Would slowing down and conducting inventory have made this evidence admissible?

A recent case from the 4th Circuit applies the Gant rule, demonstrating its impact on a warrantless search incident to arrest


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UNITED STATES V. DAVIS, 2021 WL 1826255 (4th Cir. 2021)

An officer stopped Howard Davis because it appeared his Honda Accord windows were tinted darker than permitted by state code. The officer told Davis he had been pulled over because of the car’s window tint; the officer obtained Davis’s license and proof of insurance. When the officer ran a criminal history check, he discovered Davis’s driver license was valid and learned of his “history of felony drug charges and convictions.”

Two other officers arrived, parking behind the first officer. As the three officers briefly conferred, Davis put his hand out of the car window and signaled he was leaving. Davis then drove off without his license or proof of insurance, which were in the officer’s hands. As one might expect, the officers followed.

Davis accelerated through a residential neighborhood, reaching speeds double the speed limit, then turned into a dead-end cul-de-sac, where he drove between two houses and into a backyard. Davis jumped out of his car, carrying a backpack, ran into a swamp and got stuck in knee-high water. An officer chasing Davis on foot drew his gun and ordered him to walk out of the swamp. Davis plodded through the muck to dry ground where he laid prone, dropping the backpack.

The officer first frisked Davis and found a large bundle of cash. He then opened the backpack and discovered large amounts of cash and two plastic bags containing what later was confirmed to be cocaine. Officers searched the Accord and found a digital scale and a bag with more bundles of cash. A witness told officers Davis had tossed a gun out the window as he fled. The officers located a .45 caliber handgun along Davis’s flight path.

Davis was charged with possession with intent to distribute cocaine base and cocaine, possession of a firearm in furtherance of a drug crime and being a felon in possession of a firearm. A jury convicted Davis and he was sentenced to 35 years in prison. Davis appealed, claiming that the searches of the backpack and car were illegal under the rule of Arizona v. Gant (556 U.S. 332 (2009)).

In Gant, the Supreme Court held that, incident to an arrest, a vehicle may be searched without a warrant if officers reasonably believe the arrestee “could have accessed his car at the time of the search.” At the time officers searched Davis’s backpack, he was on the ground and in handcuffs, limiting his access to both the car and the backpack. The question presented to the appellate court was whether the Gant rule should apply to the search of the backpack.

In Gant, the Court observed that the basis for the search incident to arrest exception “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” The Gant Court held that officers may search a vehicle incident to an arrest only if the arrestee is unrestrained and “within reaching distance of the passenger compartment” (the first prong of the Gant rule) at the time of the search or “it is reasonable to believe the vehicle contains evidence” of the crime for which the person is being arrested (the second prong of the Gant rule).

Davis argued the first prong of the Gant rule should apply to bar the warrantless search of his backpack. In harmony with prior decisions from courts of appeal in the 3rd, 9th and 10th Circuits, the court held the Gant rule’s first prong applied to “searches of non-vehicular containers and conclude that police officers can conduct warrantless searches of non-vehicular containers incident to a lawful arrest ‘only when the arrestee is unsecured and within reaching distance of the [container] at the time of the search.’”

Applying this holding, the court continued that the officer could have lawfully searched Davis’s backpack incident to arrest only if it was reasonable to believe Davis could have accessed the backpack at the time of the search. Davis could not. The court stated: “We need not recount the various acrobatic maneuvers Davis would have needed to perform to place the backpack within his reaching distance at the time of the search. It is enough to say that, at the moment in question, the handcuffed and face-down Davis had severely restrained mobility and was not within reaching distance of the backpack next to him.”

The prosecution unsuccessfully advanced alternative arguments to justify the officer’s search. Any search of the backpack incident to arrest would fail because Davis was fully secured and not within reaching distance of the backpack. Nor did the discovery of a bundle of cash, plus Davis’s flight, create probable cause to believe that Davis committed a crime that might involve evidence concealed within the car (or backpack).

The appellate court remanded the case to the trial court with directions to exclude the evidence from the search of the backpack and the car. The court acknowledged the seeming unfairness of their decision: “Indeed, law enforcement may feel that courts are missing the forest for the trees—focusing myopically on minor details and ignoring the big picture, which in this case involves a man in a vehicle with tinted windows fleeing a routine traffic stop and then transporting a backpack on foot into a swamp.” The court pointed out that exceptions to the Fourth Amendment warrant requirement are “narrow exceptions which must be justified by specific circumstances.”

In so many situations, officers would benefit from slowing down. In this case, it is certainly possible that a court might have granted a warrant to search the car and the backpack, particularly citing the evidence of the discarded handgun. Alternatively, the officers likely would have impounded the car, abandoned by Davis in someone’s back yard. An inventory (assuming the agency had a proper inventory policy) would have yielded the digital scale and a bag with bundles of cash. Once Davis was booked into jail on the traffic crimes, an inventory of his personal property, including the backpack, would have yielded the other evidence. Pause when possible!

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