forever, the other long-standing theories for searching a vehicle remain the same. They are:
probable cause (the automobile exception);[6]
probable cause (warrant);[7]
consent;[8]
Terry doctrine;[9]
emergency / exigency doctrines;[10]
inventory;[11] and
miscellaneous doctrines / theories.[12]

Issues Raised by Gant But Not Resolved
The Supreme Court resolved an important issue in Gant but raised some others. A couple of those issues will be important to Arizona attorneys and will inevitably have to be resolved by Arizona courts:

1. Will officers be permitted to search for evidence related to the arrest?
The majority stated, in dictum, that although officers cannot automatically conduct a search incident to arrest after the arrestee has been handcuffed, officers may search for evidence related to the arrest. This may be referred to as the “Scalia doctrine” as it was he who proposed this approach to the search incident doctrine in a case several years ago.[13] An example would be that, if an occupant of a vehicle is arrested on an arrest warrant for drugs, the officers may search the vehicle for drugs.
It will undoubtedly be the burden of the officer to explain how the evidence searched for in the vehicle is related to the arrest.[14]

Furthermore, the “scope” of the search, under the Scalia doctrine, might well now extend to the trunk. Under the Belton doctrine, officers could not search the trunk – only the passenger compartment. But there is no reason why the Scalia doctrine should be so limited.[15]

2. Will the Gant doctrine be extended to premises and other areas?
Defense counsel will want to expand the Gant doctrine to situations not involving vehicles. In all likelihood, Arizona courts will rule that, once an officer handcuffs an arrestee in his / her home, officers will not be permitted to search pursuant to the search incident to arrest doctrine, except possibly under the Scalia doctrine (looking for evidence related to the arrest as discussed above).

3. Will officers be able to search if there are uncuffed occupants?
Most attorneys have long forgotten that Miranda was a 5-4 decision. So was Gant. (Most attorneys have already forgotten that too.)

So what did the dissenters say? Alito, writing the dissenting opinion, mentioned something in the last footnote that might prove salient:

“I do not understand the Court's decision to reach the following situations. First, it is not uncommon for an officer to arrest some but not all of the occupants of a vehicle. The Court's decision in this case does not address the question whether in such a situation a search of the passenger compartment may be justified on the ground that the occupants who are not arrested could gain access to the car and retrieve a weapon or destroy evidence. Second, there may be situations in which an arresting officer has cause to fear that persons who were not passengers in the car might attempt to retrieve a weapon or evidence from the car while the officer is still on the scene. The decision in this case, as I understand it, does not address that situation either.”

Conclusion
So is Gant the most important criminal procedure case since Miranda?

A strong argument could be made that, as it relates to law enforcement, it might well be. Only time will tell.

There is only one thing that is certain about Gant -- and that is the holding. Around the country, the vast majority of courts had interpreted Belton to mean that officers could always search passenger compartments incident to arrest, even after the arrestee had been handcuffed and placed in the back seat of the patrol car. Those states will be required to revise their case law to comply with Gant.[16]

Will officers now leave arrestees un-cuffed while they search vehicles in order to comply with Gant and Belton? Probably. Will officers be injured – or even die – in the process?

Well, at least the courts (and officers) know now the search incident to arrest rule is anchored to a rationale, at least for the time being….



[1] In many states. officers were permitted to search even locked containers in the passenger compartment under this theory. See, e.g., People v Dieppa, 830 NE2d 870 (Il. App. 2005), where the court held that, although the arrestee was handcuffed and secured in the patrol car, officers could search a locked glove box in the arrestee’s vehicle.
[2] 395 U.S. 752 (1969)
[3] 453 U.S. 454 (1981)
[4] 306 Ill. App.3d 941, 715 N.E.2d 689 (1999)
[5] 216 Ariz. 1, 162 P.3d 640 (2007)
[6] See e.g. Chambers v Maroney, 399 U.S. 42 (1970)
[7] See e.g. Coolidge v New Hampshire, 403 U.S. 443 (1971)
[8] See e.g. Schneckloth v Bustamonte, 412 U.S. 218 (1973)
[9]See e.g. Michigan v Long, 463 U.S. 1032 (1983)
[10] The exigency / emergency doctrine has more or less been supplanted by the automobile exception. See Texas v White, 423 U.S. 67 (1975)
[11] See e.g. Florida v Wells, 495 U.U. 1 (1990)
[12] These searches are very limited in number. See e.g. New York v Class, 465 U.S. 106 where the Court held that warrantless VIN searches were justified during traffic stops.
[13] Thornton v United States, 541 U.S 615, 124 S.Ct. 2127 (2004)
[14] After the Chimel decision forty years ago, no one, except Scalia, to the knowledge of the authors, has proposed that evidence of a crime could be subject of a search without probable cause (or in the case of a weapon, reasonable suspicion). So this will be a new doctrine that Arizona courts will have to wrestle with to work out the contours. Stevens, in his majority opinion, described the level of proof as “might” be and “likelihood” that crime-related evidence would be there. Arizona v Gant, 129 S.Ct. at ___. Although this issue is somewhat beyond the scope of this brief article, it is a question which probably will arise early in the case law. Possibly the courts should choose “reasonable suspicion” as the standard of proof even though that standard has already been rejected by the Supreme Court as a “legal thicket” in Arizona v Hicks, 480 U.S. 385 (1978). Determining the parameters of this doctrine might be somewhat like punching the proverbial tar baby, so for purposes of this article, suffice it to say this will, in all “likelihood,” be an issue.
[15] Again, if the rationale for the Scalia doctrine is that there might be evidence related to arrest in the vehicle, why should the scope be limited to passenger compartment? In Belton, the United States Supreme court stated that the trunk was off-limits during a search incident to arrest as there was almost no possibility that the officer could access the trunk.
[16] That includes Illinois which had numerous cases expanding the Belton doctrine to include searches of the passenger compartment and even locked containers after the arrestee had been handcuffed.

