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.Two days later, it came to Weird like a flash;he had been looking in the wrong places.Luckily, Ralph s father had not yetbeen able to travel to Whosville to pick up the car, so Weird jumped on thechance and used some tools to take out the steering wheel hub, door panels,the dash board, and back seat.Sure enough, Weird found 30 pounds of mari-juana, a case of counterfeit glow-in-the-dark Thankless Incarnate action fig-ures, and nearly $37,000 in cash (mostly $20 bills).Ralph was charged with possession of marijuana with intent to distribute,possession of counterfeit goods, and attempted bribery of a police officer;Mary was charged with possession of a vial of cocaine.The judge denied all oftheir motions to suppress and both of them are now serving sentences in theWhosville jail.Figure 4.11Vehicle Limited Weapons Search" The sole object of the search is weapons" The offi cer must have reasonable suspicion that weapons are located inside alawfully stopped vehicle" The scope of the search is confined to the passenger compartment" The intensity is limited to a cursory visual inspection of areas (and containers)inside the passenger compartment in which a weapon would fit. 224 CONSTITUTIONAL LAW § 4.10§ 4.10 Search of Vehicles Pursuant to aDetention or ArrestTerry vehicular limited weapons searches and vehicle searches incident toarrest share one feature in common.The area that can be searched is limited tothe passenger compartment.However, that is where the similarity ends.Thereare significant differences in the grounds for the search, the lawful objects, andthe intensity of search activity permitted.A.Terry Searches of Vehicles1.Grounds for Search AuthorityA limited weapons search, as the name suggests, is strictly limited tosearching for weapons that could be used to harm the officer.Officers whomake a valid Terry or traffic stop have the authority to order the driver andpassengers to step out of the vehicle and remain outside for the duration ofthe stop.This precaution may be taken as a matter of standard operating pro-195cedure, with no additional grounds beyond grounds for the stop.Reasonablesuspicion that weapons are present is necessary to conduct a vehicular weap-196ons search.The search may be performed even though the driver and passen-gers have been ordered to step out of the vehicle because they will have access197to weapons inside once they are permitted to re-enter.2.Scope and IntensityThe scope of a vehicular weapons search is limited to the passenger compart-198ment.The trunk is off-limits because a locked trunk is not a place from whichthe occupants can gain immediate access to a weapon.The intensity of the searchis limited to a cursory visual inspection of areas within the passenger compart-199ment in which a weapon could fit.These areas include the floors, dashboard,seats, area under the seats, glove compartment, console, storage compartments,rear window ledge, and all containers inside the passenger compartment in which a200weapon could fit.A cursory visual inspection of these areas is all that is permitted.If criminal evidence or contraband is discovered by the police while searching201within these confines, they may seize it under the plain view exception.Officer Weird cannot be faulted for his decision to stop Ralph s car, frisk him,and perform a vehicular weapons search.He had received a tip from a reliable195Pennsylvania v.Mimms, supra note 153 (driver); Maryland v.Wilson, 519 U.S.408, 117 S.Ct.882, 137 L.Ed.2d 41 (1998) (passenger).196Michigan v.Long, supra note 158.197Id.198Id.199Id.200Id.201The plain view doctrine is discussed in § 4.4(B)(3) supra. § 4.10 SEARCH AND SEIZURE 225informant that a heavily armed drug dealer would be passing through Whosvilleand he had every reason to believe that Ralph was the suspect he had been waiting202for.Ralph s car matched the informant s description in every detail; he was trav-eling with a woman companion, as Gravy normally did; and, because traffic rarelypasses through Whosville, Officer Weird was reasonable in concluding that Ralph203was the suspect he d been waiting for and that Ralph was armed and dangerous.However, Officer Weird twice overstepped the boundaries of a Terryvehicular weapons search.The first time was when he examined the crumpledcigarette pack in Mary s handbag.Because he knew that the cigarette pack204did not contain a weapon, he had no authority to examine the contents.Thesecond time was when he searched the trunk.Trunks are beyond the scope of205a vehicle weapons search.Even though Officer Weird exceeded the boundaries of a vehicular weap-ons search, he did not violate the Fourth Amendment because he had prob-able cause to arrest Ralph before the search began.Ralph had attempted tobribe him and attempting to bribe a police officer is a crime.Accordingly, thesearch Weird performed needs to be analyzed under the search incident toarrest exception to the