Gant exception is not swallowing the rule

In 2009, TCDLA published an article of mine dealing with inventory searches that I wrote after the Supreme Court's decision in Arizona v. Gant, 129 S.Ct. 1710 (2009)

In Gant, the Supreme Court said that police could no longer automatically search a vehicle whenever they had arrested an occupant of that vehicle. The theory that had been used to justify these blanket searches was that even if the arrestee was arrested and secured in the police car, that person could somehow magically escape to their own car and find a weapon to use against the police.  The Gant court recognized that despite the protestations of police, offier safety is really not compromised by disallowing these "searches incident to arrest," and that there was really no valid justification for the blanket rule.

Some commentators wrote that it was unclear how much the Gant ruling would actuallly change police behavior in a way that would help criminal defendants, for two reasons. First, inventory searches are still permitted providing the police follow the proper protocols.  Second, because Gant contains an internal exception: when it is reasonable to believe that evidence related to the offense for which the arrest was made might be found in the vehicle." 

This exception only makes sense–essentially, if the cops have probable cause to arrest, that same probable cause extends to a reasonable belief that there might be evidence relating to the arrest in the arrestee's immediate vicinity.  So, if a person is being arrested for failing to wear a seat belt, the police have no justification for searching the vehicle.  But if a person is being arrested for some other offense, the police might be able to justify a search to look for evidence of that crime. 

The Eastland court of appeals recently wrote on this issue in an amusing case styled Daves v. StateThanks to B.W. Barnett's Liberty and Justice for Y'all blog for finding this case.  In Daves, the driver was pulled over for running a stop sign, and due to the odor of alcohol on his breath the officer asked him to perform sobriety tests.  Then the hilarity ensued:

During the ensuing field sobriety tests, the driver, Cody Large, decided to prove to Officer Welch that he was not intoxicated, and he devised his own field sobriety test: he tried to walk on his hands. As Large was attempting to perform that task, various items began to fall from his pockets. One of those items was a purple marihuana pipe.

The Eastland court agreed with the trial court that the paraphernalia possession provided sufficient probable cause to search the vehicle including passenger's purse which contained various controlled substances.  I would argue that this is a pretty thin basis for PC to search the whole vehicle, but PC itself is a pretty weak standard.

Fortunately, thus far, the Gant exception does not seem to be an exception that has swallowed the rule.