According to the U.S. Supreme Court in Arizona v. Gant:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

After Gant, it seemed clear that if police charged someone with, let’s say, driving under suspension, and it is not likely that evidence of that crime will be found in the car, and if the car is parked somewhere legally, police cannot search the vehicle incident to arrest.

But, see the last sentence: “unless police… show that another exception to the warrant requirement applies.” In most cases, if police and prosecutors are familiar with caselaw, they can find an exception to the search warrant requirement…  One such exception is the “inventory search.”

When Can Police Do an Inventory Search?

Apparently whenever they want, so long as there is a written policy authorizing it.

The SC Supreme Court held in State v. Miller that when…

• A suspect parked his car at an apartment complex;
• His girlfriend lived at the apartment complex and was present at the scene;
• The suspect refused consent to search his car; but
• The car’s owner was not present;

…the police were justified in doing an inventory search of his vehicle.

Because Columbia, SC police department policy says officers may tow a vehicle if the owner is not present, the SC Supreme Court held that it was ok for them to tow the vehicle and search it as an inventory search (when a vehicle is going to be towed, it must be searched and its contents inventoried anyway).

Is Gant Meaningless Now?

Not really – Gant left open the possibility that other search warrant exceptions would allow police to search your car, and Gant’s holding was already narrow enough that it would rarely apply.

If there is a search warrant exception, it will be exploited by police, prosecutors, and courts. Police want to search your car. Prosecutors want to use the evidence the police found. Courts usually want to help law enforcement.

Gant should still apply if the driver is in their own car (or the owner is present), if they are on their own property or otherwise parked legally, and if evidence of the crime charged would not be found within the car. Well, unless another search warrant exception applies, and, trust me, they will find one if they can.

Charleston, SC Drug Crimes Defense Attorney

Grant B. Smaldone is a criminal defense lawyer in Charleston, SC. If you have been charged with drug crimes following a traffic stop, you may have defenses including Fourth Amendment violations that we can raise before trial.

Don’t delay – the state is building their case against you and your attorney needs to be conducting an independent investigation and building your defense. Call now at (843) 808-2100 or fill out our online contact form to schedule a free consultation.