Although we have not yet seen the flurry of end-of-term opinions sure to emerge from the Supreme Court in June, few are likely to gain as much immediate attention as Arizona v. Gant, in which the Court imposed new Fourth Amendment limitations on the ability of police officers to search vehicles.  The CrimProf listserve has been buzzing about Gant since the opinion came out, and now we are beginning to see the first signs of fallout in the lower courts.  Rising 3L Brent Simerson sent me the following insightful comments about the significance of Gant, for which I am grateful:

As one might expect, the United States Supreme Court’s recent ruling in Arizona v. Gant has triggered changes in the way police officers and attorneys must analyze warrantless searches incident to a lawful arrest in the vehicle context.  Professor Jon Deitrich provided several interesting observations about the opinion itself in a post last week.  The Court held that police officers may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”  This holding narrowed the Court’s prior holdings in Chimel v. California and New York v. Belton, which were largely interpreted by lower courts as permitting vehicular searches incident to a lawful arrest regardless of how improbable it was that the arrestee could access the automobile.  Gant will undoubtedly constrict law enforcement’s hitherto broad authority to search vehicles incident to lawful arrest, see United States v. Majette, No. 08-4427, 2009 U.S. App. LEXIS 9267 (4th Cir. Apr. 30, 2009) (conviction vacated pursuant to Gant), but it is too soon to describe how courts will answer tough questions presented by Gant‘s requirements: What constitutes a “secured” arrestee?  May police officers circumscribe the spirit of Gant by directing the unsecured arrestee to remain within reaching distance of the passenger compartments?  These fact-sensitive questions will take time to resolve.

However, a practical consequence of Gant that is already rising to the surface is the stress its holding will have on the other exceptions to the warrant requirement.  As the Justices in Gant carefully noted, police officers may still search a vehicle if they have the arrestee’s consent, a reasonable suspicion to believe that the vehicle contains evidence of a crime (see United States v. Ross, 456 U. S. 798 (1982); California v. Acevedo, 500 U.S. 565 (1991)), a reasonable suspicion to believe that the occupants of the car possess dangerous weapons at the time of the stop (see Michigan v. Long, 463 U.S. 1032 (1983)), or if they are performing a valid inventory search of the vehicle (see Colorado v. Bertine, 479 U.S. 367 (1987)).  Attorneys and courts are increasingly turning to these exceptions to resolve cases arising out of incidents that occurred before the Gant decision came down.  The following are three recent examples:

• United States v. Barnum, No. 08-2824, 2009 U.S. App. LEXIS 8994 (8th Cir. Apr. 28, 2009): The defendant was issued a warning ticket for a broken taillight and, with permission of the defendant, the officers searched the defendant and discovered a crack pipe in his pocket. The officers arrested the defendant and placed him in the back of the police car. There, the defendant admitted that he had a handgun in the vehicle. The court rejected the defendant’s argument that the gun should be suppressed based on Gant and affirmed the convictions. It stated that the defendant voluntarily consented to the vehicle search or, alternatively, that the officers had reasonable suspicion to believe that the vehicle contained evidence of a crime.
• United States v. Sands, No. 08-3270, 2009 U.S. App. LEXIS 10217 (10th Cir. May 11, 2009): As part of a DEA investigation, law enforcement officers pulled over the defendant, a suspected drug dealer, for a tag violation. The defendant was arrested pursuant to an outstanding arrest warrant. Before towing the car, an inventory search uncovered a handgun. The court noted in affirming the convictions that although “the search is characterized in some places in the record as incident to arrest, the officer who conducted the search testified that it was an inventory search, and it is undisputed that the vehicle was being prepared for towing.” Therefore, the court stated that it need not reach the Gant question.
• United States v. Kieckbusch, No. 08-CR-254, 2009 U.S. Dist. LEXIS 37928 (E.D. Wis. May 4, 2009): The defendant was stopped by a police officer. The defendant contended that he was seated on a curb when police officers searched his vehicle. The search yielded a sawed-off shotgun. After unsuccessfully moving to suppress the weapons prior to Gant, the defendant pled guilty to two weapons offenses. Before sentencing, the defendant moved for an adjournment based on Gant, but the court denied the motion. The court distinguished the case from Gant, finding that the officers were performing a protective search under Long. “[B]ased on defendant’s erratic driving, the recent gang violence in the area, defendant’s gang affiliation, defendant’s excessive nervousness during the stop, and his furtive gestures, the officers had ample justification to search the car for weapons.”

As these cases suggest, Gant will likely have a small effect on warrantless vehicle searches in the long-term.  If prosecutors and courts were able to validate pre-Gant searches using the other exceptions to the warrant requirement in the last thirty days, then any impediments on vehicle searches due to the Gant decision will likely be negligible for post-Gant law enforcement agencies.  What remains to be seen is if and to what extent the other exceptions are broadened to cure any Gant violations, and how lower courts intend on interpreting the Gant requirements themselves.