Earlier this week, the U.S. Supreme Court, in Arizona v. Gant, ruled that police "may only search a vehicle incident to a recent occupant's arrest if the arrestee is within reaching distance of the passenger compartment at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest." This effectively over-rules New York v. Belton, decided in 1981, which permitted unrestricted searches of vehicles so long as the search was contemporaneous to the arrest of the driver. Belton justified such searches as being incident to arrest and necessary to prevent destruction of evidence and for officer safety.

 

Rodney Gant was arrested for a traffic offense, handcuffed and secured in the back seat of a police vehicle. His car was searched and drugs found in a jacket on the backseat. He moved to suppress the drugs, claiming that since the jacket was outside his reach, its search could not be justified as incident to arrest. The state's relied on Belton's bright line rule. The Arizona Supreme Court agreed with the defendant's argument, finding no justification for the search.

 

The U.S. Supreme Court also agreed with Rodney Gant, holding that once an arrestee is securely in custody, the police may not search his car incident to arrest unless it is reasonable to believe the vehicle contains evidence of the offense of arrest. In cases similar to Gant's, and absent consent, there will never be a permissible search as there is no additional evidence to be found of "the offense of arrest" (driving with an invalid license). Something more will be required to justify a policeman's search of the vehicle. Justice Scalia, concurring, (and I) wonder whether the Court has unwittingly created a situation where police will avoid placing an arrestee in handcuffs in order to avoid Gant and justify searches of arrestees' cars. What threat does this pose to officers, arrestees and passenger safety? (huge) Is this acceptable? (no) How much litigation will this spawn? (a lot)

 

Bottom line: Failing to establish a clear rule to follow in an arrest situation which repeats itself thousands of times daily, the reach of Gant will not be defined for years and only after traveling many divergent paths through the state and federal appellate courts. Justice Scalia is correct; more guidance is necessary.

 

Until next time,

In a recent memo, the IRS establishes a procedure offering partial amnesty for taxpayers with undisclosed foreign bank accounts.  The deadline to apply for the amnesty is September, 23, 2009.  Particular attention should be paid to this offer in view of recent disclosures that Swiss Bank UBS holds about 52,000 secret accounts for U.S. persons worth an estimated $14.8 billion, and the IRS is seeking disclosure of this information. To date, UBS has refused to disclose, claiming to do so violates Swiss law and would subject it to criminal and civil penalties. A federal district judge in Miami is yet to rule on the enforceability of the IRS' summons, but my guess, based on other things happening with UBS, is that the IRS will get the information and come calling on those who failed to report the accounts or take advantage of the amnesty.