Anne Arundel County Police arrested two people on Thursday after a search of their car revealed over $10,000 worth of cocaine. What I find of interest is why did they search the car? According to the news article, "Officers approached the vehicle and arrested Johnson on charges that he was driving on a suspended license." Upon checking his vehicle, all of the evidence was found. Another question I have is "when you say 'checking' do you really mean 'searching'? Or did the police see all of the evidence sitting in plain view on the backseat?"
As a criminal defense attorney, I hope the police only found the evidence after searching the car and the justification for doing this without a warrant is "search incident to arrest." If that is the justification for searching the car, all of the evidence should be thrown out of court if the only basis for the arrest was for driving on a suspended license.
Previously, "search incident to arrest" was one exception to the law requiring a warrant before conducting a search. It allowed police to search a person during or following a lawful arrest. With regards to vehicle stops, it allowed police to also search the passenger area of the car if the person arrested was in the vehicle.
That all changed in 2009 when the U.S. Supreme Court decided Arizona v. Gant. In that case, the defendant was arrested for driving on a suspended license and his criminal defense lawyer argued to the court that there was no reason for the officers to search his car following his arrest. He was handcuffed and sitting in the back of the patrol car when the police searched his car.
The court agreed and decided that because he was not presenting a threat to the officers, not within reach of anything in his vehicle, and searching his vehicle would not produce any evidence of the crime for which he was being arrested.
This case severely limited the powers of police. The "search incident to arrest" exception was something that police used very often as a reason to search the entire passenger area of the car. Now, once the defendant is secure and away from the vehicle, the only way the police can legally search the car is if they have reason to believe there is evidence of the crime in the car. And it must be a search for evidence of the crime that allowed the arrest.
Police can no longer search the car under the guise of a "search incident to arrest" for arrests for driving on a suspended license, driving without a license, driving uninsured, etc. These two individuals in Anne Arundel County are going to need an effective Maryland criminal defense attorney to challenge the serious felony charges they are facing.
Written by Colleen Kirby.