Divergence Between the Fourth Circuit and Maryland in Extending Arizona v. Gant to Non-Vehicular Searches Incident to a Lawful Arrest

By Megan E. Coleman

Arizona v. Gant, 556 U.S. 332 (2009) involved the search of a vehicle after the driver had been lawfully arrested, handcuffed, and locked in a patrol car. The Supreme Court rendered two holdings, the first, which is relevant for this post, held that the police may not use the search incident to a lawful arrest exception to the warrant requirement to search a vehicle incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.

Gant’s first holding was premised upon Chimel v. California, 395 U.S. 752 (1969), a non-vehicular search case in which it was determined that police may search incident to arrest only the space within an arrestee’s “immediate control”, meaning “the area from within which he might gain possession of a weapon or destructible evidence.” The Chimel holding was then applied to vehicle searches in New York v. Belton, 453 U.S. 454 (1981).

However, the Gant Court limited Belton’s reach, based upon Chimel, since the purpose of allowing a search to prevent a suspect from gaining possession of a weapon or destroying evidence would be rendered nugatory where the suspect has already been secured and cannot access the interior of the vehicle.

For the past decade, in Maryland and in the Fourth Circuit, the holding in Gant has been applied exclusively to vehicle searches.

But on May 7, 2021, in United States v. Howard Davis, the United States Court of Appeals for the Fourth Circuit joined three other federal circuits in concluding that the holding in Gant applies to searches of non-vehicular containers as well. Now, police can conduct warrantless searches of non-vehicular containers incident to a lawful arrest, but “only when the arrestee is unsecured and within reaching distance of the [container] at the time of the search.”

In Davis, Davis led police on a chase, first in his vehicle, and then on foot. When Davis exited his vehicle, he carried with him a backpack. Davis ran into a swamp and became stuck. An officer approached on foot, drew his service weapon and ordered Davis to come out of the swamp. Davis complied by returning to dry land, dropping his backpack, and lying down on his stomach. The officer then patted Davis down and found a large amount of cash on him. The police handcuffed Davis’s hands behind his back and placed him under arrest for felony fleeing to elude and other traffic violations.

Afterwards, the police unzipped his closed backpack and discovered large amounts of cash and two bags of cocaine. Davis moved to suppress the evidence seized from his backpack contending that his rights were violated under the Fourth Amendment. That motion was denied and Davis was convicted of related offenses.

On appeal, Davis urged the Fourth Circuit to apply the first Gant holding to “non-vehicular containers that were not on the arrestee’s person” – in this case, his backpack. The Fourth Circuit did, finding that the first Gant holding applies outside the vehicular context. The Fourth Circuit determined that had the Gant Court intended to limit both of its holdings to vehicular searches, it could have said so, and indeed, the Gant Court specified that the second Gant holding was based on “circumstances unique to the vehicle context” and that it “d[id] not follow from Chimel.” The Gant Court made no similar statement regarding the first holding. Further, the first holding derived from Chimel which was a non-vehicle case.

The Fourth Circuit noted that the Third, Ninth, and Tenth Circuits have reached the same conclusion and that no circuit has held otherwise.

Therefore, for police to conduct warrantless searches of non-vehicular containers incident to a lawful arrest, they can do so “only when the arrestee is unsecured and within reaching distance of the [container] at the time of the search.”

The district court erred in denying Davis’s motion to suppress since he had been secured with his hands in cuffs behind his back, face down, outnumbered by three officers, who were undistracted by anyone else, at the time the backpack was searched. Although the backpack was next to him, it was not reasonably within reach since his hands were cuffed behind his back while he was face-down.

The Fourth Circuit determined that under Gant, an item is not within a person’s immediate control if it is unreasonable to believe that they can access it. In considering the search-incident-to-arrest exception, the proper question before the district court was whether it was reasonable for the officer to believe that Davis could access his backpack at the time of the search. Davis could not.

In Maryland, years before Davis, the Court of Special Appeals of Maryland was presented with a similar argument in Feaster v. State, 206 Md. App. 202 (2012). In that case, Feaster had been arrested by multiple police officers in a hotel room on an arrest warrant. After placing Feaster in handcuffs, officers searched two bags that were 7 to 16 feet away from Feaster. Contraband was discovered which Feaster tried to suppress.

After denial of the motion to suppress, and conviction before the trial court, Feaster argued on appeal that Arizona v. Gant applied in the context of premises searches. Feaster argued that it was not sufficient that the bags were within Feaster’s reach, but rather, that Gant required Feaster’s access to the content in those bags. Feaster argued that the Gant holding was premised upon Chimel and that the broad language in the opinion suggests that the Supreme Court did not intend to limit its analysis to apply only in the automobile setting. Feaster further argued that it is the “possibility of access” that is the fact that needs to be determined.

The Court of Special Appeals found otherwise: “Arizona v. Gant…has absolutely nothing to do with this case. It has nothing to do, moreover, with search incident law or with the Chimel perimeter generally.” The Court of Special Appeals determined that New York v. Belton, Thornton v. United States, 541 U.S. 615 (2004), and Gant, “dealt exclusively with the narrow problem of how to apply the Chimel perimeter to the passenger compartment of an automobile” and that those cases “never presumed to deal more broadly with anything else.” The Court found that Gant did not change the way in which it measures the Chimel perimeter.

The Feaster opinion did not cite to any case that had considered the issue and declined to extend Arizona v. Gant to non-vehicular searches. The Court of Appeals of Maryland denied certiorari in Feaster. One wonders what the Court of Appeals might do in light of the Fourth Circuit’s holding in Davis and the three other federal circuits that have extended Gant to non-vehicular searches incident to a lawful arrest.