However, working police officers (unlike justices of the Supreme Court) must constantly and quickly assess unpredictable real-world situations where split-second choices not only could spell trouble for a criminal prosecution but might also threaten personal survival. You do not have the luxury of indulging in academic examinations of the reasoning fallacies committed by the courts. Your need is for understandable rules that you can apply on the street. Although Gant has changed the rules and left many unanswered questions, at least three aspects of the ruling seem to be discernible.
(1) You may still search a vehicle incident to arrest if the arrestee is not handcuffed and is within "reaching distance" of the passenger compartment of the vehicle. Obviously, this option is limited to situations where the person is arrested for a non-violent offense and you have no reason to believe he is armed or dangerous. Presumably, a back-up officer could watch an uncuffed arrestee (who might be seated on the curb next to the passenger door with his hands on his knees) while another officer completed the search. Of course, this technique should never be used at the risk of officer safety.
(2) You may still search a vehicle incident to arrest after securing a prisoner if the arrest is for the kind of crime that makes it reasonable to believe evidence of the offense may be in the vehicle. Examples could include driving while impaired, narcotics offenses, robbery, theft, burglary or drive-by shooting.
(3) You may still search within the scope of other justifiable exceptions to the warrant requirement, as established in other Supreme Court decisions such as:
Consent (Ohio v. Robinette)
- Probation or parole searches (U.S. v. Knights)
Officer safety searches (Michigan v. Long)
Public safety searches (Cady v. Dombrowski)
Impound inventory (Colorado v. Bertine)
Community caretaking (South Dakota v. Opperman)
Probable cause (U.S. v. Ross)
In footnote 11 of the Gant opinion, the majority noted that since officers had been trained to follow the rulings of Belton and Thornton prior to April 21, 2009, they should not be subject to civil liability for searches conducted before that date in reliance on established law. After that date, however, officers and agencies could incur liability for vehicle searches incident to arrest that do not fall within the Gant guidelines. Because law enforcement training in most U.S. jurisdictions has long led officers to believe they could first secure any arrestee and then search the passenger compartment of his vehicle, it is important for all departments to ensure retraining based on Gant.
Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 11 books, including "Courtroom Survival, The Officer's Guide to Better Testimony."