ARIZONA V. GANT

The United States Supreme Court’s Ruling in Arizona v. Gant
Robert L. Farb
Professor of Public Law and Government
School of Government
The University of North Carolina at Chapel Hill
April 26, 2009

On April 21, 2009, the United States Supreme Court issued a ruling in Arizona v. Gant
that significantly restricts 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 a
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. This memorandum discusses the ruling and its impact on law
enforcement practices and the introduction of evidence in court. The text of the Gant opinion is
available at http://straylight.law.cornell.edu/supct/html/07-542.ZS.html.

I. The Court’s Opinion and Ruling
Officers learned through a records check that Rodney Gant’s driver’s license was
suspended and there was an outstanding warrant for his arrest for driving with a suspended
license. Officers saw Gant driving a car as it entered a driveway. Gant parked his car, got out, and
shut the door. An officer, who was about thirty feet away, called to Gant. They approached each
other, meeting approximately ten to twelve feet from Gant’s car, where the officer arrested and
handcuffed him. (Other people at the scene were arrested for various offenses and secured in
patrol cars with handcuffs.) Officers placed Gant in the backseat of a patrol car. Officers then
searched the interior of his car, and a gun and cocaine were found there. Gant was found guilty of
possession of a narcotic drug for sale and another drug-related offense.
The Court discussed its ruling in Chimel v. California, 395 U.S. 752 (1969), which
authorized officers to search, as incident to arrest, the arrestee’s person and the area within the
arrestee’s immediate control, which is the area from which the arrestee might gain possession of a
weapon or destructible evidence. The Court then discussed its ruling in New York v. Belton, 453
U.S. 454 (1981), which applied Chimel in the context of vehicles. Belton ruled that an officer who
lawfully arrests an occupant of a vehicle may, as a contemporaneous incident of that arrest,
search the passenger compartment of the vehicle and any containers therein.
The Court noted that Belton has been widely construed in appellate court cases to allow a
vehicle search incident to the arrest of an occupant even if there is no possibility that the arrestee
could gain access to the vehicle when the search was conducted—for example, when an arrestee
is handcuffed and secured in a patrol car. The Court rejected this interpretation of Belton as
incompatible with the justifications underlying Chimel (preventing an arrestee from gaining
possession of a weapon or destructible evidence).
The Court ruled that the Chimel rationale authorizes officers to search a vehicle incident
to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of
the passenger compartment when the search is conducted. (The Court stated in footnote four that
“[b]ecause officers have many means of ensuring the safe arrest of vehicle occupants, it will be
the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of
access to the arrestee’s vehicle remains.”)
The Court authorized another ground for a search even though it admitted that the ground
does not follow from Chimel. The Court stated that a search also is justified when it is reasonable
to believe that evidence relevant to the crime of arrest might be found in the vehicle. The Court
noted that in many cases, such as when a recent occupant is arrested for a traffic offense, there
will be no reasonable basis to believe the vehicle contains relevant evidence. But in others,
including Belton and Thornton v. United States, 541 U.S. 615 (2004) (Belton rule applies when
vehicle occupant had just left vehicle before officer arrived), the offense of arrest will allow
searching the passenger compartment of an arrestee’s vehicle and any containers therein.
Officers in both cases had made arrests for drug offenses and then searched the vehicles’
passenger compartments. In Belton, an officer smelled burnt marijuana in the vehicle. In
Thornton, the officer had seized illegal drugs from the defendant’s person.

The Court applied its ruling to the facts of the case before it and concluded that neither
the possibility of Gant’s access to weapons or destructible evidence nor the likelihood of
discovering offense-related evidence authorized the search of Gant’s vehicle. Unlike Belton,
which involved a single officer confronted with four unsecured arrestees, the five officers in this
case outnumbered Gant and two other arrestees, all of whom had been handcuffed and secured in
patrol cars before the search was conducted. Gant clearly was not within reaching distance of his
car at the time of the search. An evidentiary basis for the search was also lacking. Gant was
arrested for driving with a suspended license, an offense for which officers could not expect to
find evidence in the passenger compartment of Gant’s car. The Court ruled that the search of
Gant’s vehicle was unreasonable under the Fourth Amendment.