GANT - My final article for AZ Officers

Is GANT the Biggest Case Since MIRANDA?

Who knows?

We do know that the MIRANDA case rose out of Phoenix – and now we have the GANT case arising out of Tucson.

MIRANDA is the biggest 5th Amendment case of all time.
GANT might well be the biggest 4th Amendment case.

WHY?
For 28 years officers had a “free” search of the passenger compartment of vehicles after they had conducted the lawful custodial arrest of an occupant of the vehicle. No more.
First, why do I say the search was free? All searches must have a reason / a rationale. The search incident to arrest doctrine as applied to vehicles had over the last 28-year period lost its “reason.” The when, where and why of the doctrine had come totally “unanchored.”

CHIMEL V CALIFORNIA (1969) held that officers could search incident to arrest only those areas within lunging distance of the arrestee. This is to secure weapons and items which the arrestee may lunge to.

NEW YORK V BELTON (1981) created a “bright-line” rule when it came to searches incident to arrest in vehicles, i.e., officers could always search the passenger compartment of a vehicle, and closed containers therein, incident to the valid custodial arrest of an occupant of the vehicle.
Most state courts, including in Arizona, interpreted this to mean that officers could search the passenger compartment whether the arrestee was handcuffed or not. But the Supreme Court had never decided this specific issue – at least until Arizona v Gant.

ARIZONA V GANT (2009) In Gant, officers arrested Gant as he got out of his vehicle based on an arrest warrant for a suspended license. The officers then handcuffed Gant and searched the passenger compartment of his car, finding a weapon and drugs.
The U.S. Supreme Court held that the car may not be searched incident to arrest after the arrestee has been handcuffed as at that point there is little chance that the arrestee can get to a weapon or evidence.

There is a bit of ancillary news that may be important – good and bad. First the good….

THE GOOD NEWS
There might be a (small) silver lining here. The majority opinion stated that although officers cannot search incident to arrest automatically any more after the arrestee has been handcuffed, officers may search for evidence related to the arrest – even after the arrestee is cuffed. I call this the “Scalia doctrine” as it was he who proposed this approach to the search incident doctrine a long time ago. An example would be that if the arrestee is arrested on an arrest warrant for drugs, the officers may search the vehicle for drugs. It will be the burden of the officer to explain how the evidence searched for in the vehicle is related to the arrest.
Furthermore, the “scope” of the search might now include the trunk. Under the Belton doctrine, officers could not search the trunk. But there is no reason why the Scalia doctrine would be so limited. Let me add an important caveat -- until this doctrine is accepted by the courts officers should seek consent and fill out an inventory form whenever they search a passenger compartment or trunk.

Another suggestion, mentioned by the dissenting opinion, is that officers may be able to search under the BELTON doctrine if there are un-arrested, un-cuffed occupants of the vehicle who might be able to access the vehicle after the arrest of one of the occupants who is cuffed.

Finally, all of the other doctrines for searching a vehicle are still alive and kicking – Those theories are:
Probable cause (auto exception)
Probable cause (warrant)
Consent
TERRY
Emergency / Exigency
Inventory
Other miscellaneous doctrines

THE BAD NEWS
And now a bit of (additional) bad news -- defense attorneys will try to expand the GANT doctrine to every situation imaginable – and they will probably be successful. There is little doubt that once you handcuff an arrestee in his / her home you will not be permitted to search under search incident to arrest doctrine, except the person of the arrestee and possibly under the Scalia doctrine (looking for evidence related to the arrest as explained above) -- as there is no reason to believe an arrestee can access a weapon or evidence in his home any more than in his vehicle after he is cuffed. Again, always try to get more than one theory for the prosecutor, e.g. consent.

