# State v. Gant

> Court of Appeals of Arizona · March 29, 2002 · 202 Ariz. 240

URL: https://www.frixlaw.com/law-library/cases/9784442

## Case

- **Full name:** The STATE of Arizona, Appellee, v. Rodney Joseph GANT, Appellant
- **Court:** Court of Appeals of Arizona
- **Decided:** March 29, 2002
- **Citations:** 202 Ariz. 240; 370 Ariz. Adv. Rep. 3; 43 P.3d 188; 2002 Ariz. App. LEXIS 53
- **Precedential status:** Published
- **Opinion:** Concurrence by Pelander
- **Judges:** Brammer, Pelander, Flórez
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

PELANDER, Judge,
specially concurring.
*247 ¶ 19 I concur with the court’s opinion but write separately to make several additional observations. Cases such as this are difficult and have produced disparate results around the country primarily because the law relating to warrantless vehicle searches after Belton has become so muddled. As Justice Lacy noted in her concurring opinion in Glasco v. Commonwealth, 257 Va. 433 , 513 S.E.2d 137, 142 (1999) (Lacy, J., concurring):
[Njothing in Belton specifically defined what circumstances qualified an arrestee as a “recent occupant.” Consequently, from its inception, application of the so-called “bright line” Belton rule has not provided clear resolution of search issues in eases with facts that do not mirror the facts in Belton or the precise words of the rule.
¶ 20 The Belton rule was premised, at least theoretically, on concerns for officer safety and evidence preservation. See New York v. Belton, 453 U.S. 454, 457 , 101 S.Ct. 2860, 2862 , 69 L.Ed.2d 768, 773 (1981); State v. Hanna, 173 Ariz. 30, 32 , 839 P.2d 450, 452 (App.1992). As routinely applied, however, the rule “may be invoked regardless of whether the arresting officer has an actual concern for safety or evidence.” United States v. McLaughlin, 170 F.3d 889, 891 (9th Cir.1999). See also Hanna; State v. Wanzek, 598 N.W.2d 811 (N.D.1999); Glasco . As Judge Trott aptly noted in his concurring opinion in McLaughlin : “In our application of Belton’s ‘bright-line’ [rule] ... the rationales behind the search incident to arrest exception have been abandoned, the purpose has been lost, and, as Chief Justice Rehnquist predicted, little certainty remains.” 170 F.3d at 894 (Trott, J., concurring).
¶21 “The purposes behind Belton were two-fold: to create a single familiar standard to guide police officers in automobile searches and to eliminate the need for litigation in every case to determine whether the passenger compartment of the vehicle is within the scope of a search incident to arrest.” Wanzek, 598 N.W.2d at 815 . See also Belton, 453 U.S. at 458-60 , 101 S.Ct. at 2863-64 , 69 L.Ed.2d at 774-75 ; Glasco, 513 S.E.2d at 141 . Based on the varying results of cases decided in the twenty years following Belton , it is questionable whether those purposes have been achieved. And, I have some concerns that our ruling today, although correct on the very sparse, undeveloped record before us, may frustrate those purposes and incorporate unintended nuances into this already complicated Fourth Amendment arena. As the state points out, the fine lines that courts may have to draw in this area are problematic:
[W]ould a suspect who has one foot in the vehicle and one on the ground be deemed “in” or “out” for purposes of Belton? Would that depend on whether some part of his body was still touching the seat? What if he had both feet on the ground but the door is still open and he’s leaning into the passenger compartment — or just reaching in? What if he’s sitting on the tailgate of a station wagon but his feet are touching the ground — could he merely stand up to render Belton inapplicable? What if the suspect is standing outside the vehicle but has left the engine running? ... [C]ould the initial contact [by police] be non-verbal, such as a signal by hand, whistle, or flashlight? Or, because an actual-occupancy concept necessarily depends on the suspect’s precise physical location at the time of contact, would the initial contact have to involve at least the officer’s present ability to make immediate physical contact? Under such a rule, given the endless variations in the facts that Fourth Amendment issues inevitably engender, suppression hearings on Belton searches could become extended mini-trials on factual minutiae, and the actions of police officers in the field would have no predictable legal consequences in the courtroom.
¶22 Regardless of whether those issues and concerns may be legitimate, this case does not raise any of them. Fourth Amendment determinations typically involve fact-intensive inquiries and, inevitably, line-drawing. And resolution of any such issues, of course, depends on analysis of specific facts actually presented in a particular case. Based on the record here, the state simply did not carry its burden of establishing the *248 legality of the warrantless search of Gant’s vehicle.
¶ 23 Nonetheless, I agree with the state’s protest that “police should not have to run a footrace to implement Belton.” See Wanzek, 598 N.W.2d at 815 (“Police officers should not have to race from their vehicles to the arrestee’s vehicle to prevent the arrestee from getting out of the vehicle in order to conduct a valid search.”); Thomas v. State, 761 So.2d 1010, 1014 (Fla.1999) (“[T]he arrest and subsequent search should not be invalidated merely because the defendant is outside the automobile. The occupants of a vehicle cannot avoid the consequences of Belton merely by stepping outside of the vehicle as the officers approach.”). Indeed, our opinion expressly emphasizes that point. See ¶ 11, supra. I further note that we do not limit Belton’s reach to cases in which police first initiate or attempt to initiate contact with the arrestee when he or she is in a moving, as opposed to a parked or otherwise stationary, vehicle.
¶ 24 Despite my concerns about the state of the law in this area, affirming the trial court’s ruling here essentially would not only overlook, but also tacitly approve of the significant factual deficiencies in the record; minimize the state’s burden of establishing the legality of this warrantless search; disregard the Supreme Court’s cautionary note in Belton that it was “in no way altering] the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests,” 453 U.S. at 460 n. 3, 101 S.Ct. at 2864 n. 3, 69 L.Ed.2d at 775 n. 3; and stretch the concept of “recent occupant” beyond Belton’s intended, contextual meaning. See Glasco, 513 S.E.2d at 144 (Lacy, J., concurring) (noting that in all but one case cited in Belton on this point, “the arrestee was arrested while in the vehicle, and in all the cases the search of the vehicle occurred after the arrestees exited the vehicles at the direction of the police and while they were still within close proximity of the vehicles”). Accordingly, I concur that the trial court erred in denying Gant’s motion to suppress.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9784442. Public record. Not legal advice.