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Getting Gant right

Arizona v. Gant was one of the biggest Supreme Court decisions on 4th Amendment law in the past five years, and probably the most (only?) pro-defendant one in ten.  The decision (discussed here) effectively overruled New York v. Belton, which had permitted police to search the interior of a vehicle, and any closed containers in it, incident to the arrest of any of its occupants.  The Ohio courts have been tackling the effects of Gant -- it's been cited 23 times since it came down a year ago -- and last week the 8th did, in State v. Burke, with somewhat uneven results.

While on patrol in the early morning hours, Officer Weaver saw Burke driving with music blaring and the driver's side door open.  Weaver followed Burke a short while, but then turned off in another direction when Burke lowered the volume of the music.  (Apparently, loud music is more disconcerting to Cleveland's finest than driving with your car door open.)  Weaver again encountered Burke a few minutes later and saw him go left of center, so he stopped Burke's car.

Weaver testified that he noted a "strong odor of marijuana" as he approached the car.  Burke denied he had any drugs, and when the officer asked if he could check, Burke told him that he didn't mind, but that he didn't think the officer had probable cause to do so.  Burke got out of the car, and when he did so, somewhat embarassingly, a bottle of beer fell out and shattered.  (Don't you just hate when that happens to you?)  Weaver put Burke under arrest for having an open container, weaving, and loud music, handcuffed him, put him in the squad car, and searched the car for marijuana.  A successful search, it turned out, netting "two plastic bags containing forty individually wrapped bags of suspected marijuana and one plastic bag containing fifty individually wrapped bags of suspected crack cocaine." 

 The trial judge threw out the search on the basis of Gant, finding that "Defendant was placed under arrest, handcuffed behind his back, and police could not reasonably expect to find evidence of the basis for arrest in this case (i.e., a traffic violation stop)."   The appellate panel concurred, agreeing that "the search was impermissible" because "defendant was handcuffed and under arrest at the time of the search and the officer had no reason to believe that the vehicle contained evidence of the offenses of arrest."

I think the court is reading Gant too broadly here.  To be sure, in Gant the Court held

Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.

The very next sentence, though says,

When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

And that's the problem in Burke:  the court focuses on only one of the exceptions to the warrant requirement, search incident to arrest.  That's the only one that was at issue in Gant; although the police suspected Gant of drug dealing, they arrested him for driving on a suspended license.  There would be no evidence of that offense in the car, and they had no probable cause to believe that evidence of any other crime was in the vehicle, either.  That's not the situation in Burke; there's a boatload of cases saying that the police have probable cause to search a car if they smell marijuana. 

That's not to fault the court.  I have no idea what the prosecutor argued, or how well the cop did on the stand; it may very well be that the probable cause issue was overlooked.   The State's best argument would have been that the defendant wasn't actually arrested, but detained; the 12th District drew that distinction earlier this week in State v. Williams(Paragraph 15 of the opinion contains an excellent discussion of the subject.)  The argument might have been a hard sell in Burke, since he was actually handcuffed, and that goes a lot farther toward showing an actual arrest.  But if you analyze the case in the narrow and singular context of a search incident to arrest, then the court got it right.

The other interesting aspect of the court's decision is the consent issue:

In this matter, Officer Weaver testified that defendant consented to the search but stated that he did not think that there was probable cause. Defendant testified that he did not consent to the search. From the totality of the circumstances, we cannot say that the state established that consent was freely and voluntarily given, as the state’s evidence is more indicative of defendant acquiescing to the officer’s authority than freely and voluntarily consenting.

That's a street-smart argument.  It's not one a lawyer would buy in most other contexts:  if your client had entered into a contract, I doubt you'd tell him he could get out of it just because he'd happened to tell the other person at the time he signed it, "I probably shouldn't do this."  But when you're dealing with a guy who's got a gun and a badge, saying "no" is a lot harder, and there's some basis for the court's conclusion that this was indeed no more than acquiescence to a claim of lawful authority.

But the 8th District is about the only place where you'll see a court come to that conclusion.

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