CONCLUSION
Frankly, the doctrine is brand new – the only thing we know for sure about GANT is that officers may not search under the old Belton rule any more once the arrestee is handcuffed.

Best -

DA

Searching cars in parking lots and obtaining statements

Defendant goes into Meijer where she places two items inside of her cart. Defendant then goes to pharmacy counter where she tries to pass a fraudulent prescription and is told by the pharmacist that the DEA number for the physician is the wrong number. The pharmacist then hands the defendant the prescription back and the defendant attempts to leave the store. In the process of leaving the defendant loses the prescription slip and it is never found by anyone. In the meantime loss prevention stops the defendant and we take her into custody for retail theft. At no point between leaving the pharmacy counter being taken into custody by myself did the defendant actually get outside of the store, let alone get into her car. Upon my arrival on scene loss prevention officer informed me that he thought there may have been a fake script passed at the pharmacy counter. After taking the defendant into custody I leave the scene to take defendant to the station and begin the processing. In the meantime another officer as well as the Sgt. are on scene. The Sgt. located the defendants car and observed a folded up piece of paper that "looked" like a prescription card but ended up being a raffle ticket. The Sgt. also stated that he smelled marijuana while outside of the car. As a result of that the Sgt. opened up the car and began to search it. While searching the car located were approximately 30 prescription cards filled out with other peoples names on it with a forged doctor's signature. Also located were several pill bottles with the names of other people on them and a prescription pad with 35 empty prescription slips.My questions is: did we have the right to search the car? I do not feel that we did. My theory is that we should have approached Meijer about having the car towed from their lot. While we are processing the defendant and the car is being towed we should have gotten a search warrant for the vehicle. I am under the impression that unless the car is specifically used in the commission of the crime we do not have the ability power to search it anymore.

Answer -- The only time you need a warrant on a probable cause search is when it is parked on the defendant's driveway -- or if you have impounded it for a while.

Question -- Now, when I spoke with the SA they would only approve the charge of the prescription pad which was seized out of the car based on the forged prescription (that was never located) which was given to the pharmacist. I'm not sure where this will go because it all seems like a "fruit of the poisonous tree" to me. I just wanted your opinion based on the facts that I gave you whether we had the right power to get into the car or not.

Answer -- It's harder to win on the probable cause theory alone -- but I think you will.

I really think you have the best idea -- ask the store manager if they want the car removed -- and then do it and fill out an inventory form (if that is ok under your dept policies.)

Also, ask consent from the defendant -- did you do that? (It just helps to have one more theory)

My second question is: When a suspect says, "I think I want my attorney" does that signify them envoking their rights and us not being able to talk to them anymore. And when a person says that do we have the right to try to talk them out of it?

Answer -- That would appear to be an "equivocal assertion."
See DAVIS V US (on about page 532 in my book) where the suspect said "Maybe I should talk to a lawyer" -- and see the other cases in that section.

Best -

DA

Q - I found evidence in a purse in a car - can I search for more?

Question

Let me give you a scenerio I had the other night about which I was questioned by supervisors.

I stopped a car and upon contact smelled what I thought to be meth, the chemical smell. I identified the passenger and it turned out she had two warrants. Before placing her in the back of my car, I asked her why the car smelled that way. I asked her if there was anything illegal that belonged to her inside the car. When I got to drug paraphernalia she told me there was some in her bag.

I found it in her bag and read Miranda before any further questions. I was going to search the rest of the car and the two guys with me said I needed consent to do that.

I figured based on the odor plus the found paraphernalia, and there was a small amount of meth as well, that the entire car was mine to search. Based on the plain smell and finding of physical paraphernalia and dope and my experience.

Am I wrong?? None of the cases regarding vehicles that I could find in your book told me different than what I wanted to do.

Thanks again for all the input you provide.

Answer

Let me ask a threshold question --

Before you asked the passenger about the drugs, was she in custody? If so, did you Mirandize her? From what you said above, I got the impression that you didn't Mirandize her until after she had admitted that she had contraband -- if so, the stuff in her purse is not admissible as that is nothing but the fruit of the poison tree.

Let's assume the evidence in the purse is admissible because either the passenger was not in custody or you had previously given her her Miranda warnings.

Different courts go different ways on this issue -- the issue of PC to believe there is more crime-related evidence in the vehicle. The question you would have to answer in court is --"Why would you think there is more evidence in the vehicle, just because you found evidence in a passenger's purse?" Against a good defense attorney -- unless you can testify that the meth smell was too powerful to just be from the purse, you will probably have trouble answering that one.

