Last year, the U.S. Supreme Court muddied the waters for motor vehicle searches.
In Arizona v. Gant, the Court announced that the search-incident-to-arrest exception no longer applies to cases where the arrested party has been secured by the police – unless it is reasonable to believe that evidence of the offense upon which the arrest is based might be found in the vehicle.
That was quite an about-face.
Since the Court’s 1981 decision in New York v. Belton, police could generally search a passenger compartment incident to the contemporaneous arrest of an occupant of the vehicle.
Numerous state courts had taken the cue from Belton and formulated bright-line standards to the effect that authority to search a vehicle’s passenger compartment incident to arrest is automatic.
Colorado was no exception.
But that all changed with Gant. And earlier this month the Colorado Supreme Court issued four decisions exploring the contours of motor vehicle searches in the post-Gant world.
In those decisions we have wins for both sides.
For criminal defense lawyers, the Colorado court confirms what is suggested by the Gant decision itself: Vehicle searches in violation of the new standard can’t be salvaged by the good faith exception.
For prosecutors, the court tosses the bone of inventory searches as perhaps a viable alternative to a struck-down search incident to arrest.
In the first case before the Colorado Supreme Court, Grand Junction police stopped Jaime Perez for driving with a broken headlight in 2006.
A quick criminal database search revealed to officers that Perez had a suspended license and an outstanding warrant for his arrest.
So Perez ended up handcuffed in the back seat of a squad car.
In the Belton tradition, officers searched the passenger compartment of the vehicle, discovering a pouch containing 22 baggies of methamphetamine.
According to police, this discovery prompted Perez to confess to possessing and planning to sell the drugs.
On April 21, 2009 – ten weeks after a state appeals court affirmed Perez’s convictions – the U.S. Supreme Court handed down Gant and that changed everything.
The Colorado Supreme Court read Gant as leaving only two scenarios in which police officers may search a vehicle’s passenger compartment after arresting an occupant.
First, police may search a vehicle if the arrested occupant is unsecured and can access the interior of the vehicle.
Second, officers may conduct a search if it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.
Since Perez was handcuffed and secured in the back of a police cruiser at the time his search was conducted, only the second Gant scenario was at issue.
And here the Colorado Supreme Court shed some light on that issue by holding that, “a reasonable belief to conduct such a search exists when there is a ‘degree of articulable suspicion commensurate with that sufficient for limited intrusions like investigatory stops.’”
In Perez’s case, the state couldn’t satisfy that burden.
“The record before us gives no reason to believe that there was any ‘articulable suspicion’ that evidence of a crime relevant to the previously-issued arrest warrant would be found in Perez’s vehicle at the time of arrest,” the court said. (Perez v. Colorado)
So the search of Perez’s car was unlawful under Gant.
The court had one more step to take to complete the gutting of the state’s case against Perez.
In addition to suppressing the drug evidence found in the vehicle, the Colorado high court pulled the old fruit-of-the-poisonous-tree card to strike Perez’s incriminating statements to police.
No good faith exception
So what of all those vehicle searches conducted in accordance with the old Belton standard?
Surely they could be upheld because police acted in good faith reliance on established law?
Of course, the big problem with that argument is that the U.S. Supreme Court hasn’t recognized a good-faith exception to the exclusionary rule for reliance on prior holdings of its own from which it subsequently changed course.
The majority in Gant certainly did not suggest that the good-faith exception would apply when police relied on pre-Gant case law.
As a matter of fact, Justice Samuel Alito in his dissent predicted that the Court’s decision would “cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law.”
And that’s exactly what the Colorado Supreme Court did in its second case on vehicle searches, Colorado v. McCarty.
The state court said that “we are reluctant to expand the good-faith exception to the Supreme Court’s exclusionary rule beyond the limits set by that Court itself.”
In McCarty, police pulled John McCarty over for a minor traffic infraction in 2008, just after he had purchased a drug pipe at an import store.
McCarty faced arrest for failing to produce insurance and after the drug pipe was discovered on his person.
While one officer detained McCarty outside the vehicle, another searched the passenger compartment and discovered a mint tin in the center console containing methamphetamine.
The Colorado Supreme Court applied Gant to suppress the drug evidence found in McCarty’s automobile.
What might raise some eyebrows is the court’s conclusion that the discovery of a drug pipe on McCarty’s didn’t provide reasonable suspicion for a search of the passenger compartment under Gant.
“We conclude that being stopped for a traffic infraction immediately after leaving a suspect import store and being in possession of a recently purchased and still unwrapped and unused ‘pot pipe,’ although sufficient to justify an arrest for possession of drug paraphernalia, is nevertheless insufficient to provide reasonable, articulable suspicion that additional evidence of that offense might be found in the arrestee’s vehicle,” the court said.
Of the Colorado Supreme Court’s four Gant decisions, only one provides much solace for prosecutors.
In Pineda v. Colorado, Aurora police stopped Jose Pineda for a minor traffic violation. For several weeks police had had him under surveillance in a drug trafficking investigation.
Officers arrested Pineda for driving without a license and secured him in a police car.
Police subsequently discovered several bags of heroin hidden in a fake can of deodorant stashed beneath a seat in Pineda’s car.
The Colorado Supreme Court avoided the issue of whether the search of Pineda’s car was valid under Gant by concluding that the heroin had been discovered as the result of a valid inventory search.
“It appears that the officers had few other options under the circumstances. Pineda parked his car in the right-hand lane of a busy avenue. No one was present to take possession of the vehicle, and the officers could not leave it blocking traffic. ….
“Therefore, they took custody of the vehicle and towed it. Not only does this appear reasonable under the circumstances, but departmental policies and procedures also required the officers to take custody of the vehicle and to conduct an inventory search as part of that process,” the court said.
Demonstrating the uphill battles facing prosecutors in the wake of Gant, the Colorado Supreme Court in a fourth case found police had violated the Fourth Amendment when they searched the interior of Stephanie Chamberlain’s car in 2008.
Police stopped Chamberlain for failing to adequately signal before turning.
The stop turned into an arrest when officers determined that Chamberlain had falsely reported her address during a traffic stop two weeks earlier.
With Chamberlain handcuffed in the rear of a patrol car, officers searched the passenger compartment of her vehicle and came up with a baggie containing less than a gram of methamphetamine.
The Colorado Supreme Court agreed that the evidence was properly suppressed under Gant, concluding that there was nothing about the nature of Chamberlain’s false reporting offense that would have justified police searching her vehicle.
“In this case, the district court found that the defendant was arrested for the crime of false reporting as the result of her concession that she no longer lived at the address appearing on the driver’s license she had presented without qualification during an earlier stop. …
“Although it may have been possible to find further evidence in the vehicle, without more it was no more reasonable to believe the defendant’s vehicle might contain additional documentary evidence corroborating her admission than it was reasonable to believe Gant’s vehicle might contain official notice of his suspension,” the court said. (Colorado v. Chamberlain)
- Pat Murphy