The fallout from the Supreme Court's recent decision in Arizona v. Gant, see my initial post here, has been fast and furious. Most questions I've received have been about how it applies to existing and past cases, not to future searches. Here are a couple of common questions and answers. 1. Does Gant apply to searches, at issue in pending cases, that were conducted before the decision was handed down? Yes. It applies to all pending cases, whether at the trial or at the appellate level. See Griffith v. Kentucky, 479 U.S. 314 (1987) (holding that new constitutional rules of criminal procedure apply to all cases that are not yet final). This is illustrated by Gant itself -- the search in that case was obviously conducted before the Gant decision, yet the rule announced in Gant was applied to the search. Although some people have asked me about this issue in terms of "retroactivity," it isn't what courts talk about when they consider the retroactivity of new cases -- true retroactivity is discussed in connection with question 3, below. 2. Does that mean that all evidence obtained as a result of vehicle searches incident to arrest must be suppressed? No. In some cases, searches will be permissible under Gant, such as when the arrestee was unsecured and near the vehicle, or when the arresting officer had reason to believe that evidence of the crime for which the arrest was made would be found in the vehicle. As discussed in my earlier [...]
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