Criminal Law Blog

Gant Reloaded: Search “Incident to” a Subsequent Arrest


United States v. David D. Lewis (en banc) (decided September 29, 2016)

Players: Chief Judge Washington, Associate Judges Glickman, Fisher, Blackburne-Rigsby, Thompson, Beckwith, Easterly, and McLeese.  Majority opinion by Judge McLeese, joined by Judges Glickman, Fisher, Blackburne-Rigsby, Thompson, and McLeese.  Dissent by Judge Beckwith, joined by Chief Judge Washington and Judge Easterly.  PDS for Mr. Lewis.  Trial Judge: Robert I. Richter.

Facts: Officer Michael Alto followed David Lewis’s car to a parking spot in Northwest Washington, D.C., after noting a broken headlight and determining that Mr. Lewis’s license was suspended.  When Mr. Lewis pulled into the spot, Officer Alto pulled up and asked for Mr. Lewis’s license and registration.  Mr. Lewis opened the car door, allowing Officer Alto to see a half-empty bottle of Patrón tequila in the center console.  Mr. Lewis’s passenger, Brittney Gibbs, said that the bottle was hers.  Ms. Gibbs brought the bottle to Officer Alto at the officer’s request.  Officer Alto then placed Mr. Lewis in handcuffs.  Neither Mr. Lewis nor Ms. Gibbs smelled of alcohol. 

When Officer Brown arrived, Officer Alto instructed her to search the car.  The officers later testified that their purpose was to uncover further proof that an occupant possessed an open container of alcohol and to ensure that the car was contraband- and alcohol-free, in case they let Ms. Gibbs drive it away.  When Officer Brown opened the driver-side door, she smelled marijuana and found a cup containing an alcohol-smelling liquid on the front passenger seat.  Ms. Gibbs said that the cup was hers.  Officer Brown also found a bag in the back seat that contained a loaded handgun and a box of ammunition.  Officer Brown then placed Ms. Gibbs under arrest. 

Ms. Gibbs was charged with possessing the open container of alcohol and the marijuana later found on her person.  Mr. Lewis was charged with carrying a pistol without a license, possession of an unregistered firearm and ammunition, and operating a vehicle with a suspended license.  The trial court suppressed the gun, ammunition, and marijuana, finding the search of Mr. Lewis’s car unreasonable. 

Issue: Whether the search of Mr. Lewis’s car was a lawful search incident to Ms. Gibbs’s arrest, even though the police did not decide to arrest her until after the search was complete.

Holding: Yes. Under Arizona v. Gant, 556 U.S. 332 (2009), the search of a car for evidence is lawful if: (a) the police have probable cause to arrest for an offense; (b) the suspect recently occupied a vehicle; (c) the police have reasonable, articulable suspicion to believe that the vehicle contains evidence of the offense; (d) at the time of the search, the police have not released the suspect or issued the suspect a citation; and (e) the suspect’s formal arrest follows quickly on the heels of the search.

A Gant search may be lawful even if it precedes arrest.  In Rawlings v. Kentucky, the Supreme Court said “[w]here formal arrest follow[s] quickly on the heels of a challenged search of [a supect’s] person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”  448 U.S. 98, 111 (1980).  Lower courts have applied this statement broadly, and it is now “deeply entrenched in the law.”  Even before Rawlings, D.C. adopted a rule whereby search or seizure could precede arrest, provided the officer already had probable cause to arrest.  SeeWaters v. United States, 311 A.2d 835, 836 (D.C. 1973) (citing Bailey v. United States, 389 F.2d 305, 207 (1967)).

Mr. Lewis’s proposal to limit Gant and Rawlings to searches conducted when an arrest is already under way is foreclosed by Supreme Court cases that prohibit inquiry into an officer’s subjective intent.  The legality of a Gant search must depend on objective circumstances, not whether an officer subjectively intends to arrest.  Knowles v. Iowa, 525 U.S. 113 (1998) does not contradict this reasoning, as it relied on objective circumstances — (1) the issuance of a pre-search citation and (2) the fact that no further evidence of speeding could have been found in Knowles’s car.

Of Note: Under the rule announced in this opinion, police wield great discretion to search a car where they have probable cause to believe a recent occupant has committed an arrestable offense.  Advocates should therefore be mindful of codified restrictions on the power to arrest, which can change quickly. See, e.g., D.C. Code 23-581.

While the Court finds that subjective intent cannot be relevant to the validity of a Gant search, see Slip Op. at 16-18, courts have found subjective intent relevant to other Fourth Amendment inquiries—for instance, whether an officer has acted in “flagrant disregard” for the limits of a search warrant; see, e.g., United States v. Heldt, 668 F.2d 1238, 1268 (D.C. Cir. 1981) (per curiam), cert. denied,456 U.S. 926 (1982); United States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978) (Kennedy, J.); State v. Valenzuela, 536 A.2d 1252, 1267 (1987) (Souter, J.), cert. denied, 485 U.S. 1008 (1988); and whether a false statement in a warrant affidavit was made intentionally or with reckless disregard for truth under Franks v. Delaware, 438 U.S. 154 (1978); see, e.g., Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (1997). As the opinion recognizes, motive to search remains a factor in evaluating the legality of administrative and special needs searches.  See Slip. Op. at 16-17.  Advocates should continue to insist upon the relevance of motive and/or subjective intent in these circumstances.  WC

See the opinion and dissent here.