From the bloggers over at the Federal Defenders of Eastern Washinton and Idaho:
"As previously noted on this blog, the Supreme Court’s recent decision in Arizona v. Gant, 129 S.Ct. 1710 (2009) reins in police officers’ ability to search vehicles incident to arrest, holding that a search incident to arrest is only permissible if the arrestee is within reaching distance of the car at the time of the search or if there is reason to believe that evidence of the arrest will be found in the automobile.
Several cases within this district have been impacted by Gant. The most dramatic involved the following scenario: a patrol officer, running license plate numbers, discovers that a registered owner has outstanding warrants for felony escape and misdemeanor driving with a suspended license. The officer retrieves a booking photograph of the registered owner but leaves the scene after failing to spot that person in the area of the parked vehicle. A short while later, the officer returns and observes the registered owner exiting that same vehicle and beginning to walk back towards a residence, whereupon the officer approaches, arrests him for the outstanding warrants, and places him in the back of the squad car. Incident to the arrest, the officer searches the vehicle and discovers a firearm. The defendant is subsequently charged with being a felon in possession of a firearm (18 U.S.C. Section 922(g)(1)).
A motion to suppress was filed on April 20, 2009, arguing that the search was impermissible on grounds that neither officer safety nor preservation of evidence were at issue, thus placing that search outside of any exception of the warrant requirement. Gant was decided the next day. The government immediately responded by filing a short memorandum, agreeing to suppression.
Other cases in this district that have been impacted include two petitions for certiorari, which were granted, vacated and remanded in light of Gant, and another presently before the Ninth Circuit in which Judge Whaley has ordered the defendant’s release pending appeal, given the likelihood of his conviction being overturned.
These instances confirm the value of spotting and preserving issues on behalf of our clients. Even when current case law appears unsupportive, the law only changes when diligent attorneys chip away in the district courts and preserve issues for appeal."
"As previously noted on this blog, the Supreme Court’s recent decision in Arizona v. Gant, 129 S.Ct. 1710 (2009) reins in police officers’ ability to search vehicles incident to arrest, holding that a search incident to arrest is only permissible if the arrestee is within reaching distance of the car at the time of the search or if there is reason to believe that evidence of the arrest will be found in the automobile.
Several cases within this district have been impacted by Gant. The most dramatic involved the following scenario: a patrol officer, running license plate numbers, discovers that a registered owner has outstanding warrants for felony escape and misdemeanor driving with a suspended license. The officer retrieves a booking photograph of the registered owner but leaves the scene after failing to spot that person in the area of the parked vehicle. A short while later, the officer returns and observes the registered owner exiting that same vehicle and beginning to walk back towards a residence, whereupon the officer approaches, arrests him for the outstanding warrants, and places him in the back of the squad car. Incident to the arrest, the officer searches the vehicle and discovers a firearm. The defendant is subsequently charged with being a felon in possession of a firearm (18 U.S.C. Section 922(g)(1)).
A motion to suppress was filed on April 20, 2009, arguing that the search was impermissible on grounds that neither officer safety nor preservation of evidence were at issue, thus placing that search outside of any exception of the warrant requirement. Gant was decided the next day. The government immediately responded by filing a short memorandum, agreeing to suppression.
Other cases in this district that have been impacted include two petitions for certiorari, which were granted, vacated and remanded in light of Gant, and another presently before the Ninth Circuit in which Judge Whaley has ordered the defendant’s release pending appeal, given the likelihood of his conviction being overturned.
These instances confirm the value of spotting and preserving issues on behalf of our clients. Even when current case law appears unsupportive, the law only changes when diligent attorneys chip away in the district courts and preserve issues for appeal."
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