Can a Vehicle Search Incident to Arrest Include the Trunk?

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In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court ruled that a motor vehicle may be searched incident to the arrest of a recent occupant “only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The second justification for a vehicle search under Gant was new, and the Court stated with little explanation that it was based on “circumstances unique to the vehicle context.” But just how far does search authority under that exception extend?

First Gant exception limited to passenger compartment. As a preliminary matter, a vehicle search incident to arrest that is based on the arrestee’s proximity to the vehicle is pretty clearly limited to the passenger compartment. The Gant opinion refers to the arrestee being “within reaching distance of the passenger compartment.” Furthermore, such a search is justified because of the risk that the arrestee could grab a weapon or destructible evidence. That risk is substantial with respect to the passenger compartment of a vehicle, which is normally quickly accessible from the outside. The risk is less with respect to the trunk, which is typically inaccessible from the outside.

Analyzing the second Gant exception. But what about a vehicle search incident to arrest that is based on reason to believe that evidence of the offense of arrest is in the vehicle? For example, if an officer arrests a vehicle occupant for a drug offense, the officer might reasonably believe that the vehicle contains additional evidence of drug activity. Such evidence could as easily be in the trunk as in the passenger compartment. May the officer search the trunk of the vehicle?

Probably not, though I don’t think the issue is completely settled. In the portion of the Gant opinion dealing with the second exception, the Court states that “in [certain cases], the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” Of course, saying that an officer may search the passenger compartment isn’t quite the same thing as saying that an officer may not search the trunk. But the reference to the passenger compartment is consistent with the pre-Gant understanding that vehicle searches incident to arrest were limited to the passenger compartment, not the trunk. And among cases to have considered the issue, a majority have ruled that the second Gant exception does not support a search of the trunk. See Robinson v. State, 754 S.E.2d 862 (S.C. 2014) (suggesting in a footnote that Gant did not extend the permissible scope of a search incident to arrest beyond the passenger compartment of a vehicle; applying Gant’s “reasonable to believe prong” and finding that a trunk “would normally be excluded from the permissible scope of the search [incident to arrest],” but that the trunk search at issue was permissible because the particular trunk was freely accessible from the backseat); People v. Coates, 266 P.3d 397 (Colo. 2011) (concluding that Gant did not “expand the applicability of the search-incident-to-arrest doctrine in the vehicle context to include areas beyond the passenger compartment of the vehicle”); Smith v. Kenny, 678 F. Supp. 2d 1124 (D.N.M. 2009) (though not essential to the holding, the court noted in a post-Gant case that “a search incident to an arrest would not allow the officers to search the car’s trunk”). But see State v. Stewart, 807 N.W.2d 15 (Wis. Ct. App. 2011) (relying on Gant’s “reasonable to believe” prong, the court found with little discussion that a search of a trunk was a valid search incident to arrest where defendant was lawfully under arrest for cocaine possession). I can imagine an argument that the second Gant exception should not be limited to the passenger compartment because evidence may be found in the trunk, and because the trunk shares a reduced expectation of privacy with the rest of the vehicle. But the state of the law is such that an argument along those lines would face an uphill battle.

Other justifications for trunk searches. As a practical matter, when there is “reason to believe” that the vehicle contains evidence of crime, there will often also be probable cause that the vehicle contains evidence of a crime. And when there is probable cause, the entire vehicle, including the trunk, may be searched without a warrant under the vehicle exception to the warrant requirement. Other justifications for a warrantless search of the trunk, in appropriate cases, include consent and an inventory search.

Back to the Court? I imagine that the Court will clarify the second Gant exception at some point. It created the exception out of whole cloth and offered little explanation of its justification or scope. A case involving a trunk search incident to arrest would be a prime fact pattern for the Court to consider.

8 comments on “Can a Vehicle Search Incident to Arrest Include the Trunk?

  1. Is there an exception if you have a trunk monkey? http://youtu.be/AI2FIFY2Z6U

  2. As a police officer, I made it a habit to “inventory” the vehicle contents, to include the trunk for two main reasons: First, evidence, or fruits of a crime related or unrelated, could be contained therein, and secondly, for liability issues involved. I can’t tell you the number of times an officer was accused of stealing property the suspect (or other subjects involved in the stop either directly or indirectly) claimed was in the trunk of the car, some supposedly worth ridiculous amounts of money everyone knew was not true. Or, how about a missing person, et cetera? So, if an officer effects an arrest he/she should search (inventory) the entire car to include ANY location that can be utilized to store property prior to towing, seizing, or impounding said vehicle.

