# State v. Gant

> Court of Appeals of Arizona · September 20, 2006 · 213 Ariz. 446

URL: https://www.frixlaw.com/law-library/cases/9784297

## Case

- **Full name:** The STATE of Arizona, Appellee, v. Rodney Joseph GANT, Appellant
- **Court:** Court of Appeals of Arizona
- **Decided:** September 20, 2006
- **Citations:** 213 Ariz. 446; 487 Ariz. Adv. Rep. 3; 143 P.3d 379; 2006 Ariz. App. LEXIS 112
- **Precedential status:** Published
- **Opinion:** Dissent by Espinosa
- **Judges:** Brammer, Espinosa, Eckerstrom
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ESPINOSA, Judge,
dissenting.
¶22 I respectfully dissent. The majority arrives at its conclusion by seizing on dicta in State v. Dean, 206 Adz. 158, ¶ 34, 76 P.3d 429, 437 (2003), to, in essence, single-handedly discard the bright-line rule set forth in New York v. Belton, 453 U.S. 454, 460 , 101 S.Ct. 2860, 2864 , 69 L.Ed.2d 768 (1981), and followed in scores of eases since, including those in Arizona such as State v. Hein, 138 Ariz. 360, 365 , 674 P.2d 1358, 1363 (1983); State v. Hanna, 173 Ariz. 30, 32 , 839 P.2d 450, 452 (App.1992); State v. Hersch, 135 Ariz. 528, 531 , 662 P.2d 1035, 1038 (App.1982); and Dean itself, 206 Ariz. 158, ¶ 17 , 76 P.3d at 434 . In doing so, today’s decision effectively attempts to roll back the clock to the previous “disarray” among state and federal courts as to “the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants.” Belton, 453 U.S. at 459 n. 1, 459, 101 S.Ct. at 2863 n. 1, 2863. This is an outcome neither contemplated nor sanctioned by our supreme court in Dean , and I fear this court is getting it wrong for the second time.
¶ 23 The majority essentially ignores that Dean expressly adopted the “recent occupancy” test, which determines a vehicle search is within the limits of Belton when the defendant is arrested in close proximity to the vehicle immediately after the defendant exits the automobile. Dean, 206 Ariz. 158, ¶ 17 , 76 P.3d at 434 , citing United States v. Thornton, 325 F.3d 189, 194-95 (4th Cir.2003), aff'd, Thornton v. United States, 541 U.S. 615 , 124 S.Ct. 2127 , 158 L.Ed.2d 905 (2004) (Thornton II); and Glasco v. Commonwealth, 257 Va. 433 , 513 S.E.2d 137, 141-42 (1999). Indeed, the court in Dean explicitly held that to be “the correct rule,” id., ¶ 30, 76 P.3d 429 , and applying it to the facts before it, concluded: “[W]hen, as here, the arrest occurs long after the defendant had left the vehicle and far from the vehicle, the warrant requirement of the Fourth Amendment applies.” Id. ¶ 34, 76 P.3d 429 . The majority disregards that holding, instead contending “the Dean court invalidated the search in the case before it precisely because ‘neither of the justifications for a warrantless search of the vehicle — protection of the arresting officers and preservation of evidence — [wa]s present.’ ” ¶ 10, supra, quoting Dean, 206 Ariz. 158, ¶ 32 , 76 P.3d at 437 . But the majority omits the court’s key qualifying phrase directly preceding the quoted language, “[u ]nder the circumstances of this case,” as well as the court’s principal reasoning:
Under any reasoned analysis, Dean simply was not a “recent occupant” of the Jeep for Belton purposes when he was arrested. He had not occupied the vehicle for some two and one-half hours, and his arrest occurred not in close proximity to the car, but instead inside the house.
*454 Id. ¶ 32, 76 P.3d 429 (emphasis added). The majority also selectively quotes from Dean’s fact-bound observation that, in its entirety, reads: “[T]he issue is not whether the defendant has ‘evaded’ a search by departing the vehicle, but rather whether the totality of the facts still presents the kind of situation that justifies dispensing with the warrant requirement.” Id. ¶ 34, 76 P.3d 429 . It is apparent the language the majority carefully culls from Dean simply cannot be separated from the unique facts with which the court was faced, particularly when relied on to avoid the Belton rule on the very type of situation and facts that rule was designed to address.
