Online Exclusive

Search Incident to Arrest

Those of us who have been in law enforcement for some time remember the phrase, ‘search incident to arrest’.  Now those words barely exist.  Several United States Supreme Court rulings have had a major impact on how law officers use the fourth amendment.

One recent case that impacted law enforcement nationwide was Arizona v. Gant.  This case involved Rodney Gant who was arrested by police and charged with driving on a suspended driver’s license.  When officers arrested him he was in a yard after he parked his vehicle and walked away.  Officers secured Gant in a patrol car and then searched the vehicle he drove up in.  Officers found a weapon and narcotics.  Gant was charged with possession of a narcotic for sale and possession of drug paraphernalia. 

This case now has shaped the way that every arrest throughout the United States is conducted.  What this particular case decision has done is hurt law enforcement’s effort to battle drug dealers and users.  It has not prevented us from making good drug arrests; it just raised the bar for law enforcement.  It’s merely something that we must overcome and for the most part the law enforcement community will and already has.

The United States Supreme Court ruling in Arizona v. Gant was effectively this; police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offence of arrest.  In a concurring opinion from Justice Scalia he wrote, “In my view we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases.  I would hold that a vehicle search incident to arrest is ipso facto ‘reasonable’ only when the object of the search is evidence for which the arrest was made, or of another crime that the officer has probable cause to believe occurred.”

If that isn’t confusing and left wide open to interpretation for lawyers and police officers, Justice Alito who dissented stated that in part the court has effectively overruled New York v. Belton and Thornton v. United States.  This case was decided on a 5 to 4 split. 

In Arizona v. Gant the law as applied is meant to mean that:

  • Belton does not authorize a vehicle’s search incident to arrest after the arrest after the arrestee has been secured and cannot access the interior of the vehicle.
  • Circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offence of arrest might be found in the vehicle.

So what does that mean?  This case, while sharply divided in the court, will most likely come back around.  It has handed a tremendous victory to the drug dealers and users, but that doesn’t mean we’ve lost.  What we have to do is become more proficient and faster at articulating our probable cause and utilizing the tools already in place.

There are some areas we can work on to help us establish our probable cause and reasons to get into the vehicle using the vehicle search warrant exception.  Some of these areas to be explored may require the law officer to change or switch up the way he or she conducts the traffic stop.  Those areas are:

  • Approach the vehicle a few minutes after the stop to observe and passenger or driver movement from inside the vehicle.  You may be able to see a tucking motion if the occupants believe you are still in your cruiser
  • Approach the vehicle on the passenger side.  For officer safety and strategic considerations, at night walk behind your cruiser so you don’t cut the spot lamp and give away your position.  When you are at the passenger door you will be surprised at the things you can observe.  While there observe for a few seconds before making contact.  Use the stealth of your approach to your advantage.   
  • Have a canine available to assist you.  In Illinois v. Caballes the United States Supreme Court has held that you do not need to meet any burden of proof to use a properly trained police canine to conduct an exterior sniff of the vehicle as long as the time for the canine team to respond is a reasonable amount of time.  Remember, a canine sniffing an exterior motor vehicle does not constitute a violation of the fourth amendment.  Use your canine teams and if questions arise contact them.

With the laws related to drug enforcement ever changing, powers of law enforcement have been stripped or reduced.  It’s important that we think outside of the box and formulate lawful solutions to the situations at hand.  Like them or not, they are not for us to judge but merely interpret, sometimes in seconds.  It will take legal scholars years to determine if our actions were appropriate.  Follow the law; it’s who we are and it is where we draw our integrity.  As always, please check with your local prosecutors and follow their established protocols.  Good luck and stay safe!


About The Author:

Chris Watkins started his law enforcement career as a police officer in our Nation’s Capital before moving his family west. In DC he worked with the Major Narcotics Unit as well as performing undercover assignments in the Street Robbery Unit. In his new location he was assigned to the Street Crimes Unit with the majority of his duties encompassing narcotics investigations and doing more undercover work. Currently he’s assigned as a K-9 handler for his agency. He’s an active member of the USPCA, FOP and FAAM.