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June 30, 2009
Ex Post Handcuffs, Take 2: Sixth Circuit Opinion Also Shows Immediate Impact Of Arizona v. Gant
Yesterday, I did a post about the immediate impact of the United States Supreme Court's recent opinion in Arizona v. Gant, 129 S.Ct. 1710 (2009), and its holding that officers cannot search the passenger compartment of an arrestee's vehicle incident to the arrest "after the arrestee has been secured and cannot access the interior of the vehicle." In that post, I cited the Eighth Circuit's opinion in United States v. Hraskey, 2009 WL 1606642 (8th Cir. 2009), as "[t]he first o[pinion] that I have seen at the federal appellate level" striking down such a search in the wake of Arizona v. Gant. Well, after a little more searching, I actually came across the Sixth Circuit's opinion in United States v. Lopez, 2009 WL 1507294 (6th Cir. 2009), which did the same about a week earlier.
On September 27, 2006, Kentucky State Police Trooper Tommy Cromer clocked [Juan] Lopez driving 106 miles per hour on I-75 in Rockcastle County, Kentucky. Cromer gave chase and eventually arrested Lopez for reckless driving. After securing Lopez in the back of the patrol car, Cromer searched the passenger area of Lopez's car. Under the driver's seat, Cromer found a brake-shoe box containing 73 grams of crack cocaine, a set of digital scales, and a Glock .40 caliber handgun loaded with ten rounds of ammunition.
Under the way basically all federal courts had interpreted the Supreme Court's opinion(s) in New York v. Belton, 453 U.S. 454 (1981), this search would have been constitutional because they read New York v. Belton as holding that "the interior of a car is always within the immediate control of an arrestee who has recently been in the car," making it searchable as an incident to the arrestee's lawful arrest.
Of course, that all changed with the Supreme Court's recent opinion in Arizona v. Gant. And indeed, after citing the language Gant included in the introduction to this post, the Sixth Circuit held that
That standard is not met here. Lopez was not within reaching distance of his vehicle's passenger compartment at the time of the search, but was instead handcuffed in the back seat of the patrol car by then. There was no reason to think that the vehicle contained evidence of the offense of arrest, since that offense was reckless driving. The search of Lopez's vehicle, therefore, violated the Fourth Amendment as interpreted in Gant.
June 30, 2009 | Permalink
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Say Lopez was arrested for reckless driving (maybe he didn't have any ID on him) and his car impounded until he was released. Wouldn't the police be allowed to perform an inventory check of the car? If they then found the box of cocaine and weapon under the driver's seat, could that be the basis of additional charges?
Posted by: Paula | Jul 1, 2009 8:25:42 PM
Police can still perform searches of impounded vehicles pursuant to the guidelines set forth in South Dakota v. Opperman, 428 U.S. 364 (1976). This is why I think that Gant may actually have a bigger impact on home searches incident to lawful arrests than it has on automobile searches incident to lawful arrests.
Posted by: Colin Miller | Jul 2, 2009 6:44:49 AM
I don't think the news of the Gant decision has reached the New Castle County (Delaware) police -- see article in today's paper, Drug charges follow seat belt stop:
The article doesn't specifically say so, but it appears that the drugs were found under the driver's seat after the men were out of the car and before the car was subject to an inventory search. I expect to see this one on appeal, x3.
I'm looking forward to your upcoming article -- this blog helps me a lot in understanding evidentiary issues, which are not always clearly defined or properly cited in opening briefs (so we in the appeals unit must try to clarify the appellants' arguments before arguing against them).
Posted by: Paula | Jul 3, 2009 7:39:44 AM
I am working on this issue here in Michigan. I have a motion for reconsideration pending on a suppression motion in light of Gant. I heard that some prosecutors in our state are arguing good faith where the search predates Gant.
Posted by: Stacia | Jul 30, 2009 4:46:26 PM
I am one of the attorneys on the Lopez case. Believe it or not, the inevitable discovery argument was waived. However, after the appeal, the U.S. is now claiming it can still introduce evidence of the drugs by now having an evidentiary hearing on the good faith exception of U.S. v. Leon. We will be back in the 6th Circuit soon.
Posted by: Scott Foster | Aug 6, 2009 10:34:14 PM