[trevor]

OK. Looks like the US Supreme Court decision in ARIZONA V GRANT (GRANT) means that it is no longer a given that your vehicle can be searched as a consequence of your arrest. Grant say that if you are not in arms reach of your car at the time of arrest, it cannot be lawfully searched. HOWEVER, I'm not sure what GRANT would change for the 99.9% of arrests where you are driving. IANAL, so please correct me if needed.

"Supreme Court ruled [...] that police may conduct a warrantless vehicle search incident to an arrest only if the arrestee is within reaching distance of the vehicle or the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.”
(http://www.scotuswiki.com/index.php?tit ... na_v._Gant)

For you detail folks, and Missourians:

Here's the decision: http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf
And here's the oral arguments: http://www.supremecourtus.gov/oral_argu ... 07-542.pdf

Both are intersting, but don't tell us how Grant has or has not changed police behavior during and after an arrest. Does anyone have access to any local departmental guidance?

[Tony T]

or the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.”

This is just gonna be walked all over. Or maybe side stepped would me more accurate.

[GatorDude]

A little sarcasm...but I can definitely see it happen...

Police Officer: OK. Up against the car! Please place your hands on the vehicle (Does stop and frisk for "officer's safety").

After pleasantries....

Police Officer: You're under arrest.

Of course, since you were just up against the car the officer can search the car incident to arrest....

[David]

From my research this is actually a game changer. If you are asked to exit your vehicle and asked to put your hands on the trunk for a terry pat, asked to sit or stand away from the vehicle, placed in an LEO cruiser or placed in any other position (handcuffed) which renders the passenger compartment of the vehicle beyond arms reach, the LEO must obtain a warrant to search your vehicle. There is no longer a vehicle search incident to arrest unless it is conducted with you in immediate proximity of the passenger compartment of your vehicle as at that time any item in the vehicle would be deemed a potential danger to the officer. Obviously there are exigent circumstances like a ticking bomb inside, etc. and in plain sight still applies.

There was another case recently (not sure where right now but I have it on file) where an officer removed a cigarette pack from a purse and searched the contents. His defense was his security as the woman owner reached into the purse to the pack after the officer asked her not to open her purse. The judge threw it out referencing the Gant decision stating that once the pack was removed from the purse and was in the officer's possession any existing danger to the officer was no longer present. He must obtain a warrant to search the contents.

I think if you spend some time researching subsequent cases you will agree that this case was a leap in the direction of restoring our rights.

[David]

Here's a few cases:

Under Gant, the search incident of defendant's backpack was unreasonable because he was handcuffed and could not access it. Under Second Circuit authority, "exigent circumstances [can] justify a warrantless search of a closed container only when the police have reason to believe a container is concealing a dangerous instrumentality and that the hidden danger poses an imminent threat to either the arresting officers or the surrounding public." Here, the police did not have that either. "Special exigencies" may permit it. United States v. Morillo, 2009 U.S. Dist. LEXIS 94396 (E.D. N.Y. October 9, 2009), USMJ R&R 2009 U.S. Dist. LEXIS 94421 (E.D. N.Y. August 12, 2009):

Arrest for expired registration and lack of insurance cannot justify a search incident of the car's interior under Gant, in a case GVRed after Gant (reversing prior holding). State v. Carter, 2009 N.C. App. LEXIS 1574 (September 15, 2009), on remand from Carter v. North Carolina, 129 S. Ct. 2158, 173 L. Ed. 2d 1153 (U.S., 2009).

Officers had RS that defendant was involved in a drug offense and had prior weapons offenses. That justified his patdown. The search of defendant’s car trunk would be unreasonable under Gant, but it was justified by the automobile exception becaue of probable cause. United States v. Arnold, 2009 U.S. Dist. LEXIS 87215 (E.D. Mich. September 23, 2009).*

Defendant was arrested after he walked out of a bedroom, and a search incident was conducted of the bedroom. The court finds that Gant does not apply to houses. United States v. Harris, 2009 U.S. Dist. LEXIS 86269 (N.D. Ill. September 21, 2009)*:

Motion to reconsider under Gant denied because the defendant concedes his stop and patdown were valid, and removing a spoon from his pocket was valid, and drug residue on the spoon gave justification for a search of his car under the automobile exception too. United States v. Herman, 2009 U.S. Dist. LEXIS 83243 (E.D. Wash. September 11, 2009).*

This vehicle search was governed by the automobile exception and not Gant because the officers saw ammunition on the front seat, and that gave PC to look for a gun it would match. United States v. Black, 2009 U.S. Dist. LEXIS 77111 (M.D. Fla. July 7, 2009).*

Search incident of defendant's gym bag was invalid under Gant because defendant arrested in a taxicab, handcuffed, the bag was in the taxi, and then the officers decided to search the gym bag. Suppression hearing was pre-Gant, and it was rebriefed after Gant. United States v. Allison, 2009 U.S. Dist. LEXIS 73808 (S.D. Iowa July 24, 2009):

Search of a cigarette packet seized for officer safety from defendant's purse was unreasonable because the threat (also admittedly a close call) was neutralized by seizure. State v. Johnson, 2009 Kan. App. LEXIS 849 (October 9, 2009):

[jaal4]

) No person shall knowingly discharge a firearm while in or on a motor vehicle.

(B) No person shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle.

(C) No person shall knowingly transport or have a firearm in a motor vehicle, unless the person may lawfully possess that firearm under applicable law of this state or the United States, the firearm is unloaded, and the firearm is carried in one of the following ways:

(1) In a closed package, box, or case;

(2) In a compartment that can be reached only by leaving the vehicle;

(3) In plain sight and secured in a rack or holder made for the purpose;

(4) If the firearm is at least twenty-four inches in overall length as measured from the muzzle to the part of the stock furthest from the muzzle and if the barrel is at least eighteen inches in length, either in plain sight with the action open or the weapon stripped, or, if the firearm is of a type on which the action will not stay open or which cannot easily be stripped, in plain sight.

(D) No person shall knowingly transport or have a loaded handgun in a motor vehicle if, at the time of that transportation or possession, any of the following applies:

(1) The person is under the influence of alcohol, a drug of abuse, or a combination of them.

(2) The person’s whole blood, blood serum or plasma, breath, or urine contains a concentration of alcohol, a listed controlled substance, or a listed metabolite of a controlled substance prohibited for persons operating a vehicle, as specified in division (A) of section 4511.19 of the Revised Code, regardless of whether the person at the time of the transportation or possession as described in this division is the operator of or a passenger in the motor vehicle.

(E) No person who has been issued a license or temporary emergency license to carry a concealed handgun under section 2923.125 or 2923.1213 of the Revised Code

or a license to carry a concealed handgun that was issued to the person by another state with which the attorney general has entered into a reciprocity agreement under section 109.69 of the Revised Code, who is the driver or an occupant of a motor vehicle that is stopped as a result of a traffic stop or a stop for another law enforcement purpose or is the driver or an occupant of a commercial motor vehicle that is stopped by an employee of the motor carrier enforcement unit for the purposes defined in section 5503.34 of the Revised Code, and who is transporting or has a loaded handgun in the motor vehicle or commercial motor vehicle in any manner, shall do any of the following :

(1) Fail to promptly inform any law enforcement officer who approaches the vehicle while stopped that the person has been issued a license or temporary emergency license to carry a concealed handgun and that the person then possesses or has a loaded handgun in the motor vehicle;

(2) Fail to promptly inform the employee of the unit who approaches the vehicle while stopped that the person has been issued a license or temporary emergency license to carry a concealed handgun and that the person then possesses or has a loaded handgun in the commercial motor vehicle

;

(3) Knowingly fail to remain in the motor vehicle while stopped or knowingly fail to keep the person’s hands in plain sight at any time after any law enforcement officer begins approaching the person while stopped and before the law enforcement officer leaves, unless the failure is pursuant to and in accordance with directions given by a law enforcement officer;

(4) Knowingly have contact with the loaded handgun by touching it with the person’s hands or fingers in the motor vehicle at any time after the law enforcement officer begins approaching and before the law enforcement officer leaves, unless the person removes, attempts to remove, grasps, holds, or has contact with the loaded handgun pursuant to and in accordance with directions given by the law enforcement officer;

(5) Knowingly disregard or fail to comply with any lawful order of any law enforcement officer given while the motor vehicle is stopped, including, but not limited to, a specific order to the person to keep the person’s hands in plain sight.

