Changing Lanes: New Directions in Vehicle Search Law The Gant Opinion & Inventory Law

1. Changing Lanes: New Directions in Vehicle Search LawThe Gant Opinion & Inventory Law Joseph Hoelscher (210) 378-5639 Blakely Mohr (210) 422-0797 123 S. Flores San Antonio, Texas 78204

2. Arizona v. Gant Facts • Rodney Gant pulled up in his car at a crime scene. • Officers recognized him, knew that his license was suspended, and knew that he had a warrant for driving on a suspended license • Gant parks, exits, closes door, and gets arrested 10-12 feet from vehicle • He’s handcuffed and placed in the back of a cruiser • THEN the officers search his car, finding coke in a jacket pocket

3. Posture • Gant argues to suppress the coke because he posed no danger to the officers, nor to any evidence, once he was secured • Officer admits he searched, “Because the law says we can do it.” • Az Supreme Court held that Belton doesn’t apply when a scene has been secured • The dissenting justices followed Belton but noted that it “probably merits reconsideration” and asked for cert. • USSC agreed

4. History of Vehicle Search Law “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 (1967)

5. History of Vehicle Search Law • Among the exceptions to the warrant requirement is a search incident to a lawful arrest. See Weeks v. United States, 232 U. S. 383, 392 (1914). • The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. See United States v. Robinson, 414 U. S. 218, 230–234 (1973); Chimel v. California, 395 U. S. 752 (1969)

6. History of Vehicle Search Law • search incident to arrest may only include “the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”Chimel, 395 U. S., at 763. • New York v. Belton applied Chimel to the vehicle search • Thornton v. United States, 541 U. S. 615 (2004) – included passengers

7. Belton: Holding • When an officer lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” and any containers therein. New York v. Belton, 453 U. S. 454 (1981). • assumed that articles inside the passenger compartment of a vehicle are generally within “the area into which an arrestee might reach.”

8. Belton: Facts • A single officer stops a car with four occupants for speeding • He notices a smell of marijuana and an envelope marked “Supergold” • Occupants are arrested and separated on the roadside, but not handcuffed • He searches the vehicle and finds coke in the pocket of a jacket in the back seat

9. What’s Different in Gant? • Gant had already exited the vehicle • Car door was closed • Gant was outnumbered by the cops • He was frisked • Handcuffed • Placed in the back of a cruiser • Arrested for a traffic violation

10. Gant Holding • 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 (Chimel) • Police may also search when it’s “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” (Thornton v. United States, 541 U. S. 615 (2004)

11. 1st Holding: Grabbing Distance • Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains. Cf. 3 W. LaFave, Search and Seizure §7.1(c), p. 525 (4th ed. 2004)

12. 2nd Holding: Relevant Evidence • the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein • when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence

13. Other Ways to Search • When reasonable suspicion that someone is “dangerous” and may access vehicle to “gain immediate control of weapons” Michigan v. Long, 463 U. S. 1032 (1983) • If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U. S. 798, 820–821 (1982) • Protective sweep allowed if reasonable suspicion that a dangerous person is hiding Maryland v. Buie, 494 U. S. 325, 334 (1990) • Inventory Searches – when driver arrested

14. Limits • If some occupants are not arrested, they may still pose a threat • Search ok when non-occupants create a threat to safety or evidence • Why rs not pc? • Why only passenger compartment?

15. 1L Law • US & Tex Const. both guarantee the right to be secure from unreasonable searches & seizures. • Texas Code of Crim. Proc. Art. 38.23(a) Forbids any evidence obtained in violation of such guarantees to be admitted against an accused 1L Law 1L Law

16. 1L Law • Warrantless searches and seizures are per se unreasonable. • However, certain exceptions have developed over the years to the warrant requirement under federal and state law allow warrantless searches.

17. 1L Law • Categories of warrantless searches related to arrests & detentions of persons and things: • (1) Searches Incident to Arrest • (2) Searches of Objects Pursuant to Reasonable Suspicion (e.g. Dog Sniff) • (3) Inventory Searches

18. Need to Know Case Law for theWarrantless Inventory Search • Florida v. Wells, 495 U.S. 1 (1990) • Must be conducted pursuant to “standardized criteria” or “established routine”. • Colorado v. Bertine, 479 U.S. 367 (1987) • No bright-line rule: “Reasonable police regulations relating to inventory procedures administered in good faith satisfy the 4AM, even though courts might…be able to devise equally reasonable rules requiring a different procedure.” • Police Discretion Okay: “exercise of police discretion so long as that discretion is exercised on the basis of something other than suspicion of evidence of criminal activity”

