State v. Foy, 208 N.C. App. 562 (Dec. 21, 2010)

The trial court erred by suppressing evidence obtained pursuant to a search incident to arrest. After stopping the defendant’s vehicle, an officer decided not to charge him with impaired driving but to allow the defendant to have someone pick him up. The defendant consented to the officer to retrieving a cell phone from the vehicle. While doing that, the officer saw a weapon and charged the defendant with carrying a concealed weapon. Following the arrest, officers searched the defendant’s vehicle, finding addition contraband, which was suppressed by the trial court. The court noted that under Arizona v. Gant, 556 U.S. 332 (2009), officers may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of the vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. Citing State v. Toledo, 204 N.C. App. 170 (2010), the court held that having arrested the defendant for carrying a concealed weapon, it was reasonable for the officer to believe that the vehicle contained additional offense-related contraband, within the meaning of the second Gant exception.