Defendant was pulled over for traffic stop. Officer ran her name and a felony warrant came up from Oklahoma. Officer pulled defendant out of car. He told defendant that she had an outstanding warrant. Defendant says, "that is not me, it must be my sister. She is always using my name." Defendant was very nervous when asked about narcotics. (She had a previous POM arrest.) She requested that she be allowed to get back in her car and sit down.

Officer was awaiting confirmation of the warrant and agreed to let defendant get back in car. He searched the lunge area of the vehicle (without consent) and found a tin can with some baggies of methamphetamine under the driver's seat. He arrested defendant for POCS. When he returned to his office he got the pictures from the Oklahoma warrant that was issued in defendant's name and it turned out that it was actually defendant's sister.

The officer was acting in good faith and believed that defendant had an outstanding felony warrant when he initiated the search. It must be a good search, right?

Sounds like a reasonable search. And that is the standard. An officer need not be right ever time, only reasonable.

You said the officer told her she had a warrant, let her back in the car, waited on confirmation, and at the same time did a nonconsensual search of the "lunge area"? What exception to the 4th amendment warrant requirement are you going to use? It is not a search incident to arrest because he never told her she was under arrest and let her back into the car. There is no consent. I don't think you get to the reasonableness of the search (which I agree was reasonable based on the officer's good faith) until you can prove an exception to the 4th amendment warrant requirement. What do you think?

Seems like her nervousness and desire to get back into the car would be enough reason for the officer to make sure she could not reach anything that might harm him when he returned to make the impending arrest of her. Sounds akin to a Terry search for his safety. Tin can could hold razor blades, volatile chemicals or other items she could use to harm the officer, so reasonable to look into it.

The officer did a fair job in his report of noting her "nervousness" and desire to get back in the car. Of course, he also noted that it was cool and about to start raining. He had asked her where she was coming from and going to and her story didn't really match up. He also knew that she had a previous POM arrest and when he asked her about it she lied. Then she asked to get back in the car. It seems to me that considering all of the circumstances, felony warrant, nervous behavior, previous conviction for POM, her denial of the same, the reality that illegal weapons are often associated with drugs, gave the officer grounds to search the lunge area of the car for his own safety before allowing her to return to the driver's seat.

The automobile exception does not apply, since the officer did not have probable cause to believe the vehicle contained evidence of a crime at the time of the search. Thus, I agree that the search must be justified as being similar to the situation in Terry. Merely by asking to be permitted to sit in her car, it does not seem the suspect was encouraging a search. If the officer was in fear of weapons, he should have denied the request or asked for consent. I also disagree that opening a small, opaque container on the prospect it might present a dangerous item is very reasonable. I do not think Arkansas v. Sanders is to be completely ignored (though overruled). So, how did the officer know about the prior POM offense? Or was that sister's offense as well?

The officer was contacted during the stop by another DPS officer who told him that he had arrested the defendant previously (not the sister) for POM. When the officer asked her about it, she lied, just like she lied about where she was coming from and heading. The car she was driving is registered to a known drug dealer in the area.

Unfortunately for me, the trooper never even asked her if she would consent to a search. He just searched the lunge area before he allowed her back into the car.

OK, was the car door still open, or did your officer have to open the door to search before he let the defendant back in?

From what I've read so far, it seems like he was expecting to find drugs in the tin.

A small tin can is hardly a place a reasonable person would expect to find a weapon. While we can debate that something small and dangerous (like a teeny, tiny nuke) could have been in that tin can, such a belief is hardly reasonable under Terry.

I feel that the search was NOT reasonable for the following:

When the lady was arrested (which I believe happened when the officer told her that he had a warrant for her arrest), she was OUTSIDE and AWAY from the car. Thus, the seach incident to an arrest that he was allowed to do was her immediate person / body, and the lunge area around her body -- all of which was outside of the car.

When he went in the car and searched inside of that little tin can, he violated the 4th Amendment, if my reasoning is true.

BUT EVEN SO, IT DOES NOT MATTER. I believe that you could argue "inevitable discovery."

Since the lady was under arrest, her car would have had to be impounded. And as a part of the impound procedure, an inventory of the car must be conducted (assuming that officer's department has WRITTEN POLICIES on this, if not then you are stuck). As a necessary part of the inventory, that tin can would have been discovered, opened, and its contents inventoried; thus, the drugs would have inevitably been discovered.

Search incident to arrest includes passenger compartment of vehicle when an occupant of the vehicle has been lawfully arrested. Belton SCOTUS from 1981. I guess then the question would be whether the lady was actually under arrest.

I had a similar case on a warrant for the defendant that actually had been recalled but not updated in the computer--that guy was already cuffed and in the patrol car, though. I used a good faith exception case discussing a recalled warrant, it's the White case from the 4th Ct. in 2000 or 2001, 989 S.W.2d 108.

Your search sounds reasonable for the same reasons as the White case used.

As I understand it, you can only argue inevitable discovery on constitutional violations (federal law), but since Texas has a *statute* saying you cannot use evidence obtained in violation of the law, the inevitable discovery doctrine does not apply to the statute, even if constitutionally it would otherwise be permitted.

It would have been easier and cleaner to simply make the arrest and do the impound inventory and/or search incident after she was in custody.

Presuming the lady was under arrest (a reasonable person in her position would certainly assume she was!), then it would be search incident to arrest. My understand of the case law from Texas as well as the Fifth Circuit and above is that when a person in a vehicle is arrested, the "lunge area" or "on or about the person" has been defined to include the passenger compartment of a vehicle but not the trunk.

If the search was justified as a frisk--which based on the circumstances listed by the original poster appears justified (felony warrant, lied to officer, very nervous, wants to get back to the car, inconsistent stories, etc), then whether the tin can could be checked sort of depends on the size of the tin can. Was it large enough to hold a small knife, etc.? Or was it just matchbox size?

As they say in the blogs,

JMHO,

Janette A

The car might not have been inventoried as part of the impound procedure depending on when the photos showing the sister were available. They might have turned her loose before doing the inventory.


If she was effectively under arrest outside a home, but then the officer allowed her to wait inside the the home, does that make it OK for the officer to search the home without consent? What if it was somebody else's home?

See State v. Oages, 11-04-00183-CR, opinion on remand 6/7/07. Very similar circumstances - Belton rule applies.

As to the question regarding a home versus a car search, caselaw clearly draws a distinction between the two. To compare the two is simply is not legally or logically sound.

a home is not a car.

Yeah sorry my bad, that was a bad example for multiple reasons.

Here is Belton quoted within the unpublished Oages remand:

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"when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Belton, 453 U.S. at 460.

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And here is an interesting footnote:

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FN1. The Williams court found that it did not matter that the search incident to the arrest preceded the formal custodial arrest by a few moments, citing Rawlings v. Kentucky, 448 U.S. 98, 100 (1980).

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One significant difference in Oages is the officer explicitly put Oages under arrest and Oages admitted to the officer that she had an outstanding warrant. At the suppression hearing Oages did not dispute the validity of the arrest.

Still, I suspect that the person discussed in this thread would be arguing that she was effectively under arrest if there was something to gain from that position.

I'm still tryin to figure out what a lunge area is.

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I'm still tryin to figure out what a lunge area is.

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You've never taken Yoga, have you?