Question: Can a peace officer search a suspect’s car incident to an arrest?
Quick answer: It depends. If the arrested suspect was secured and not within reaching distance of the car’s interior, then you cannot justify a warrantless search of the car under the search incident to arrest exception.
Facts: About 1 a.m., a police officer on routine traffic patrol passed a car that did not dim its bright lights as it passed. The officer made a U-turn and began to follow the car. During that time, he watched both the driver and passenger lean over toward the floor of the car, making him think drugs or contraband were in the vehicle. The officer never turned on his siren or police lights, but the car began to flag the officer down. He drove to a nearby parking lot, with the car following. After backup arrived, the officers determined that the passenger, Dejuan McCraney, owned the vehicle, and that both McCraney and the driver had suspended licenses.
The first officer told the two men that he couldn’t let them drive the vehicle, but allowed McCraney to call his aunt to pick him up and drive his car. Minutes later, after five other police officers showed up, the first officer arrested McCraney for unlawful entrustment and patted him down for weapons. The officer did not handcuff McCraney or the driver, but had the two stand two or three feet from the car’s rear bumper, with three officers standing around them. Police found a gun under the driver’s seat, so they handcuffed McCraney and took him away in a cruiser. The car was later impounded and towed. McCraney was charged with being a felon in possession of a firearm.
Why the case is important: This case highlights the nuances of search and seizure law. The Sixth Circuit held that the peace officers’ search was unconstitutional because it did not meet one of the two exemptions for a vehicle search “incident to a lawful arrest”: (1) where the recent occupant is unsecured and within reaching distance of inside the car at the time of the search or (2) where it is reasonable for officers to believe that the vehicle contains evidence of the arresting offense.
Here, the underlying offense was wrongful entrustment, and it would be unreasonable to believe evidence of wrongful entrustment was on the floor of the car. And, at the time of the arrest, McCraney and the car’s driver were not handcuffed or secured in the back of a patrol car, but were standing two to three feet away from the car while surrounded by three officers. Under these facts, McCraney was not “within reaching distance” of his car, so the officers’ search was not justified incident to arrest.
The court also held that there was no reasonable suspicion to Terry frisk McCraney’s car for dangerous weapons because, even though they twice witnessed McCraney and the driver lean forward in the vehicle, the arresting officer admitted that he would have let McCraney drive away if his license weren’t suspended. McCraney’s unlawful entrustment arrest also didn’t provide any reasonable suspicion that McCraney was dangerous.
Keep in mind: The search incident to arrest warrant exception is narrower than ever before. A warrantless and suspicionless search of a vehicle still can happen either shortly before or after a suspect’s arrest. But the constitutionality of that search now factors on whether the suspect was a recent occupant of the vehicle and if, during the search, was still within reaching distance of the car’s interior. This scenario is rare, so justifying a search under the search incident to arrest exception may not be as readily available to you.
to read the entire opinion.