I'm a bit confused between the automobile exception to a warrant and the search incident to an arrest exception as it relates to automobile searches. Can anyone help me with whether you can still use the automobile exception even if the search incident to arrest exception does not apply?

e.g. if a person is arrested for a traffic violation and put in handcuffs, can the police search the car under the automobile exception if they have probable cause to believe that drugs will be found in the car (even though the search incident to arrest exception would not apply because the arrestee doesn't have access to the car and they were not arrested for drugs)?

Thanks

I think you can still use the automobile exception. My understanding is that, as it applies to automobiles, the search incident to a lawful arrest will only be at issue if there is a search of the vehicle when there is no probable cause, no reason to belive that the arrestee might access the vehcile at the time of the arrest and no reason to belive that the vehcile contains evidence related to the arrest. If there is probable cause, an officer can search the vehcile without procurring a warrant. So, in your example, if the driver is pulled over and arrested for driving recklessly, and during the arrest the officer smells a power marijauna odor in the passanger compartment, the officers may have PC to search the vehicle. But, absent the odor, if the officer makes the arrest and puts the driver in the back seat of his car he probably can't then go ahead and search the vehicle.

Keep this thought in mind everytime you see a crimproc question w/ autos: Autos are very mobile; not as private as homes; and auto stop are extremely dangerous. The Police have a lot of leeway with the stop because of the above reasons.

If a person is arrested in his car, the police may look within the car's interior for weapons. The police may even look with jackets in the back seat. The cop can even search passengers and their belongings.

Whether or not the suspect is arrested next to his car or away from his car, the police may seize the car if the police have PC to believe contraband is within the car or the car itself is contraband.

The police are free to look into the windows of a car and seize any contraband in Plain View or consider the contents within the car as the police formulate PC.

A legit traffic stop can be used a ruse to peek into a car. During a legit traffic stop, the officer may order the driver out of the car. If the officer reasonably believes the drive is armed... the officer may search the driver and the interior of the car (STOP and FRISK)

Even if the police mess it all up (which is hard to do) -- state Fruit from Poisonous Tree... then state exception of INEVITABLE DISCOVERY -- POLICE INVENTORY EXCEPTION (police may inventory the contents of the car if the car is going to be impounded)

Now... apply these to your example. Here's how I would write it.


Issue: Whether the policer performed an illegal search and seizure of the drugs from the suspect's car? No, the police did not.

4th amend.
Fourth Amend. to Const. extended to States through 14th Amend. prohibits the government from unreasonable seraches and seizures. A search and seizure is reasonable if it supported by a properly executed search warrant. A warrant is not needed if the search falls under one the recognized exceptions.

Auto exception

No Warrant is required under the auto exception. Under the auto exception, A police officer with pobable cause may search the likely areas of a suspect's car where the contrand may be found. Proable Cause to believe that contraband can be found within. Pobable Cause is the articuable and trustworthy facts that would make a reasonable police officer belive that the suspect has committed a crime.

The Police may search the car without a warrant under the auto exception because the facts state the police had PC to believe the car contained drugs. Police may search the entire care because drugs can likely be found in any area of the car.

Plain View
No Warrant is needed for contrand in plain view. A police officer is not obliged to ignore contrand in plain view or where contraband is found during a search for protection, inventory, or for any other lawful reason.

Protective Sweep

No warrant is required for a Protective Sweep. Police may search the immediate lung area of a suspect placed under arrest if the officer has a reason to believe it is necessary for his/her safety. Where a suspect is ordered outside his car and arrested, the police may search the interior of the auto in those likely places where weapons may be found.

The police officer may search the interior of the car because the suspect was ordered outside his car and arrested -- although there are no specific facts that support that the suspect was armed, the officer had PC to think drugs where present -- it is reasonable for an officer to believe that weapons may be associated with the drugs. Therefore, a search of the interior where weapons may be found is proper. If drugs where found during the search, the officer may seize them under the plain view rule.

Inventory Search
No Warrant is required for an inventory search of an impounded car.

The police officer may conduct an inventory of the contents of the auto because the suspected was placed under arrest and therefore, could not be allowed to drive the car away. Therefore, the officer would have to impound the car. If the drugs where found during the inventory search, the drugs may be seized under the plain view rule.

