In United States v. Naim Nafis Shakir, the Third Circuit Court of Appeals considered a search pursuant to a lawful arrest in a non-automobile context in the post Gant era. In Arizona v. Gant the Supreme Court clarified New York v.Belton. In Belton the Supreme Court ruled that in a vehicle search pursuant to an arrest officers could search the entire vehicle. But in Gant the Court ruled that since the purpose of a search pursuant to an arrest was to protect the officers such a search could only occur if the arrestee had access to the area to be searched. In other words once the arrestee is in a secure position there is no longer a need for a search. A search cannot be based upon the location of the arrestee prior to the arrest if the arrestee is now handcuffed and in the police vehicle for example.

In Shakir Pennsylvania authorities issued an arrest warrant for Naim Shakir for an armed robbery. The FBI found him in a Jersey City hotel. As they were arresting him, he threw down a bag. After he was arrested and handcuffed the agents seized the bag which was near Shakir’s feet and found a significant amount of cash in the bag. At trial he moved to suppress the bag. The appellate court ruled that the rule in Gant applies not only to automobile searches but to any search done pursuant to an arrest. It distinguished the case of Shakir from another case where the bag was dropped three feet away from the defendant. In that case once the defendant was handcuffed he did not have access to the bag, but with the bag being at Shakir’s feet and with handcuffs not always preventing injury to officers the court held that despite Gant the search was legal.

In 1969 the Supreme Court rejected a search incident to arrest where the area searched exceeded the area adjacent to the area where the defendant was arrested in Chimel v. California. The Court explained that the purpose of the search incident to arrest exception to the warrant rule was to protect law enforcement agents and to prevent the destruction of evidence. Therefore, the court ruled that a search incident to an arrest was only legitimate if the area searched was limited to that area adjacent to the area where the arrest occurred. Thus the only area that could be searched was the area in which the defendant had access to for either the purpose of getting a weapon or destroying evidence.

In 1981 the Supreme Court applied Chimel to auto searches in Belton v. New York. In Belton the Court attempted to develop a bright line rule for interpreting Chimel cases by ruling that the area under the control of the arrestee was the entire interior of the vehicle. But for the last twenty-eight years courts have disagreed about what searches were permissible under Belton. Most courts have ruled that the police could search the interior of the vehicle at any time. This allowed police to search the vehicle when the arrestee no longer had access to the vehicle. Searches incident to arrest have been upheld after the arrestee was handcuffed and placed in the police car. Courts have even upheld searches incident to arrest when the arrestee had been taken away and place in the jail.

Tuesday the Supreme Court in Arizona v. Gant said enough is enough. 1n 1979 we said that searches incident to arrest can only be justified if they protect the security of the police officer or prevent the destruction of evidence. Gant only allows searches of an automobile pursuant to a legal arrest if at the time of the search the arrestee is within the area where he/she might seize a weapon from the vehicle or where the police have have reason to believe that they will find evidence related to the crime for which the arrestee was arrested in the vehicle.

Hopefully this time the lower courts will pay attention.