Ex Post Handcuffs, Take 2: Sixth Circuit Opinion Also Shows Immediate Impact Of Arizona v. Gant

Yesterday, I did a post about the immediate impact of the United States Supreme Court’s recent opinion in Arizona v. Gant, 129 S.Ct. 1710 (2009), and its holding that officers cannot search the passenger compartment of an arrestee’s vehicle incident to the arrest “after the arrestee has been secured and cannot access the interior of the vehicle.” In that post, I cited the Eighth Circuit’s opinion in United States v. Hraskey, 2009 WL 1606642 (8th Cir. 2009), as “[t]he first o[pinion] that I have seen at the federal appellate level” striking down such a search in the wake of Arizona v. Gant. Well, after a little more searching, I actually came across the Sixth Circuit’s opinion in United States v. Lopez, 2009 WL 1507294 (6th Cir. 2009), which did the same about a week earlier.

In Lopez, 

On September 27, 2006, Kentucky State Police Trooper Tommy Cromer clocked [Juan] Lopez driving 106 miles per hour on I-75 in Rockcastle County, Kentucky. Cromer gave chase and eventually arrested Lopez for reckless driving. After securing Lopez in the back of the patrol car, Cromer searched the passenger area of Lopez’s car. Under the driver’s seat, Cromer found a brake-shoe box containing 73 grams of crack cocaine, a set of digital scales, and a Glock .40 caliber handgun loaded with ten rounds of ammunition.

Under the way basically all federal courts had interpreted the Supreme Court’s opinion(s) in New York v. Belton, 453 U.S. 454 (1981), this search would have been constitutional because they read New York v. Belton as holding that  “the interior of a car is always within the immediate control of an arrestee who has recently been in the car,” making it searchable as an incident to the arrestee’s lawful arrest.

Of course, that all changed with the Supreme Court’s recent opinion in Arizona v. Gant. And indeed, after citing the language Gant included in the introduction to this post, the Sixth Circuit held that

That standard is not met here. Lopez was not within reaching distance of his vehicle’s passenger compartment at the time of the search, but was instead handcuffed in the back seat of the patrol car by then. There was no reason to think that the vehicle contained evidence of the offense of arrest, since that offense was reckless driving. The search of Lopez’s vehicle, therefore, violated the Fourth Amendment as interpreted in Gant.   

As I noted in my post yesterday, I expect to see many such decisions in the near future, and it will be interesting to see how the police modify their behavior in the wake of Gant.