Gant is incident to arrest, but wonder how it will play in this scenario. Police stop vehicle for traffic violation. Police know driver as a felon and is known to carry weapons. Police also know of recent activity where driver has used guns in feud with another. Police pat down driver and passenger, they are removed from car, but no arrest because only traffic stop. Police search car because intent to give citation and let them go, but because of history of carrying weapons would be possible safety issue if released with gun in car. Loaded gun found in car under driver's seat. Is the search okay because of the officer's knowledge? Even though not arrested at time -- how would this play out? Would Gant be applied since gun not evidence of crime?

Reasonable suspicion exists based on officer's knowledge of the defendant's history. Officer is going to step away and write a citation, so there is an officer safety issue. It's a frisk of the wingspan. I'm ok with it.

Even Gant recognizes that an officer may search passenger compartment for weapons when he has a reasonable belief that suspect (or another passenger) is dangerous and where the person might access the car and gain control of weapons. Gant, 129 S.Ct. 1710, 1721 (quoting Mich. v. Long, 463 U.S. 1032, 1049)

It seems like the rationale behind the Gant decision would distinguish itself from your facts. The issue in Gant was no access back to the vehicle since the Defendant would be in custody. In your case, you have Defendant access to the car with a citation and release. Officer safety all the way.

I thought Gant would be distinguishable, but concerned because the driver and passenger were removed from the car at the time of the search with other officers at the scene. Sort of opposite of the factors in Belton where police officer was alone with several subjects. A quick search did not reveal any cases since Gant that helped and even though not a search incient to arrest thought the courts might look at Gant for guidance.

It seems to me that it might matter whether this was an arrestable offense or a speeding offense where arrest was not an option. If it was not an arrestable offense, then the officer had no discretion but to detain and release him, so your argument seems strong. On the other hand, if it was an arrestable offense, it just seems too easy for officers to get around Gant by deciding not to escalate the detention into an arrest until after they search the vehicle.

But Doug, should Gant even be relevant if the search itself was based on reasonable suspicion and officer safety? It seems that Terry should cover this.

I agree that officer safety is the key. But, I just think that it may be risky for the officer to claim that the danger comes from a future event like this. If that's the case, it just seems to be too easy a way to avoid Gant in any case simply by having the officer say that the defendant was only being detained with a view to release at the time the search occurred.

This case sounds to me totally outside of Gant, and I don't see a problem. The officer had more than enough reasonable suspicion to warrant a "pat down" of the driver, the passenger and the vehicle itself. The fact that there is more than one officer wouldn't prevent the suspect from reaching under his seat and start shooting. Looking at the totality of the circumstances, I think you are fine.

But Terry and Gant come together in one aspect - whether there really is an "officer safety" issue. Gant merely holds that a suspect being detained away from the vehicle is no longer a threat. If that's the situation here, I think that you are still faced with trying to explain why a detained and removed suspect is, or will be, a threat. The future danger at the time of release argument is good, and may win the day, but I could see it going the other way as well. My advice would be to tread carefully here.

I understand your point, but I see a huge distinction between the cases because in Gant, the defendant was actually in custody with no opportunity to return to the vehicle. In this case, the defendant could have returned at any time even though the officer told him not to. In fact, even if the officer put him in the patrol car temporarily to detain him, but knew that he was going to release him back to his own car at the end of the stop, that still puts the officer at risk once he releases the defendant.