A great opinion recently came down from the US Supreme Court.  The case is Arizona v. Gant.  What law enforcement officers in West Virginia, and elsewhere love to do is this: they pull someone over for a traffic violation, or even an investigatory stop, and they arrest them for a traffic charge, or for some bogus “obstruction” type charge (i.e., he or she failed to put their hands on the steering wheel despite being ordered to do so).  Basically these arrests are an outright lie and are merely meant to allow the officer to search the vehicle.  And they do.  All the time.  If they don’t find anything incriminating, maybe they let the person go.  But if they do, they take them to jail and collect the evidence.

Well now, according to the US Supreme Court, this is unreasonable and therefore unconstitutional.  The original rationale for a search incident to a lawful arrest is officer safety.  The Court reiterated that and confined this type of search to only that concern.  It is now clear that such searches are not reasonable if the suspect is already handcuffed or otherwise detained in the patrol car.  The Court held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest.  When these justifications are absent, a search of the arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

For the past 28 years, police academies across the country have basically taught that it was proper police procedure to search the vehicle at every arrest of a recent automobile occupant, regardless of whether there was any concern of officer safety.  Now we will see how law enforcement agencies across the country can re-train their officers.

This could also affect a great number of pending cases.  For instance, I have one appeal I am working on right now where this exact scenario occurred, and the conviction almost surely would not have occurred without the evidence seized during the “traffic stop arrest.”  Maybe I will get the first West Virginia case based on Arizona v. Gant to the West Virginia Supreme Court of Appeals….

 – John H. Bryan, West Virginia Attorney.