I thought I had a good case but now . .
Officers dispatched to suspicious vehicle. Contact with driver. Terry frisk turns up hydrocodone pills. D is arrested and vehicle is searched. Officers intended, at the time, to impound vehicle. Vehicle is released to D's daughter, at his request. Do I have a problem with the search?
You're asking about the search of the car, not the frisk of the driver? I think you're fine under three ways. (1) Automobile exception. After they found drugs in his pocket, they have PC to believe that there are drugs in the car he was just in. (2) Under Gant, assuming they're arresting him for the pills, they can SITA because they have reason to believe that they'll find more drugs in the car. (3) If they have a regular inventory policy, then they could search under that. They planned to impound the car and searched it accordingly. The fact that someone later turned up to release the vehicle doesn't make the search unjustified after the fact.
Had your officer done anything to initiate towing? Did the defendant or his family initiate the collection of the vehicle? For the trial court, even though the totality of the circumstances should be considered, it probably comes down to a swearing match and the credibility of the officer.
if the MTS comes up ensure the judge knows that the facts of Gant are very different than the facts of this case. i think the officers decision to release the car to a family member is a red herring.
to me the decision in Gant revolved around its particular facts that the defendant was arrested for what we would call DWLS some distance away from his vehicle (approx 10-12 feet) and the testimony of the officer in that case that he searched the vehicle because he thought he could, without any particular connection to the crime for which defendant was arrested.
in this case, you've got the defendant in the vehicle with a drug offense. my reading of gant is that a search of a vehicle incident to arrest is permissible is there is a reasonable belief that evidence of the offense for which Defendant is under arrest might be found in the vehicle
we had a lot of concern in my jurisdiction when Gant first came down, but I can't remember any motions filed based on it. Has it been a big issue for anyone else?
I've seen exactly ONE case where Gant was applicable, and that was on a search that was performed prior to Gant being handed down, but filed with my office afterwards. It was nearly exactly on point with Gant- search after arrest for DWLS, with no reasonable argument for an inventory search. I rejected that one and let the officer know that it wasn't his fault to have the rules changed on him in the middle of the game. Otherwise, I haven't seen anything like the effect that I had been afraid of.
I do agree with Troy though- this is a pretty standard probable cause search, and Gant is a side track you don't even have to start down. In your case you've got a reasonable likelihood of finding additional evidence of the crime in the vehicle, which is contra Gant.
Gant was applied in "incident to arrest" search in -- see McBride v. State, 11-08-00249-CR, 2010 Tex App 2331 (Eastland 4/1/10).
The facts in McBride seem to mirror Gant:
At the hearing on the motion to suppress, Officer Jefferson testified that he stopped McBride because his vehicle had an expired inspection sticker. He indicated that he decided to arrest McBride after learning that his driver's license was suspended. However, before arresting McBride, Officer Jefferson allowed McBride to drive his vehicle to his residence, which was within a block, and park it. After McBride parked his vehicle, Officer Jefferson arrested him, handcuffed him, and took him to his patrol car. While searching McBride for weapons, Officer Jefferson discovered $2,500 in 5s, 10s, and 20s, neatly folded.
Officer Jefferson indicated that he searched McBride's vehicle incidental to his arrest. He stated that during the search he found marihuana and rock cocaine in an ashtray in the center console. McBride protested the search. Officer Jefferson related that he encountered the smell of burnt marihuana in the interior of the vehicle. McBride's vehicle was apparently locked prior to the search.
Is the officer not investigating a potentially different criminal charge when he becomes curious about $2500 in small bills found on the suspect during the the post-arrest pat-down for weapons?
Most people either use a bank or would have mostly $100s and change... not all $2500 in small bills so doesn't that raise suspicion on its own or should the officer get a warrant?
The court did not see it that way -- large sum of money alone usually not enought to raise probable cause without some other signs of illegal activity. Possession of a large sum of money is not illegal in and of itself. $ 27,920.00 in U.S. Currency v. State, 37 S.W.3d 533, 535 (Tex.App.--Texarkana 2000, pet. denied). $ 242,484.00 in U.S. Currency, 389 F.3d at 1161 (quantity of cash alone insufficient to connect it to illegal drug transactions); United States v. $ 191,910.00 in U.S. Currency, 16 F.3d 1051, 1072 (9th Cir. 1994)(any amount of money, standing alone, would probably be insufficient to establish probable cause); United States v. $ 67,220.00 in U.S. Currency, 957 F.2d 280, 285 (6th Cir. 1992)(no court has yet held that the presence of a large sum of cash is sufficient, standing alone, to establish probable cause).
[This message was edited by pkdyer on 07-13-10 at .]
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