warrant requirement.We turn now to an examinationof this exception.Figure 4.12Vehicle Searches Incident to an Occupant s Arrest" Police may perform a vehicle search incident to arrest only when: (1) thearrestee is unsecured and within reaching distance of the passenger compart-ment at the time of the search, or (2) police have reason to believe that thevehicle might contain evidence of the crime for which the arrest is made." The scope of the search extends to the entire passenger compartment and allcontainers located inside, without regard for ownership." The intensity may be as thorough as necessary to fi nd weapons and offense-related evidence." The search must be conducted at the time of the arrest and before the arresteehas been secured, if the search is justifi ed by the need to protect the officer ssafety.202United States v.Taylor, 162 F.3d 12 (1st Cir.1998) (detailed tip from reliable informant thatoccupants of automobile were in possession of crack cocaine and weapons exhibited suf-ficient indicia of reliability to justify investigatory stop of automobile).203United States v.Perrin, 45 F.3d 869, 873 (4th Cir.1995) (noting that it is certainly reason-able for an officer to believe that a person engaged in selling crack cocaine may be carryinga weapon for protection ).204Minnesota v.Dickerson, supra note 19; Commonwealth v.Silva, 318 N.E.2d 895 (Mass.1974) (police exceeded their Terry vehicular weapon search authority when they unzipped asmall pouch, found under the front seat, because it was inconceivable that a pouch that sizecould contain a weapon).205See, e.g., United States v.Perea, supra note 187 (search of duffel bag in trunk could not bejustified as search incident to arrest). 226 CONSTITUTIONAL LAW § 4.10B.Vehicle Searches Incident to the CustodialArrest of an Occupant1.Grounds for Search AuthorityThe incident-to-arrest theory for searching automobiles has changedmarkedly since the last edition.Under prior law, the arrest of a vehicle occu-pant 206 or recent occupant207 automatically justified a full search of the passen-ger compartment.208 This broad search authority lead to the widely criticizedpractice of using traffic arrests as a cover to conduct wide-ranging searchesfor drugs, with no reasonable basis for believing that drugs would be found.209Countless motorists had their privacy invaded for nothing more serious thana speeding or seatbelt violation.In Arizona v.Gant,210 discussed in § 4 [ Pobierz caÅ‚ość w formacie PDF ]
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.Two days later, it came to Weird like a flash;he had been looking in the wrong places.Luckily, Ralph s father had not yetbeen able to travel to Whosville to pick up the car, so Weird jumped on thechance and used some tools to take out the steering wheel hub, door panels,the dash board, and back seat.Sure enough, Weird found 30 pounds of mari-juana, a case of counterfeit glow-in-the-dark Thankless Incarnate action fig-ures, and nearly $37,000 in cash (mostly $20 bills).Ralph was charged with possession of marijuana with intent to distribute,possession of counterfeit goods, and attempted bribery of a police officer;Mary was charged with possession of a vial of cocaine.The judge denied all oftheir motions to suppress and both of them are now serving sentences in theWhosville jail.Figure 4.11Vehicle Limited Weapons Search" The sole object of the search is weapons" The offi cer must have reasonable suspicion that weapons are located inside alawfully stopped vehicle" The scope of the search is confined to the passenger compartment" The intensity is limited to a cursory visual inspection of areas (and containers)inside the passenger compartment in which a weapon would fit. 224 CONSTITUTIONAL LAW § 4.10§ 4.10 Search of Vehicles Pursuant to aDetention or ArrestTerry vehicular limited weapons searches and vehicle searches incident toarrest share one feature in common.The area that can be searched is limited tothe passenger compartment.However, that is where the similarity ends.Thereare significant differences in the grounds for the search, the lawful objects, andthe intensity of search activity permitted.A.Terry Searches of Vehicles1.Grounds for Search AuthorityA limited weapons search, as the name suggests, is strictly limited tosearching for weapons that could be used to harm the officer.Officers whomake a valid Terry or traffic stop have the authority to order the driver andpassengers to step out of the vehicle and remain outside for the duration ofthe stop.This precaution may be taken as a matter of standard operating pro-195cedure, with no additional grounds beyond grounds for the stop.Reasonablesuspicion that weapons are present is necessary to conduct a vehicular weap-196ons search.The search may be performed even though the driver and passen-gers have been ordered to step out of the vehicle because they will have access197to weapons inside once they are permitted to re-enter.2.Scope and