Academic journal article Washington Law Review

Arrested Development: Arizona V. Gant and Article I, Section 7 of the Washington State Constitution

Academic journal article Washington Law Review

Arrested Development: Arizona V. Gant and Article I, Section 7 of the Washington State Constitution

Article excerpt

Abstract: In Arizona v. Gant,' the United States Supreme Court held that the search of a vehicle incident to arrest is permissible in only two situations: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment; or (2) when it is reasonable to believe that evidence relevant to the crime of arrest may be found in the vehicle. Because Gant expressed a standard more protective than that established by the Washington State Supreme Court, Gant induced a state of confusion in Washington, where it has long been maintained that article I, section 7 of the Washington State Constitution offers broader protections than those available under the Fourth Amendment. Since Gant, the Court has twice attempted to redefine the search of a vehicle incident to arrest under article I, section 7. In State v. Patton,2 and subsequently in State v. Valdez? the Washington State Supreme Court adopted a standard closely resembling the first Gant prong. However, neither decision expressly adopted or rejected the second. Because the second prong is supported by historical Washington case law, the Washington State Supreme Court should adopt a modified version of the Gant rule, with an added proscription on the opening of any locked containers located during the search. Such a modification would satisfy the heightened privacy protections of article I, section 7.

INTRODUCTION

For more than eighty years, Washington courts have struggled to define the constitutionally authorized preconditions of the search of a vehicle incident to arrest. Following a peripatetic path between the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington State Constitution, Washington jurisprudence regarding the search of a vehicle incident to arrest reveals little in the way of constancy or predictability.4 Never has this been more apparent than in the wake of the United States Supreme Court's imposition of new guidelines for the search of a vehicle incident to arrest as announced in Arizona v. Gant.5 Because Washington courts have long provided that article I, section 7 of the Washington State Constitution offers broader protections than those available under the Fourth Amendment,6 Gant has left judges and lawyers in Washington scrambling to redetermine this already contentious issue.7 A recent oral argument before the Washington Court of Appeals is particularly illustrative - hardly had the deputy prosecutor taken the podium before a perhaps playfully exasperated judge implored, "I hope you can clear this up!"8

The lack of clarity lamented by the court of appeals results from the interaction between article I, section 7, and the new standard contained in Gant. At the time of Ganfs announcement, the prevailing understanding among federal courts was that New York v. Belton9 provided a bright-line standard, authorizing an officer to search the passenger compartment of a vehicle incident to a recent occupant's arrest irrespective of any concerns for the officer's safety or the preservation of evidence.10 Washington State courts adhered to a similar bright-line standard under State v. Stroud,11 with the added protection, as required by article I, section 7, that an officer could not open any locked containers during the search.12

The Gant Court rejected a broad, bright-line reading of Belton, and reduced the applicability of the search incident to arrest exception to two situations. First, reasserting concerns expressed earlier in Chimel v. California,^ the Court held that an officer may search a vehicle incident to arrest when the arrestee is unsecured and within reaching distance of the passenger compartment.14 Second, deriving from Justice Scalia' s concurring opinion in Thornton v. United States, , an officer may search a vehicle incident to arrest when it is reasonable to believe that evidence relevant to the crime of arrest may be found in the passenger compartment.16 The Gant Court therefore established a rule under the Fourth Amendment that was more protective than the bright-line standard previously held permissible under Stroud and article I, section 7 of the Washington State Constitution. …

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