Search Incident to the Arrest of an Occupant of a Vehicle: Review and Update (Part II)

This topic was divided in two parts. This is Part II. Part I was posted yesterday.

In yesterday’s blog post, I discussed the United States Supreme Court in 2009 ruling in Arizona v. Gant that significantly restricted an officer’s authority, based on the theory of search incident to arrest, to conduct a search of the passenger compartment of a vehicle after arresting an occupant or recent occupant. The Court ruled that officers may search a vehicle incident to arrest only if (1) the arrestee is unsecured and within reaching distance of the passenger compartment when the search is conducted, or (2) it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle. Gant ruled that officers in that case did not have a reasonable belief to search the arrested defendant’s vehicle for evidence of driving with a suspended license. The Court did not define reasonable to believe, but after Gant the North Carolina Supreme Court in State v. Mbacke, 365 N.C. 403 (2012), ruled that it is the equivalent of reasonable suspicion.

I left for this blog post a discussion of circumstance (2), which has been the subject of almost all of the North Carolina cases decided since Gant.

The only North Supreme Court case involving Arizona v. Gant is State v. Mbacke, cited above. The court reversed the court of appeals and ruled that a search of the defendant’s vehicle incident to his arrest for carrying a concealed gun did not violate the Fourth Amendment. Officers were dispatched to a specific street address in response to a 911 caller’s report that a black male armed with a black handgun, wearing a yellow shirt, and driving a red Ford Escape was parked in his driveway and that the male had “shot up” his house the previous night. They observed a black male (later identified as the defendant) wearing a yellow shirt and backing a red or maroon Ford Escape out of the driveway. The defendant did not cooperate by following the officers’ instructions, but they eventually handcuffed him and advised him that he was being detained because they had received a report that a person matching his description was carrying a weapon. After the defendant said that he had a gun in his waistband and officers found the gun under his shirt, the defendant was arrested for carrying a concealed gun. The officers secured the defendant in the back of a patrol car, returned to his vehicle, and opened the driver’s side door and found cocaine. The court upheld the search:

[D]efendant was arrested for . . . carrying a concealed gun. The arrest was based upon defendant’s disclosure that the weapon was under his shirt. Other circumstances . . . such as the report of defendant’s actions the night before and defendant’s furtive behavior when confronted by officers, support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant’s vehicle. Accordingly, the search was permissible under Gant . . . .”

The court noted that it “[was] not holding that an arrest for carrying a concealed weapon is ipso facto an occasion that justifies the search of a vehicle.” It expressed the belief 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.”

The North Carolina Court of Appeals has upheld a search of a vehicle incident to arrest under circumstance (2) after an officer had arrested a passenger for possessing drug paraphernalia (State v. Watkins, 725 S.E.2d 400 (2012)), a passenger for possessing marijuana (State v. Louis, 2009 WL 2501221 (2009) (unpublished)), a driver for possessing a concealed weapon (State v. Foy, 208 N.C. App. 562 (2010)), two occupants for a just-committed house break-in (State v. Memije, 2013 WL 432574 (2013) (unpublished), and a passenger for an armed robbery committed three hours earlier and another armed robbery committed three days ago (State v. Pegues, 2012 WL 121236 (2012) (unpublished)).

The North Carolina Court of Appeals has ruled unconstitutional a search of a vehicle under circumstance (2) after a driver was arrested for an expired registration tag and failure to notify the DMV of a change of address, State v. Carter, 200 N.C. App. 47 (2009), and an arrest of a driver for driving while license revoked, State v. Johnson, 204 N.C. App. 259 (2010).

Some additional thoughts about circumstance (2). It would be highly unlikely that this circumstance would exist to permit a search of the vehicle involving arrests for motor vehicle criminal offenses such as misdemeanor speeding, driving while license revoked, driving without a valid driver’s license, and so forth. For other motor vehicle offenses, such as impaired driving, there may be valid grounds for believing that evidence relevant to the offense may exist in the vehicle (for example, impairing substances or containers used to drink or otherwise ingest them). For arrests based on outstanding arrest warrants, it is highly unlikely that this circumstance would exist to permit a search of the vehicle, unless incriminating facts concerning the charged offense exist at the arrest scene or the offense is one for which evidence of the offense likely would still be found in the vehicle. How recently the offense was committed may be an important factor in determining the reasonable to believe standard in this context. With arrests for non-motor-vehicle offenses resulting from information discovered during a vehicle stop, the existing circumstances will determine whether it is reasonable to believe that evidence relevant to the crime of arrest may be found in the vehicle.