    • So you are admitting that an ” inventory ” is just an excuse to search for evidence , just because it ” could ‘ be there. How many times have you found a missing person in a truck you opened? Never, I am sure. Just because some few people might accuse the police, tow company or impound yard of theft is not a reason to give blanket permission to search an entire vehicle and eviserate the warrant requirement. Like ,ost all warrantless searches, it is just a fishing expedition, without Rd or PC.

      If an officer wants to search just to see if ” evidence unrelated ” may be there, then they have an incentive to arrest and tow even when not needed just to get around the law. Gant was decided because officers used the excuse of an arrest to search without RS hoping to find evidence they had no inkling existed. If it were up to you, no doubt, we would have zero 4th amendment rights and you could search anyone at anytime just in case…a loss of rights we cannot afford and remain a free people. How many people have sat on the side of a hot highway for hours while a cop used a coerced consent search to hunt for possible evidence? How many citizens have been dragged through the same routine after a false dog alert caused by a dog handler determined to get PC for a search?

      An ” inventory ‘ search is nothing more than a way to get around court decisions limiting searches without RS or PC..and your ” habit ‘ of doing so demeans the law and our rights. The difference between us and nations with no limits on police conduct is that we cherish privacy and insist on at least some reasonable cause to invade the privacy of people and their effects..your attitude will cause us to become just another totalitarian state..shame on you..see the big picture, not just what might get you another bust.

    • Dennis, this is the flimsiest excuse I’ve ever heard from a police officer to break the law; and Constitutional Case Law at that. It’s almost like y’all are trained by DAs to break the law in order to get convictions with the judge’s approval. Come on, man, get smart.

  3. Ah, Officer Y, if the contents of the trunk are not within reachable distance one stands a good chance of getting that search bounced out of court

    9 times out of 10 usually ppl are up to no good at all, still it would be a pity to see an actual villain walk away due to a bad search.

    And it should be pointed out that a locked item in a trunk is a real grey area

  4. The Gant decision placed an undue hardship on law enforcement in various ways. Now all vehicles are subject to impounding which then costs valuable resources that the offender in turn will have to pay to get it back. Second, if puts an undue ethical burden on officers to justify a trunk search which increases the likelihood of perjury. Lastly, it places the officer in a predicament of being sued if the vehicle is left legally parked at the scene or released to a licensed driver chosen by the offender and there is in fact, contraband or evidence in the trunk which is then in turn lost, sold or otherwise used in another crime and it is traced back to the original arrest. I do not believe the Supreme Court realized the ramifications of their decision and I am glad I am now retired and do not have to deal with their stupidity!

    • Undue burden? The police brought this on themselves..one cannot count how many times an officer effected an arrest for some reason, valid or not, just to gain the ability to search without a warrant. If a driver refuses a ” consent search” you can bet that the vast majority of cops will come up with some excuse, often manufactured ( like a dog ” alert ” to stymie a consent refusal.Hunches and ‘ inchoate suspicions ” seem to be enough for most police officers to initiate a search, just in case some contraband might be there..hardly reasonable in any way.

      If shredding the 4th Amendment is Ok with police so that they can go on a fishing expedition for possible evidence, then that says a lot about the mindset of the police. Hoe many cops will say ” OK, no problem, I will leave ” when refused a consent request? Not many..most all will find some way to defeat the rights patriots have shed blood for..it is an insult to the memory of all fallen patriots throughout history to disregard the law in order to get another drug bust. If the police cannot ” do their jobs ” without tramping on our rights, then maybe they need to redefine the definition of what their jobs really are. Since the police commonly push the limits of the laws in order to get ever more busts, only court decisions limiting their discretion protect us from a police state.

      The police would love nothing more than unlimited authority to search, ” just in case ” some evidence could be found..apparently most cops have a sneering disregard for the foundational freedoms that differentiate us from a totalitarian state, and that is reason enough to deny them unfettered access to our property. Remember Bumper v. NC? Cops would simply claim they had a warrant gain entrance to a home, lying through their teeth, and expect anything found to be upheld in court. ‘ Warrant..? we don’t need no stinking warrant!”. Since the police cannot be trusted to self regulate, the courts must do so. Dangerous dogs should be on a leash..running free they endagre all of us. Trust the police to uphold the spirit of our rights? Not on your life..by the way, I am glad you are retired too..maybe future generations of cops will learn that sidestepping the law does not make them effective, just dangerous to us all.

      • Funny thing is, when cops retire they dont want their rights trampled on, look at how many retired cops raise hell when they get pulled over.

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