Search Incident to the Arrest of an Occupant of a Vehicle: Review and Update (Part I)

This blog post is divided in two parts. This is Part I. Part II will be posted tomorrow. The United States Supreme Court in 2009 issued a ruling in Arizona v. Gant that significantly restricted 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 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. The Court did not define reasonable to believe, but after Gant the North Carolina Supreme Court in State v. Mbacke, 365 N.C. 403 (2012), ruled that it means reasonable suspicion. Concerning a search under circumstance (1) above, the Court stated that it will be a rare case 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, as were the facts in Gant. 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. For example, [...]