Searches Incident to Arrest

The Gant decision may be a bit afield of the issue of DUI, but it is important that anyone being arrested for a traffic offense be aware of their rights against illegal searches. To summarize Gant, the US Supreme Court limited an arresting officer’s right to search the vehicle when 1) the occupants are outside the vehicle and no longer have access to the vehicle and 2) there is no indication that the search was initiated to preserve evidence of the offense for which the offender was arrested.

A recent Ohio decision used the Gant decision in determining an officer’s right to search even if the subject of the arrest was other than a traffic violation. The case, State v. Gilbert, 184 Ohio App.3d 642 involved the arrest of the driver and his passengers. The automobile was stopped for a traffic offense. A warrant search found that the driver was driving under a suspended license and the front-seat passenger had an outstanding warrant for robbery. All three occupants were vacated from the car and the arresting officer proceeded to make a search of the vehicle.

The syllabus stated the following:

“Police may search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

The court’s opinion expanded on this point by stating:

“...the search is not justified under either branch of the standard established in Gant. When the search occurred...and all occupants of the car had been removed and were under police control. Thus, at the time of the search, no occupant had access to, or was within reaching distance of, the vehicle's passenger compartment. There is also no indication that the search was initiated to discover evidence relevant either to the crime that had been committed by the driver, or the crime for which there was an outstanding warrant to arrest the front-seat passenger. A passenger in the front seat had also been arrested on an outstanding warrant for robbery, but there is no indication that the officers were searching for evidence relevant to that crime, or that evidence was likely to be present relevant to that crime, which would have occurred some time in the past, since a warrant had been issued.”

A major debate is raging in Ohio relative to the right of an officer to search the vehicle after an arrest as a result of the Gant decision. The Gilbert case, I believe, further defines the limits of a police office’s right to search a vehicle for ANY reason. It appears Gilbert estops the officer from conducting an “inventory” search subsequent to arrest. Unless the search can be justified in furtherance of a search to accumulate evidence of the crime for which the accused is being charged, a search warrant must be obtained prior to any search.