¶ 24 The majority goes on to sidestep Dean’s true holding by attempting to distinguish the facts at hand from Belton’s rationale. But it cannot reasonably be maintained that the search of Gant’s vehicle a mere “one to three minutes” after Gant had been secured can be considered anything but contemporaneous and proximate to his occupancy of the vehicle and arrest. Gant’s car was searched within scant minutes after he exited it, and he was at the scene while the search was conducted. As noted above, the Dean court specifically adopted the Glasco recent occupancy rule and noted that “concepts such as ‘close proximity’ and ‘immediately after’ are of course subject to factual analysis.” Dean, 206 Ariz. 158, ¶ 30 , 76 P.3d at 437 , quoting Glasco, 513 S.E.2d at 142 . The court emphasized it was the combination of Dean’s temporal and spatial distance from the vehicle that supported its decision. Id., ¶ 31, 513 S.E.2d 137 (“But we have been able to discover no case, and the State has cited none, in which a search of the passenger compartment of a vehicle was upheld under Belton when the driver was arrested as long after he left the vehicle and as far from vehicle as was the defendant here.”).
¶ 25 The state, in the supplemental brief this court requested, makes a different point that bears mentioning. Belton’s bright-line rule minimizes the risks inherent in arresting recent occupants of automobiles by permitting police officers to make the arrest and secure the arrestee away from the vehicle before conducting a search. This avoids the greater potential dangers involved in attempting, in the name of Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034, 2043 , 23 L.Ed.2d 685 (1969), alone, to conduct the arrest and search while the occupant is in or near the automobile, which in many instances, the police physically might be able to do. See also Thornton II, 541 U.S. at 621, 124 S.Ct. at 2131 (custodial arrest is “fluid” and danger to police “ ‘flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty’ ”), quoting United States v. Robinson, 414 U.S. 218, 235 n. 5, 94 S.Ct. 467 , 476 n. 5, 38 L.Ed.2d 427 (1973). Today’s decision, however, would return Arizona law enforcement officers to the uncertain and dangerous environment in which, “fac[ing] a highly volatile situation,” Thornton II, 541 U.S. at 621 , 124 S.Ct. at 2131 , officers must “calculate the probability that weapons or destructible evidence may be involved,” State v. Curiel, 130 Ariz. 176, 181 , 634 P.2d 988, 993 (App.1981); “divert [their] attention to a search while the defendant [i]s free and close at hand,” State v. Kelley, 107 Ariz. 8, 9 , 480 P.2d 658, 659 (1971); and “estimate[] ... what items were or were not within reach of an arrestee at any particular moment,” Thornton II, 541 U.S. at 623 , 124 S.Ct. at 2132 , in order to do their hazardous jobs. See Washington v. Chrisman, 455 U.S. 1, 7 , 102 S.Ct. 812, 817 , 70 L.Ed.2d 778 (1982) (“Every arrest must be presumed to present a risk of danger to the arresting officer.”).
¶ 26 Contrary to the majority’s view, the grave concerns for officer safety do not “assume[] that, one way or another, the search must take place,” Thornton II, 541 U.S. at 627 , 124 S.Ct. at 2134 (Scalia, J., concurring), beyond Belton’s up to now, bright line contours. There is, however, a practical and unfortunate effect of today’s decision that will encourage police to search an arrestee’s immediate area or vehicle without delay and before he or she is safely secured, precisely the real-world danger that Belton and its progeny have sought to ameliorate while balancing the requirements of the Fourth Amendment. See id. at 623, 124 S.Ct. at 2132 ; Kelley, 107 Ariz. at 9-10 , 480 P.2d at 659-60 ; Curiel, 130 Ariz. at 181 , 634 P.2d at 993 .
¶ 27 Finally, this is not an outcome the trial court could reasonably extrapolate, par *455 ticularly in view of Dean and the recent decision by the Supreme Court in Thornton II, which involved facts virtually identical to those presented here. Although the majority correctly points out that Thornton II addressed a narrower legal question, the majority characterizes the present issue as “far from settled” based on concurring comments not contained in the Thornton II plurality opinion. ¶ 12, supra. And, while the majority purports to be merely following “the clear direction [the Dean ] court has given us,” it is in my view a backwards journey that Dean neither maps out nor supports. ¶ 14, supra.
¶ 28 Accordingly, I would uphold the trial court’s decision finding the search of Gant’s vehicle within the bounds of Belton, Dean, and the Fourth Amendment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9784297. Public record. Not legal advice.