Thursday, October 15, 2009

Post-Arizona v. Gant Vehicle Search

State v. Petrie, no. 08-1841 (October 7, 2009).

A Polk County deputy observed a vehicle making a turn without signalling and stray across the center line and the fog line. He initiated a stop, and while doing so noticed the driver reaching down along the center console. The driver was patted down and placed in the squad car.

The deputy returned to the passenger side of the vehicle to talk to the passenger and saw a partially open briefcase alongside the console. The briefcase was inspected and contained methamphetamine, syringes and scales. Petrie, the driver, was charged with possession with intent, tax stamp violation, and possession of marijuana.

Petrie moved to suppress the evidence of the search. At hearing the deputy stated that he was concerned about a weapon because of the furtive movements the driver made and wanted to make sure the passenger could not access a weapon while he was questioning the driver. The passenger testified that the briefcase was locked and the windows were tinted such that nobody could see what was going on.

The court denied Petrie's motion and it proceeded to trial on the minutes. Petrie was convicted and received a long sentence because of his prior convictions.

Petrie argued that furtive movements, without more, are insufficient to trigger the warrant exception. The court reasoned that the limited search conducted by the deputy was justified by the belief that the driver could have been reaching for or concealing a weapon.

Now the Gant stuff.

The court notes that Petrie was secured in the squad car when the search took place and thus did not have access-which was what Arizona v. Gant was all about. However, danger can emanate from the passenger as well as the driver. Gant teaches that a search of the passenger compartment can be searched when there is reasonable suspicion that an individual, whether or not the arrestee , could access the vehicle to gain immediate control of weapons.


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