The Court noted that other established exceptions to the warrant requirement authorize a
vehicle search under additional circumstances involving safety or evidentiary concerns,
including: (1) searching a vehicle’s passenger compartment when an officer reasonably suspects
that a person, whether or not an arrestee, is dangerous and might access the vehicle to gain
immediate control of weapons, citing Michigan v. Long, 436 U.S. 1032 (1983) (commonly known
as a “car frisk”); (2) searching any area of a vehicle when there is probable cause to believe it
may contain evidence of criminal activity, citing United States v. Ross, 456 U.S. 798 (1982); and
(3) searching when other circumstances in which safety or evidentiary interests would justify the
search. Thus, Gant does not affect the availability of other Fourth Amendment justifications to
search a vehicle.

II. “Reasonable to Believe” Standard in Court’s Opinion
As discussed above, under Gant an officer is authorized, as a search incident to arrest, to
search a vehicle if it is “reasonable to believe” that evidence relevant to the crime of arrest might
be found in the vehicle. Does that require “probable cause,” “reasonable suspicion,” or some
lesser standard of reasonableness under the Fourth Amendment? The Court did not offer an
explanation. The term appears in Justice Scalia’s concurring opinion in Thornton v. United States
(“I would therefore limit Belton searches to cases where it is reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle”). Neither his concurring opinion
nor his cited cases provide a definitive answer. The Court used a similar term, “reason to
believe,” in Payton v. New York (“for Fourth Amendment purposes, an arrest warrant founded on
probable cause implicitly carries with it the limited authority to enter a dwelling in which the
suspect lives when there is reason to believe the suspect is within”) without defining it. Federal
appellate courts have split on its meaning, but a large majority have interpreted the term to mean
less evidence than is required to establish probable cause. The Court also used “reason to
believe” in Terry v. Ohio, the source of the stop and frisk justification, which in the course of the
Court’s later cases has come to mean “reasonable suspicion.” The Court in Gant could have
employed “reasonable suspicion” but it did not.
The definitive answer awaits a future United States Supreme Court ruling or, before then,
lower federal court or state appellate court rulings.

III. Impact of Ruling on Law Enforcement Officers
As discussed above, the Court’s ruling authorizes a search of a vehicle incident to arrest
under only two circumstances. The first is when the arrestee is unsecured and within reaching
distance of the passenger compartment when the search (not the arrest) is conducted. The Court
stated that it will be a rare case in which in which an officer is unable to fully effectuate an arrest
so that an arrestee has a realistic possibility of access to the vehicle. Thus, the typical case in
which an officer secures the arrestee with handcuffs and places the arrestee in a patrol vehicle
will not satisfy this circumstance. Even if a handcuffed arrestee is not placed in a patrol car, it is
not likely that the arrestee has realistic access to the vehicle absent unusual circumstances.
The second circumstance is if it is reasonable to believe that evidence relevant to the
crime of arrest might be found in the vehicle. For motor vehicle criminal offenses such as driving
while license revoked, driving without a valid driver’s license, misdemeanor speeding, etc., it
would be highly unlikely that this circumstance would exist to permit a search of the vehicle. 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 offense charged in the warrant 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 recent the offense was committed may be an important factor in determining the “reasonable
to believe” standard in this context.
If neither circumstance exists to permit a search of the vehicle under Gant, there are other
Fourth Amendment justifications, among others, that may authorize a warrantless search of a
vehicle (as discussed above, the Court mentioned the first two justifications in its opinion):
1. probable cause to believe that evidence of criminal activity exists in the vehicle;
2. reasonable suspicion that a person, whether or not an arrestee, is dangerous and might
access the vehicle to gain immediate control of weapons (commonly known as a “car
frisk”);
3. impoundment and inventory of a vehicle, which must be conducted under standard
operating procedures that are reasonable under the Fourth Amendment;
4. consent to search;
5. after stopping a vehicle for traffic violations and the driver has left the vehicle,
entering the vehicle to remover papers that obscures the vehicle’s Vehicle
Identification Number (VIN).

IV. Application of Gant to Pending Cases
Under Griffith v. Kentucky, 479 U.S. 314 (1987), Gant clearly applies to all pending
cases in trial courts and those not yet final on direct appeal.

Assuming a search is unconstitutional based on Gant, there may exist exceptions to the
application of the Fourth Amendment’s exclusionary rule that may allow the unlawfully seized
evidence to be admissible, such as inevitable discovery and independent source doctrines.

V. Retroactivity of Gant
Gant is likely not retroactive to collateral review under Teague v. Lane and State v. Zuniga
because it is a new procedural rule (it significantly narrowed Belton) and is not likely to
be found to be a watershed rule of criminal procedure.