Search Incident to Lawful Arrest: Colorado Court Of Appeals: Police Authorized to Search Vehicle’s Passenger Compartment Incident to Arrest as Search Occurred Before Arizona v. Gant (UCOTUS).

I post this summary to discuss the some of the current law relating to the search incident to arrest exception.  Under Arizona v. Gant (and Belton) police may search a vehicle, using the search incident to lawful arrest exception, of a recent occupant only if the passenger compartment is within the arrestees immediate control at the time of the search (Belton) OR police have reason to believe the car contains evidence of the offense of arrest. (Arizona v. Gant).

If this search in this case had been conducted after Gant, the evidence most likely would have been suppressed. The passenger compartment was outside the immediate reach of the occupants at the time of the search – as the men were removed from the car; and the officers did not have reason to believe that the car contained any evidence of the offence of arrest – as they already found the individuals for whom they had an arrest warrant.

There are many other exceptions to the warrant requirement and nuances to each.  This area of law is constantly evolving as the struggle to protect individual privacy rights continues and the scope of those rights continues to be defined.

The Colorado Court of Appeals issued its opinion in People v. Hopper on July 7, 2011.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of two counts of possession of a controlled substance and two special offender sentencing counts. He also appealed the length of his mandatory parole term. The judgment was affirmed.

In March 2007, the police stopped the vehicle defendant was driving to execute an arrest warrant for one of the two other men riding in the car.  After the three men were removed from the vehicle, the police searched it. (Emphasis Added) They found a rifle in the back seat; a sawed-off shotgun on the front floorboard; a handgun on the rear floorboard; and a bag of cocaine and a bag of methamphetamine, both under the driver’s seat. They also found drug paraphernalia, including spoons, cotton swabs, and syringes. Defendant was charged with two counts of possession of a controlled substance, two special offender counts, and one count of possession of a dangerous weapon.

Defendant contended that, because he and his companions were outside the vehicle and in police custody at the time the vehicle was searched, and the police had no reason to believe that evidence related to the arrest would be found in the vehicle, the evidence seized during the search must be suppressed. (Emphasis Added) The search in this case occurred before Arizona v. Gant, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Therefore, the police were authorized to search a vehicle’s passenger compartment incident to a recent occupant’s arrest, and defendant was not entitled to have the evidence seized from that search suppressed. (Emphasis Added).

Defendant also contended that the trial court erred in submitting to the jury two special offender interrogatories, neither of which included a culpable mental state element. The interrogatories, however, tracked the language of the applicable version of the special offender statute, and that version does not explicitly include any culpable mental state elements.

Defendant also contended that the trial court erred in denying his Crim.P. 33 motion for new trial based on newly discovered evidence. Newly discovered evidence must be of sufficient consequence for reasons other than its ability to impeach, or cast doubt on, the evidence already presented at trial. Here, the testimony that defendant offered as new evidence—from inmates who indicated their knowledge that Bowler expressed an intent to testify falsely against defendant—would only cast doubt on Bowler’s testimony and credibility. Therefore, the trial court did not abuse its discretion in concluding that defendant was not entitled to a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on July 7, 2011, can be found here.

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