(F)(1) Divisions (A), (B), (C), and (E) of this section do not apply to any of the following:

(a) An officer, agent, or employee of this or any other state or the United States, or a law enforcement officer, when authorized to carry or have loaded or accessible firearms in motor vehicles and acting within the scope of the officer’s, agent’s, or employee’s duties;

(b) Any person who is employed in this state, who is authorized to carry or have loaded or accessible firearms in motor vehicles, and who is subject to and in compliance with the requirements of section 109.801 of the Revised Code, unless the appointing authority of the person has expressly specified that the exemption provided in division (F)(1)(b) of this section does not apply to the person.

(2) Division (A) of this section does not apply to a person if all of the following circumstances apply:

(a) The person discharges a firearm from a motor vehicle at a coyote or groundhog, the discharge is not during the deer gun hunting season as set by the chief of the division of wildlife of the department of natural resources, and the discharge at the coyote or groundhog, but for the operation of this section, is lawful.

(b) The motor vehicle from which the person discharges the firearm is on real property that is located in an unincorporated area of a township and that either is zoned for agriculture or is used for agriculture.

(c) The person owns the real property described in division (F)(2)(b) of this section, is the spouse or a child of another person who owns that real property, is a tenant of another person who owns that real property, or is the spouse or a child of a tenant of another person who owns that real property.

(d) The person does not discharge the firearm in any of the following manners:

(i) While under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse;

(ii) In the direction of a street, highway, or other public or private property used by the public for vehicular traffic or parking;

(iii) At or into an occupied structure that is a permanent or temporary habitation;

(iv) In the commission of any violation of law, including, but not limited to, a felony that includes, as an essential element, purposely or knowingly causing or attempting to cause the death of or physical harm to another and that was committed by discharging a firearm from a motor vehicle.

(3) Division (A) of this section does not apply to a person if all of the following apply:

(a) The person possesses a valid electric-powered all-purpose vehicle permit issued under section 1533.103 of the Revised Code by the chief of the division of wildlife.

(b) The person discharges a firearm at a wild quadruped or game bird as defined in section 1531.01 of the Revised Code during the open hunting season for the applicable wild quadruped or game bird.

(c) The person discharges a firearm from a stationary electric-powered all-purpose vehicle as defined in section 1531.01 of the Revised Code or a motor vehicle that is parked on a road that is owned or administered by the division of wildlife, provided that the road is identified by an electric-powered all-purpose vehicle sign.

[jslacker]

Why did you post this Jaal?

[scampbell3]

Apparently jaal4 had a reason, it just did not actually make it into the post....oh well.

[Lascivious1]

)
(B) No person shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle.

I'm stuck on this one. the way it is written has me mixed up. i know i can carry a loaded firearm in my car as long as it is in plain view.

So, why after reading this law 5 times it still seams to say to me i cant do this?
Can someone spell this out in dummy terms.

Is it saying i cant have a loaded firearm in the car if it is not in reaching distance for me to grab when leaving my car?

[astro_wanabe]

)
(B) No person shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle.

I'm stuck on this one. the way it is written has me mixed up. i know i can carry a loaded firearm in my car as long as it is in plain view.

So, why after reading this law 5 times it still seams to say to me i cant do this?
Can someone spell this out in dummy terms.

Is it saying i cant have a loaded firearm in the car if it is not in reaching distance for me to grab when leaving my car?

Unless you plan on visiting Ohio don't worry about it. I recognize what jaal4 posted as Ohio's Revised Code (note the requirement for notifying during a traffic stop, which has been a source of contention especially since the Officer Harless incident, and which doesn't exist in Delaware's code). It has nothing at all to do with Delaware, and I recommend an admin either get jaal4 to clarify his post or delete it to avoid further confusion.