I Gant Believe I’m Posting about This Case Again!

OK, one more post about Arizona v. Gant, which I’ve previously discussed here and here.

First, School of Government faculty member Bob Farb has written a short paper about Gant that summarizes the decision and its consequences.  You can find the paper here.

Second, I’ve been pondering one possible implication of Gant that I haven’t seen discussed elsewhere, namely, the effect of Gant on the law regarding searches of briefcases, purses, luggage, and similar items incident to arrest.  Since Belton, most courts have held that such items may be searched incident to arrest if they were within an arrestee’s reach at the time of arrest, even if, at the time of the search, the arrestee was restrained and hence not able to access the item.  See, e.g., United States v. Mitchell, 64 F.3d 1105 (7th Cir. 1995) (briefcase that was in arrestee’s control at the time of arrest could be searched shortly thereafter even though the arrestee had been handcuffed in the interim); Wayne R. LaFave, Search and Seizure § 5.5(a).

The rationale of Gant almost certainly applies to these cases, too.  In other words, after Gant, I doubt that an officer can constitutionally search an arrestee’s briefcase or a suitcase incident to arrest, unless the arrestee is unsecured and within reach of the item, or there is reason to believe that the luggage contains evidence of the crime of arrest.  (As with vehicle searches, there are, of course, other possible justifications for warrantless searches of luggage.) I’m not as confident about purses, which tend to be smaller and more closely associated with the person than briefcases or suitcases, the massive duffel bags carried by certain Hollywood starlets excepted.

Interestingly, this effect of Gant may be felt less strongly in North Carolina than in other jurisdictions, as a result of State v. Thomas, 81 N.C. App. 200 (1986).  Thomas rejected a Belton-inspired bright-line rule allowing searches incident to arrest of luggage, and held that a search incident to arrest of a locked, “extremely large” and cumbersome suitcase possessed by an arrestee who was safely in custody was improper.  There has been surprisingly little litigation under Thomas, and I don’t know how officers are interpreting it in practice, but it appears that North Carolina may be closer to “Gant-compliant” than other states in this respect.  I’d love to hear from some officers about how you have been handling purses, briefcases, backpacks, and suitcases, and whether you’re planning any changes after Gant.

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