19. Need to Know Case Law for theWarrantless Inventory Search • Benavides v. State, 600 S.W.2d 809 (Tex. Crim. App. 1980) • Provides laundry list of situations where impoundment of a vehicle would likely be permissible • Advises that a regulation mandating impoundment in any situation where an individual is arrested is too broad • Rodriguez v. State, 641 S.W.2d 955 (Tex. App-Amarillo 1982) • Impoundment and Search must be carefully examined & narrowly confined in each case. • Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) • Stated there was no difference b/w the protections of Article 1, sec. 9 of the Texas Constitution and the 4Am

20. Inventory Definition & Purpose • In a valid inventory search, after lawfully taking custody of property, police may conduct a warrantless search of the property to satisfy (3) three purposes: • (1) To protect the owner’s property while it is in custody • (2) To protect the police against claims of stolen property • (3) To protect the police from potential danger

21. Inventory in the Wake of Gant • Search Incident to Arrest (SIA) was all the buzz! • Now: Cops won’t be able to laundry list!!! • But: Everyone is going to get towed!!!

22. Challenging Impoundment & Inventory • Begin with the end in mind! • Standard of Review: • Remember that the Court of Appeals get to review de novo those issues where the trial court may have applied the law incorrectly to the facts. • Preserve error and object correctly!

23. Challenging Impoundment & Inventory • Burden of Proof • The BOP will switch to the State when you properly raise your objection to the search and/or seizure. • The State then has the burden to show that the police followed the proper procedures. • Yaws v. State, 38 S.W.3d 720, 723 (Tex. App.-Texarkana 2001, pet. ref’d). • Failure by the State to show evidence that the search was conducted pursuant to the police department’s procedure will invalidate the search.

24. Challenging Impoundment & Inventory • Develop your attack – Case law is wibbly-wabbly • Courts wants to sway from a bright-line rule impeding authority, but they also don’t want to create endless impound & inventory searches • This is a great area to make some wakes in the law on appeal!

25. Challenging Impoundment & Inventory • Your Best bet – Argue Pretext • Establish Bad Faith • Show Inconsistencies with the Officer’s testimony • Ask everything…inventory searches are very fact driven • Was an inventory actually done? • Was the inventory done according to procedure? • What contents were actually inventoried?

26. 10 Step Checklist for Litigating “Pretext Impoundment” Making no mistakes is what establishes victory, For it means conquering an enemy that is already defeated. ~Sun-tzu 10 Step Cheklist by Russell D. Hunt, Jr. "Understanding & Challenging Inventory Searches", Voice for the Defense, Vol. 38 No. 4 (May 2009)

27. The Ten Steps Applied San Antonio Police Department

28. Step 1Are there Policy Limitations? • Were there standardized criteria for an inventory search to limit the officer’s discretion in deciding whether, when, & how to conduct the purported inventory? • If no, there may as well be no policy at all.

29. Step 1Are there Policy Limitations? • Standardized Criteria: • San Antonio Police Dep’t General Manual • Procedure 502. “Warrantless, Arrests, Searches & Seizures” • Procedure 606. “Impounding Property” • Procedure 607. “Impounding Vehicles” • YES WE HAVE SOME POLICY!

30. Step 2Determine Accuracy & Uniformity • Can the officer articulate the standardized criteriaaccurately or in detail? • Do the standardized criteria described by other officers match those claimed by the arresting officer?

31. Step 2Determine Accuracy & Uniformity • SAPD are trained to articulate uniform policies… • Proc. 502(.01): • These guidelines are designed to assist officers of SAPD in determining how & when it is appropriate to enforce the law through warrantless arrests, searches & seizures… • Proc. 607(.01): • This procedure establishes guidelines for the impoundment of motor vehicles… • Proc. 606(.01)(B): • The confiscatory & custodial responsibilities of SAPD are used as a basis for ANY impoundment of property

32. Step 3Is Policy Written or Oral? • If the policy is in writing, where is it? • Is there a formalized, written policy manual?

33. Step 3Is Policy Written or Oral? • Bexar County & SAPD have written policy… • SAPD – Newly updated…734 PAGES!!! • Available on CD for $1.00 through Records Request /w fax to (210)207-4262 • Bexar Co. Sheriff’s – Pain in the Ass! • Mandate a Freedom of Info. Act Request • But…policies identical…Chiefs & Deputies almost all retired SAPD

34. Step 4If the Policy is oral … • If the policy is ORAL, describe how this custom & usage came into being and who the oral historians are who are responsible for it. • Consider subpoenaing several officers and getting them each to describe the policy.