See... these are just three... you can probably do more and write better. I hope this clears things up.

Lets clean up the rest:

In a traffic stop... any arrest is fine -- the cops may search for safety sake... scope limited to arears where weapon is likely to be found... in the interior of the car -- (trunk is off limits) but not if it is only a traffic tickets.

Keys: If it seems like the police are saying step out of the car... and put the cuffs on the suspect... arrest...[ protective sweep -- cop, look under the seat ]

If it seems like hey Mac, where's the fire? Here's a citation... [no bust-- cop, don't make a fuss.]

If it is a legit stop and the person seems really suspicious & dangerous, the cop has reason to think suspect is armed... TERRY STOP... quick frisk of person and interior of car.

If the Cop makes a pretextual stop (ruse to pull over the car) -- no worries. If Cop gets PC for car; arrests suspect; or has reason to think suspect is armed.... search is allowed.

oh the mispellings in the prior posts!!!

Jimmy,
Conceptually, would the "auto exception" simply be an extension of the Terry stop and frisk? That is, no arrest has been made yet, so it is not a search incident to arrest. The cops simply need probable cause to believe that the person is armed or involved in criminal activity. I too get confused with this area...

http://www.all4jds.com/Forums/aff/1...fpg/1.aspx

read my answer as above
good luck on the exams

Go the link in the above post. A good outline of the law. But the short answer to your question is NO.

The Auto Exception is not a Terry Stop.

A Terry Stop is a brief delay for questioning. If the officer thinks the suspect has weapons... he/she may do a cursory pat-down frisk.

In the Auto Exception... the officer has placed someone under arrest and has PC to believe that the suspect is armed; PC to belive that evidence related to the arrest can be found within or PC to believe contraband is within.

As Belandri has pointed out (read that post), the officer cannot use Chimel's protective sweep unless he/she has good reason to believe the suspect is armed. In other words, a simple DUI is not enough... even though the suspect was arrested. (look on any DUI lawyer's site and read.)

Grant v. Arizona is farily recent... I don't know how much it will be tested... Belandri may have a better idea.

One more way of looking at Grant v. Arizona

Don't think of it so much as blowing a hole in the law but rather limiting Police abuse.

Some cops where pulling people over for simple traffic offenses. And in those jurisdictions... where a cop could either write a ticket or arrest... the cop arrested the suspect. The cop did so to search the car on a bogus protective sweep.

Here's how it goes:

The Class Court held that a motorist’s privacy interest in his vehicle is less substantial than in his home.

(that's why more exceptions are allowed)

The Beltron Court held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant.

The Chimel Court held that a search incident to arrest may only include the arrestee’s person and the area within his immediate control.

The Thornton Court held that police may search the passenger compartment as incident contemporaneous to an arrest.
[Chimel allowed for a protective sweep of the lung area; Beltron allowed for a contemporaneous search of the passengers compartment including jackets and coats when the arrest takes place in or next to the vehicle.]


Here is Grant. Grant (suspected of being a drug dealer) was busted by the police for driving with a suspended license. Several officers surrounded and secured Grant in the police car and had no access to his vehicle. Cops relying on Chimel, Beltron and Thornton then searched Grant's car and found a gun and drugs.

The Court in Grant said that the Cops read the prior cases too broadly. The court noted Police abuse over the years. The Court reasoned that a genuine concerns for officer safety or the destruction of evidence was not present in a bust for a suspended lic with several officers surrounding the suspect.

Thus the court in Grant held that Police 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 it is reasonable to believe the vehicle contains evidence of the offense of arrest.

Thus... the court put a finer point on the Chimel/Beltron/Thornton cases.

Re-reading my on of my posts I said PC for being armed. Miss typed... sorry. That's not the case... see above discussion of Gates and Belandri's post

Belton rule at its best. Which in California was overturned by Gant
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From:

I learned it as Belton, not Beltron. And I agree that the Gant (Grant?) case overturned it or at least part of it. That came after I passed the bar so I stopped paying attention as much. ;-)

Jimmy's got it down pat it seems. I always remembered it as auto exception was with probable cause, and search incident to arrest was, well, after a lawful arrest and no PC was required for the search itself.

I'm no Crim Pro expert, however. I always trust what Belandrie says. Smart cookie. She's always nails it on the head. And passed the bar doing so, I might add.