Foy and Mbacke

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I won’t have time today for a regular blog post, so I’ll just make brief mention of something I’ve been meaning to blog about for a week or two, ever since a reader alerted me to it.

Over the last couple of months, the court of appeals has decided two post-Gant search incident to arrest cases. (For a refresher on Gant, click here.) They’re interesting because they explore the second prong of the Gant holding — the part that allows officers to search a vehicle incident to the arrest of a recent occupant if it is “reasonable to believe” that evidence of the crime of arrest will be in the vehicle. The cases are:

State v. Foy, __ N.C. App. __, __ S.E.2d __, 2010 WL 5421326 (Dec. 21, 2010)

State v. Mbacke, __ N.C. App. __, __ S.E.2d __, 2011 WL 13814 (Jan. 4, 2011)

Both Foy and Mbacke involved defendants who were arrested on the roadside for carrying a concealed weapon. In both cases, officers searched the defendants’ vehicles incident to arrest, finding cocaine (Mbacke) and alcohol, marijuana, and additional weaponry (Foy). Both defendants argued that the searches were improper under Gant because there was no reason to believe that additional evidence of carrying a concealed weapon would be found in their vehicles. The court of appeals ruled for the state in Foy,  but for the defendant in Mbacke. There’s a dissent in Mbacke, so I imagine we’ll have a decision from the state supreme court soon enough. Oddly, neither the majority nor the dissent in Mbacke cites Foy, which was decided two weeks earlier.

This is obviously a fact-intensive issue, and perhaps readers will be able to point to particular facts of the two cases that can reconcile the outcomes. If so, please post a comment. I think it’s pretty tough.

Stay tuned for further developments.

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