35. Step 4If the Policy is oral … • WE HAVE WRITTEN POLICY…YAY!

36. Step 5Determine if a Link Exists! • Is there any relationship between the arrest or impoundment and the need for an inventory? • E.g. Does the inventory stand on its own and not as a search incident to arrest? • We now know that searches incident to arrest are much more limited than they were before Gant!!!

37. Step 5Determine if a Link Exists! • 607(.06)(A)(1)-(2) • Officers submit a written report, showing justification for impoundment, when impounding ANY VEHICLE…* • Provides for a couple exceptions • Copies of the report are forwarded to: • The Motor Vehicle Theft Detail AND • Municipal Court, if applicable, attached to Order of Impoundment • Subpoenaing these records may show that no need or justification existed for an inventory!

38. Step 6Find the Inventory Form • Does the agency have an inventory form? • If so, was it used? • IF NOT, the argument is that this WAS NOT an inventory search, but an investigative search

39. Step 6Find the Inventory Form • YES! Look to 607(.06) Officer’s Responsibilities • Proc. 607(.06)(C)(1), (4) • Officers WILL complete the Towing Service Record, listing any damage noted on vehicle. • Officers WILL use Property Receipts for ALL impounded property…[and are] REQUIRED to complete SAPD Form No. 113, Receipt for Property, for any property received from an individual

40. Step 7Determine if Defendant Participated in Inventory Process • Was any list made? • Did the Defendant sign the inventory sheet to show he knew what was inventoried? • If the officer’s theory is that he wants to protect defendant’s property wouldn’t it be reasonable to confirm with Defendant that all the property he expected was actually inventoried?

41. Step 7Determine if Defendant Participated in Inventory Process • 607(.06)(C)(4) • Property Receipts will be used for all impounded property, in accordance w/ 606 • 606(.06)(B)(1)(a)-(c) • When impounding property…will complete…SAPD Form No. 113 Receipt for Property, in triplicate, for any property received or confiscated from an individual. • SAPD Form No. 113 is routed as (1) an Original to Records Unit; (2) A copy to the person whom the property is taken; and (3) A copy to the appropriate investigative follow-up unit.

42. Step 8Objective Goals of the Inventory? • How was the inventory conducted? • The thoroughness or lack of detail in performing the inventory can give clues as to whether it was really an investigative search. • Likewise, if the inventory essentially ends when the sough-after object is found, it is a criminal evidentiary search !!! • The goal of the search (evidence collection) had been reached so the search could end at that point.

43. Step 8Objective Goals of the Inventory? • 607(.15) Inventory & Disposition of Property From Impounded Vehicles • (A) Officers Inventory all impounded vehicles for any items of personal property. An inventory is a process for locating personal property so it can be protectedwhile in the custody of SAPD • (B) An inventory is limited to places where a person ordinarily would store or leave items of personal property, such as: • (1) Passenger Compartment, (2) Trunk, if key is available; and, (3) Any open container.

44. Step 8Objective Goals of the Inventory? • 607(.15) Inventory & Disposition of Property From Impounded Vehicles • (C) All personal property found during an inventory of a vehicle is listed in the details of a written report. The personal property is listed according to the location where it was found (e.g. under front seat, passenger compartment, trunk, etc.) • (D) All personal property found during an inventory of a vehicle is placed in the Property Room…(note exceptions Locked & Bulky)

45. Step 8Objective Goals of the Inventory?

46. Step 9Subjective Intent of Officer… • What was the true motivation for the purported inventory? • This can be shown circumstantially by: • How the search was conducted OR • How the officer referred to the inventory • If police report calls the search “incident to arrest”, it’s difficult for the officer to argue that it was an inventory search.

47. Step 9Subjective Intent of Officer… • Determine any flaws with his/her reporting • Many reports…look to language in writing… • Police Report • Accident Report, if any. • Mandatory Written Reports showing justification for impounding the vehicle (Proc. 607(.06)(A)) • Towing Service Record (TSR Form) • Receipt for Property Duplicates (SAPD Form No. 113) • Impounded Vehicle Release (SAPD Form No. 13)

48. Step 9Subjective Intent of Officer… • Lock the officer down to his words! • Inventory Searches = More Paperwork! • Officers = Hate Paperwork! • DO NOT LET THE GOVERNMENT HAVE A WEASEL IN THIS HUNT!

49. Step 10Flip the Burden • Inventories are warrantless searches presumed invalid under the Fourth Amendment, so… • THE PROSECUTION HAS THE BURDEN OF PROOF TO SUSTAIN THEM !!!

50. Step 10Flip the Burden • Argue the SAPD Policies and Procedures… • Take everything you discovered in Steps 1-9 and destroy that Officer’s testimony • There isn’t a lot of wiggle room when everything you do is dictated word for word in a Manual.