Coming Mbacke to an Old Topic: Vehicle Searches Incident to Arrest

The Supreme Court of North Carolina recently decided State v. Mbacke, an important case about searches incident to arrest. I mentioned Mbacke briefly in this prior post, which noted that the court of appeals’ decision in the case was impossible to reconcile with the same court’s decision in the similar case of State v. Foy.

Here’s the short version of the facts of Mbacke. One afternoon, a Winston-Salem resident called 911 and reported that “a black male who was armed with a black handgun, wearing a yellow shirt, and driving a red Ford Escape was parked in his driveway.” The caller also stated that the man with the gun had “shot up” the caller’s house the night before. Officers responded, and found the defendant – who matched the caller’s description – attempting to back his Ford Escape out of the caller’s driveway. The officers blocked the defendant’s egress, drew their weapons, and ordered him out of his vehicle. He complied, somewhat slowly, and shut the SUV’s door as he exited. The officers handcuffed him, placed  him on the ground, and located a gun in his waistband. They then arrested him for carrying a concealed weapon. They searched the defendant’s vehicle incident to the arrest, and found a one-kilogram brick of cocaine. The defendant was charged with various drug offenses.

The officers’ search of the vehicle took place at a time when settled law allowed the search of a vehicle incident to the arrest of any recent occupant. Accordingly, the defendant’s pretrial motion to suppress the cocaine was denied. But on the day that the case was called for trial, the United States Supreme Court decided Arizona v. Gant, 556 U.S. 332 (2009). I’ve blogged quite a bit about that case, the basics of which I discussed here. In essence, the Court held that a vehicle may be searched incident to an occupant’s arrest only when the arrestee is “unsecured and within reaching distance of the passenger compartment at the time of the search,” or when it is “reasonable to believe” that evidence of the crime of arrest may be found in the vehicle. The defendant in Mbacke and the trial judge essentially agreed to revisit the suppression issue in light of Gant after trial, through a motion for appropriate relief.

The defendant was convicted at trial, so he filed his MAR, and after conducting a hearing, the trial judge ruled that the search was proper even under Gant. The first prong of Gant was not at issue, since the defendant was handcuffed and on the ground when his vehicle was searched. However, the judge concluded that the search was permissible under the second prong because it was reasonably likely to reveal “other firearms, gun boxes, holsters, ammunition, spent shell casings and other indicia of ownership of the firearm.” The defendant appealed, and a divided court of appeals sided with him.

The supreme court reversed the court of appeals and affirmed the trial judge. The majority opinion, written by Justice Edmunds, states that “the reasonable to believe standard enunciated in Gant establishes a threshold lower than probable cause,” and instead is akin to the reasonable, articulable suspicion standard required for a Terry stop. This is an important holding that, in my view, provides helpful clarification to officers. As to why that standard was met in this case, however, the opinion is less clear, saying only that circumstances “such as the report of defendant’s actions the night before and defendant’s furtive behavior when confronted by officers [he had held his hands down and out of the officers’ view, briefly] support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant’s vehicle.” The court didn’t say exactly what kind of additional evidence it had in mind, and the answer isn’t obvious, at least to me. Would finding another gun be further evidence of the concealed weapon offense, or would that be evidence of a separate crime? Would finding bullets, or evidence of ownership such as a handgun purchase permit or a receipt, be further evidence of the concealed weapon offense, or would it be collateral to that offense? The opinion doesn’t say, and so fails to shed meaningful light on the important issue of what counts as evidence of the crime of arrest.

Adding to the confusion, the opinion notes that “courts [in other jurisdictions] examining an offense involving weapons have inferred that the offense, by its nature, ordinarily makes it reasonable to believe the defendant’s car will contain evidence of that offense.” Yet immediately thereafter, the court “stress[es] that we are not holding that an arrest for carrying a concealed weapon [automatically] justifies the search of a vehicle. We believe that the ‘reasonable to believe’ standard required by Gant will not routinely be based on the nature or type of the offense of arrest and that the circumstances of each case ordinarily will determine the propriety of any vehicular searches conducted incident to an arrest.” (Emphases added.) If I were a law-enforcement officer, I’m not sure I would know quite what to make of that, i.e., whether an arrest for a concealed weapons offense would presumptively give me access to the arrestee’s vehicle or not.

Justice Timmons-Goodson dissented, arguing (1) that “reasonable to believe” shouldn’t be equated with reasonable suspicion, and (2) that the majority failed to explain clearly why that standard was met in the case at bar. You can surmise from my comments above that I’m more sympathetic with (2) than with (1). Perhaps future cases will add meat to the Mbacke bone and will bring more clarity to this area of the law.