5.7.2

• Jurisdiction: Arizona

§ 5.7.2 Search Incident to Arrest – Vehicle

1. General Rule. If an officer arrests an occupant of a vehicle, the officer may search the passenger compartment of that vehicle “contemporaneous with that arrest,” which includes the area that the arrestee “recently occupied.” New York v. Belton, 453 U.S. 454, 462 (1981). A search incident to arrest may precede the actual arrest, as long as the probable cause for the arrest is obtained independently of the search. United States v. Smith, 389 F.3d 944 (9th Cir. 2004).

Once a police officer makes a lawful custodial arrest of an automobile’s occupant, the Fourth Amendment allows the officer to search the vehicle’s passenger compartment as a contemporaneous incident of arrest, even when an officer does not make contact until the person arrested has already left the vehicle. Thornton v. United States, 541 U.S. 615 (2004). See also State v. Dean, 206 Ariz. 158, 166, 76 P.3d 429, 437 (2003) (in pre-Thornton decision, Arizona Supreme Court held that, where the defendant fled from the vehicle into his home, was arrested in the attic 2 ½ hours later, the search incident to arrest of his car was invalid; the court stated that a defendant is a “recent occupant of a vehicle within the limits of the Belton rule when he is arrested in close proximity to the vehicle immediately after the defendant exits the vehicle”).

In Arizona v. Gant, 129 S. Ct. 1710 (2009), the Supreme Court analyzed whether officers must demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a search incident to arrest conducted after the vehicle’s recent occupant has been handcuffed and placed in the police vehicle. The search of a vehicle incident to the arrest of its recent occupant is now governed by a two-part rule. Such a search is permissible if either (1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search; or (2) the officer has reason to believe that the vehicle contains evidence of the offense of arrest. Here, the search failed both prongs. Gant was handcuffed and locked in a patrol car when the officers searched his vehicle, and the officers had no reason to believe that they would find evidence of the crime of arrest - driving on a suspended license - inside Gant’s vehicle. See also State v. Rojers, 216 Ariz. 555, 169 P.3d 651 (App. 2007) (Div. 1) (search of the defendant’s vehicle following his arrest was not justified as a search incident to arrest because he was handcuffed and under another officer’s control when the search occurred; evidence was still lawfully obtained based on inventory search exception); United States v. Maddox, 614 F.3d 1046 (9th Cir. 2010) (“With Maddox handcuffed in the backseat of the patrol car, no possibility of Maddox concealing or destroying the key chain and the items contained therein, and no sighting of weapons or other such threats, Officer Bonney’s search of Maddox’s key chain was not a valid search incident to arrest.”).

2. Recent Occupant. Although the defendant in Belton was a “recent occupant” of the vehicle, the Arizona Supreme Court observed that the Supreme Court did not define “recent occupancy.” In a case where the defendant fled from the...