Is Arizona v. Gant Limited to Automobiles?

In Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710 (2009), the Supreme Court held that an officer may search an arrestee’s vehicle incident to arrest only if the arrestee is unsecured and “within reaching distance of the passenger compartment” or “it is reasonable to believe the vehicle contains evidence of the offense of arrest.” My original summary of Gant is here. Shortly after I posted that summary, I wrote this post, asking whether Gant is limited to automobile searches, or whether it might also constrain searches of personal property that have historically been performed incident to arrest. For example, if an arrestee is secured and separated from his briefcase, is the briefcase subject to search incident to arrest after Gant? What about a cell phone?

I recently came across a case on this very issue: United States v. Shakir, __ F.3d __, 2010 WL 3122808 (3d Cir. Aug. 10, 2010). In Shakir, police arrested the defendant in a hotel lobby pursuant to an arrest warrant. When he was arrested, the defendant dropped a gym bag. He was handcuffed and secured by two officers, at which point a third officer searched the bag, finding a large amount of cash that was used to connect the defendant to a bank robbery. The defendant was charged with the bank robbery – the original warrant concerned a separate crime – and moved to suppress the cash, arguing that the search of the bag incident to arrest was improper because he was secured and unable to access the bag.

The trial court denied the motion. The defendant went to trial, was convicted, and appealed, reiterating his argument that “because he was already handcuffed at the time [the officer] searched his bag, he had no access to any weapon or destructible evidence that might have been in the bag.” Under Gant, he argued, the search was impermissible. The Government responded in part that “[b]ecause Gant involved an automobile search, and because it interpreted Belton, another automobile case . . . the rule of Gant applies only to vehicle searches.”

The Third Circuit said that it did “not read Gant so narrowly,” and that if it were clear that the defendant could not access the bag, a search of the bag incident to arrest would be improper under Gant. However, it noted that “handcuffs are not fail-safe”; that the defendant remained right next to the bag; and that at least one of the defendant’s accomplices was present at the scene. So, while concluding that Gant is not limited to automobile searches, the court nonetheless affirmed the denial of the defendant’s motion to suppress.

A few minutes on Westlaw turned up another case on point. In United States v. Taylor, 656 F.Supp.2d 998 (E.D. Mo. 2009), officers entered the defendant’s residence pursuant to an arrest warrant and found the defendant hiding in the attic. After the defendant was extricated from the attic and handcuffed, an officer returned to the attic and searched the area where the defendant had been hiding, finding a gun that resulted in the defendant being charged with possession of a firearm by a felon. The defendant moved to suppress the gun, arguing under Gant that he had been secured and removed from the attic. The government argued in part that Gant “addressed only vehicle searches, and therefore it did not overrule [prior] case law approving wingspan searches incident to arrests that occur in residences.” As in Shakir, the court ruled for the defendant, stating that it was “not persuaded that Gant should be limited to the automobile context.”

If you know of other cases on this issue, please email me or post a comment. I expect the reach of Gant to be an area of continuing controversy, though as I suggested in my earlier post, I seriously doubt that it will ultimately be limited exclusively to vehicles.