Wednesday, November 11, 2009

Arizona v. Gant Defeated by Inventory Searches

On April 21, 2009 the United States Supreme Court, in a very interesting 4-1-4 vote, put some teeth back into the 4th amendment. The 4th amendment was designed to protect citizens from unreasonable searches and seizures. Most of my work in the criminal defense business interweaves with the 4th amendment.

Prior to last week's decision, if you were pulled over for a traffic violation and arrested for anything, including something minor, such as driving on a suspended license, the cops could search your car and any containers in it. Defense attorneys argued these types of searches were an end run around the 4th amendment. And now the Supreme Court agrees in Arizona v. Gant. Curiously,
Gant didn't really change the law but rather informed lower courts that New York v. Belton has been misinterpreted since it was decided in 1981.

Belton clearly held the interior of a vehicle could only be searched incident to arrest if it could still be accessed by the people removed from the vehicle. Belton built on Chimel v. California, which held that warrantless searches "incident to arrest" are limited to the area within the immediate control of the suspect. Belton was simply the vehicle version of Chimel since the latter dealt with the suspect's home.

Now that
Gant restated Belton, once the occupants of the vehicle are removed and can no longer access the inside of the vehicle it cannot be searched without a warrant or consent.....unless the cops are looking for further evidence of the crime for which the occupant(s) was/were arrested or some other reason that gets around the warrant requirement (there are not too many).

On a side note, I spoke to one judge at 26th & California in chambers after
Gant was decided. He told me that he had been reading Belton correctly all along and the holding of Gant was nothing least to him.

What this means is the police can't search your car if you're arrested for a traffic violation or driving on a suspended or revoked license. A DUI arrest is questionable because the officer could claim he was searching the vehicle for evidence of alcohol consumption such as empty beer cans. I imagine these type searches will be hotly contested in the years to come.

Gant, however, is limited in scope because it only deals with vehicle searches incident to arrest. Warrantless searches of vehicles are per se unreasonable, but there are exceptions. The first one being a search incident to arrest, which Belton and Gant addressed.

An inventory search also gets around the warrant requirement. In Illinois, inventory searches are a judicially created exception to the warrant requirement. And I predict they will completely neuter
Belton and Gant.

An inventory search is done pursuant to impound. The policy is to protect the police department and vehicle owner against claims of lost property inside the vehicle. But it really just gives police the authority to search the entire vehicle, including the trunk.

Chicago police can impound a vehicle whenever the driver is arrested or if contraband is found in the car. It also costs about $1,200 to get a car out of the city of Chicago impound lot. Often the car is ripped up due to an extensive search. I know of vehicles impounded because a backseat passenger had a gram of marijuana. Ouch.

In order to get around
Belton and Gant, the police just need a reason to impound the car. Review my earlier example of driving with no license. If arrested for this offense, the vehicle cannot be searched incident to such an arrest, but it can be searched if it's going to be towed to the impound lot.

But it's not that simple. At a suppression hearing to exclude evidence found during an inventory search, the police officer has to be able to clearly articulate their department's impound policy. There is also case law that holds the officer has to follow the policy or the impound is not valid, thus any contraband found will be suppressed.

If you're a defense attorney conducting a suppression hearing involving a vehicle search, know what type of search you're dealing with. If it's a search incident to arrest, know
Belton and Gant. If it's an Illinois case, you can also offer People v. Bridgewater in support of your motion.

But if you're dealing with an inventory search, know the applicable case law. Here are some Illinois cases which you should read: People v. Hundley, 156 Ill. 2d 135 (1993), People v. Ursini, 245 Ill. App. 3d 480 (2nd Dist. 1993), and People v. Alewelt, 217 Ill. App. 3d 578 (3rd Dist. 1991).

Remember, the police officer must be following the department's policy in order for the impound to be valid. If the impound is not valid, the evidence found during the inventory search should be suppressed.


1 comment:

  1. I recently had a situation where someone with a suspended license was arrested and, subsequently, the police conducted a illegal search under Gant of his glove box. This article was very helpful to me as an attorney in my research and led me to write my own article. Thanks for writing this!


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