Here is what I always used to ask officers to do in this situation (and a couple other suggestions):
a. Ask for consent from the driver and / or owner.

b. Figure out if there is a way that the car can be lawfully impounded. In AZ is a vehicle subject to forfeiture if there are drugs in it? I'm not sure what the rule is any more. If that is true, fill out an inventory form.

c. Explain to the prosecutor that the GANT case says that the vehicle may be searched incident to arrest FOR EVIDENCE RELATED TO THE ARREST. That is a very important new theory that needs to be tested in AZ (and everywhere else)! This would be a good case for it. Here the arrest was for drugs -- so the car may be searched for drugs -- (including the trunk I believe)

d. The GANT case (dissent) also suggested that a search incident should be ok if there are UNHANDCUFFED OCCUPANTS still around the vehicle who might have access to the passenger compartment. (Were there?)

In other words, always try to give the prosecutor 2 or 3 or 4 or 5 theories to throw at the wall -- and one is likely to stick. Remember all you need is ONE to stick.

Best --

DA

inventory searches

After Gant, a lot of departments are thinking that they need to clean up their inventory search rules.

That may be true -- and I will get to that later.

One problem is that departments do not have rules consistent with the constitution and case law related to the taking custody of vehicles. Many inventory policies are left over from the '50's.

Secondly, what ever the departmental rules are, every officer in the department must do it -- search -- the same -- every time. E.g if one officer inventories by looking under the spare tire, every officer must do it -- and do it every time. Otherwise it is NOT an inventory search.

More later on this.

Best --

DA

Traffic Stops Seminars for the Fall

I have been asked by NEMRT to present 3 seminars where I will discuss the legal aspects of traffic stops.

These will be presented from 6 p.m to 10 p.m.

August 24 Crystal Lake PD -- 6 p.m. to 10 p.m.

August 31 Downers Grove PD -- 6 p.m. to 10 p.m.

September 14 Westchester PD -- 6 p.m. to 10 p.m.

Best -

DA

Fall Seminar Schedule

Here is my seminar schedule for the fall.

Most of them are offered under the auspices of NEMRT (MTU 3)

Check them out at the NEMRT Website.

August 25-27 Search and Seizure for Patrol: Gurnee PD

September 1-3 Search and Seizure for Patrol: Batavia PD

September 8-10 Search and Seizure for Drug Enforcement Officers: Tinley Park PD

September 14 Traffic Stops: Westchester PD (6-10 p.m.)

September 15-17 Search and Seizure for Patrol: LaGrange PD

September 22 Legal Issues Related to the Taking of Statements: Estelle Lieb CC, Norridge

September 24 Civil Liability: Winnetka PD

September 29-October 1 Search and Seizure for Supervisors: Channahon PD

October 5-7 Search and Seizure for Drug Enforcement Officers: Lake Zurick PD

October 21 Civil Liability / Section 1983: MTU 5, Ottawa, LaSalle Co Sheriffs Office

October 22 Legal Issues Related to the Taking of Statements: MTU 5, LaSalle Co Sheriffs Office

October 26-29 Search and Seizure for Patrol: Niles PD

October 30 Recent Case Law: St Charles PD

If you want to buy a law book

I have included the case below, Montejo, in my final draft of the Illinois and Arizona Legal Source Books. The opinion was just announced -- but this is the last case I am going to include in the books.

The Arizona and Illinois books will be going to print in the next week or two -- no matter what.

Thanks for your patience.

I know a number of you have asked about them.

From now on, I am going to wait until the USSC recess to publish the book for the new year, that way I can be sure to include every important case from that years term.

So the next books will in all likelihood be published next year in the summer.

If you have any specific questions, please contact me at DAA2000@aol.com

Best -

DA

MONTEJO V LOUISIANA

I have only read this case a couple of times, but the holding seems to be that a criminal defendant asserts his 6th Amendment right to an attorney by saying so with his own mouth.

In MONTEJO, the defendant did not assert his rights at the initial appearance. Later, a detective obtained a waiver and got a statement from Montejo.

The USSC ruled that the statement was admissible as Montejo never asserted his rights at the initial appearance.

All defense attorneys in the country, worth their salt, will now make sure that their clients assert their 6th amendment rights themselves at the initial appearance.

But a more subtle fact about this holding is that when an arrest warrant is issued, the arrestee's 6th Amendment rights do not attach -- unless he asserts them. And how can he assert them, when he doesn't even know the arrest warrant has issued against him?

Obviously, an arrestee waives his 6th Amendment rights the same way he waives his 5th Amendment rights -- just read him his rights from your MIRANDA card.

If anyone reading this has access to Cook Co States Attorneys, I would like for you to propose that this case rebuts the notion at the Cook Co States Attorney's Office that officers cannot take statements after an arrest warrant has been issued.

Best --

DA