IntensityThe scope of a vehicular weapons search is limited to the passenger compart-198ment.The trunk is off-limits because a locked trunk is not a place from whichthe occupants can gain immediate access to a weapon.The intensity of the searchis limited to a cursory visual inspection of areas within the passenger compart-199ment in which a weapon could fit.These areas include the floors, dashboard,seats, area under the seats, glove compartment, console, storage compartments,rear window ledge, and all containers inside the passenger compartment in which a200weapon could fit.A cursory visual inspection of these areas is all that is permitted.If criminal evidence or contraband is discovered by the police while searching201within these confines, they may seize it under the plain view exception.Officer Weird cannot be faulted for his decision to stop Ralph s car, frisk him,and perform a vehicular weapons search.He had received a tip from a reliable195Pennsylvania v.Mimms, supra note 153 (driver); Maryland v.Wilson, 519 U.S.408, 117 S.Ct.882, 137 L.Ed.2d 41 (1998) (passenger).196Michigan v.Long, supra note 158.197Id.198Id.199Id.200Id.201The plain view doctrine is discussed in § 4.4(B)(3) supra. § 4.10 SEARCH AND SEIZURE 225informant that a heavily armed drug dealer would be passing through Whosvilleand he had every reason to believe that Ralph was the suspect he had been waiting202for.Ralph s car matched the informant s description in every detail; he was trav-eling with a woman companion, as Gravy normally did; and, because traffic rarelypasses through Whosville, Officer Weird was reasonable in concluding that Ralph203was the suspect he d been waiting for and that Ralph was armed and dangerous.However, Officer Weird twice overstepped the boundaries of a Terryvehicular weapons search.The first time was when he examined the crumpledcigarette pack in Mary s handbag.Because he knew that the cigarette pack204did not contain a weapon, he had no authority to examine the contents.Thesecond time was when he searched the trunk.Trunks are beyond the scope of205a vehicle weapons search.Even though Officer Weird exceeded the boundaries of a vehicular weap-ons search, he did not violate the Fourth Amendment because he had prob-able cause to arrest Ralph before the search began.Ralph had attempted tobribe him and attempting to bribe a police officer is a crime.Accordingly, thesearch Weird performed needs to be analyzed under the search incident toarrest exception to the warrant requirement.We turn now to an examinationof this exception.Figure 4.12Vehicle Searches Incident to an Occupant s Arrest" Police may perform a vehicle search incident to arrest only when: (1) thearrestee is unsecured and within reaching distance of the passenger compart-ment at the time of the search, or (2) police have reason to believe that thevehicle might contain evidence of the crime for which the arrest is made." The scope of the search extends to the entire passenger compartment and allcontainers located inside, without regard for ownership." The intensity may be as thorough as necessary to fi nd weapons and offense-related evidence." The search must be conducted at the time of the arrest and before the arresteehas been secured, if the search is justifi ed by the need to protect the officer ssafety.202United States v.Taylor, 162 F.3d 12 (1st Cir.1998) (detailed tip from reliable informant thatoccupants of automobile were in possession of crack cocaine and weapons exhibited suf-ficient indicia of reliability to justify investigatory stop of automobile).203United States v.Perrin, 45 F.3d 869, 873 (4th Cir.1995) (noting that it is certainly reason-able for an officer to believe that a person engaged in selling crack cocaine may be carryinga weapon for protection ).204Minnesota v.Dickerson, supra note 19; Commonwealth v.Silva, 318 N.E.2d 895 (Mass.1974) (police exceeded their Terry vehicular weapon search authority when they unzipped asmall pouch, found under the front seat, because it was inconceivable that a pouch that sizecould contain a weapon).205See, e.g., United States v.Perea, supra note 187 (search of duffel bag in trunk could not bejustified as search incident to arrest). 226 CONSTITUTIONAL LAW § 4.10B.Vehicle Searches Incident to the CustodialArrest of an Occupant1.Grounds for Search AuthorityThe incident-to-arrest theory for searching automobiles has changedmarkedly since the last edition.Under prior law, the arrest of a vehicle occu-pant 206 or recent occupant207 automatically justified a full search of the passen-ger compartment.208 This broad search authority lead to the widely criticizedpractice of using traffic arrests as a cover to conduct wide-ranging searchesfor drugs, with no reasonable basis for believing that drugs would be found.209Countless motorists had their privacy invaded for nothing more serious thana speeding or seatbelt violation.In Arizona v.Gant,210 discussed in § 4 [ Pobierz caÅ‚ość w formacie PDF ]