Professional Documents
Culture Documents
© iStockphoto.com
s gang members in- will find relevant to their cases. activity, investigators use an
INTERNET
more Web savvy. Internet sites, manner; this process typically
like MySpace, YouTube, Twitter, requires a grand jury subpoena, COMMUNICATION
AIM, and Facebook, continue to administrative subpoena, court Its ease of use, potential
grow in such use, and, thus, of- order, search warrant, or user audience size, and reduced risk
ficers need to understand how to consent pursuant to the Elec- of user detection has made the
investigate gang-related activity tronic Communications Privacy Internet one of the most promi-
in an online environment. Act (ECPA) to get the service nent methods of gang communi-
Many of these Web sites con- providers to comply.1 By ex- cation. Gangs of every ethnicity
tain information that investigators ploiting gang members’ online and age group in jurisdictions
April 2011 / 1
across the nation and beyond sophisticated home pages share crimes, identity theft, and fraud;
increasingly take advantage of a number of common elements, conduct recruitment activities;
today’s advanced telecommuni- such as unique slang; members’ provoke rival groups through
cations capabilities. e-mail addresses; forums for derogatory postings; and spread
Most gang members have gangsters’ opinions; sections their message and culture.
a personal Web page (usually dedicated to honoring deceased
through a free Internet service), members; and links to affiliate VARIETY OF
social networking account, or gangs’ e-mail addresses and INFORMATION
chat room access. These users Web sites. Many times, officers will
can create profile pages, which Gangsters conduct various find gang-related Web pages;
may include general biographi- types of activity online. Many secure sites that require pass-
cal information; lists of their of them routinely place videos words accessible only to gang
favorite musicians, books, and on YouTube featuring them members; or links to gangsters’
movies; photos, at times featur- even, at times, singing about instant messaging, e-mail,
ing them and their friends dis- their criminal lifestyles. Oth- audio, or text-messaging ser-
playing gang-related hand signs ers advertise prostitutes on the vices. On other occasions,
or holding weapons; videos Internet. Members of gangs investigators may locate one via
of themselves and associates, use Web sites to glorify their an informant who may pro-
perhaps even talking openly group and its members; recruit vide, if necessary, a name and
about their exploits; and links new gangsters; inform other password needed to access and
to related Web pages. They also members of meetings, parties, explore the site. Or, an officer
can send and receive personal and other relevant informa- will formally request the needed
messages and communicate pri- tion; commit criminal activity, information.
vately in chat rooms. The more such as intellectual property Gang members’ Web pages
often help to prosecute them.
While pursuing pertinent on-
line information, investigators
“
must understand the law and
recognize exactly what they and
Its ease of use, the service providers can do.
potential audience size, Officers also should know how
and reduced risk of user gang members use the Internet
detection has made the and should use against them
Internet one of the most their desire for recognition and
prominent methods of respect in their subculture.
gang communication.
Basic Subscriber Data
”
Basic subscriber informa-
tion may include gangsters’ first
Dr. O’Deane, a former detective, is an investigator with the San Diego and last names, user identifica-
County, California, District Attorney’s Office and is an adjunct tion number, e-mail address,
professor at Kaplan, Brandman, and National Universities.
registered mobile number,
“
accounts. warrant, or user consent. For
The author has had suc- example, an investigator may
cess by accessing and explor- present a warrant asking the
ing informants’ accounts (upon …investigators provider for records pertaining
gaining their consent) to find must understand the to a particular user ID, includ-
information on targets—often law and recognize ing the person’s name, postal
fellow gang members—of in- exactly what they and code, country, and e-mail ad-
vestigations and then taking the the service providers dress; date of account creation;
necessary steps to gain addition- can do. IP address at account sign-up;
al data (e.g., a user’s name, date logs showing IP address and
of birth, address, gender, and date stamps for account ac-
”
private message information). cesses; and the contents of
When dealing with service pro- the user’s inbox and sent mail
viders, investigators will benefit folder.
by having valuable informa- Private Messages
tion up front. Requests without Private messages in a gang- Photoprint
specifics typically require more ster’s inbox remain available The photoprint is a compila-
time and effort to identify a par-until the individual removes tion of all photos uploaded and
ticular user account. Generally, them. Service providers do not not deleted by the user, along
officers will need a court order maintain copies of messages with those uploaded by another
under Title 18, U.S. Code, Sec- marked for deletion by a user individual and featuring a tag
tion 2703 (d); a search warrant; and cannot recover them once of the user of interest. A request
or user consent. deleted. And, without an already should specify photo prints
operational Title III wiretap, related to a particular user ID.
IP Log-In Records investigators have no access to Officers should remember that
Investigators can access logs them. Gang members’ private these pictures typically are de-
showing the IP address assigned messages not manually deleted livered in PDF format and con-
to users and the dates and times stay in the sent box for 14 days. tain profile information, such
April 2011 / 3
as links to other photos, videos, copies of viewed pages—stored officers can have a program that
and blogs. The process required on the local machine until the not only will follow people in
to get this information involves user or computer removes them. real time but provide turn-by-
a grand jury or administrative This can include viewed turn directions on how to get
subpoena; court order in which images. to them. Gangsters often want
the government provides prior To obtain such information, their friends to know where
notice to the subscriber under investigators should include they are, but, if their friends
Title 18, U.S. Code, Section personal computers in all gang- know, so can their enemies.
2703 (b)(2) (or delays notice related search warrants when Many of these individuals add
under Title 18, U.S. Code, Sec- appropriate and should search a location to their tweets letting
tion 2705); search warrant; or and seize the machines in ac- all of their friends know where
user consent. cordance with these warrants to they are. This, of course, can be
gather as much evidence against used by rival gang members to
Videos find or set them up by intercept-
Gang members often post ing tweets or by having associ-
videos of themselves, some- ates pass these messages along
times conducting incriminating to them.
activity, on Web sites, such as
YouTube. These videos provide PROCUREMENT
an excellent way to prove that PROCEDURES
individuals in an investiga- For information requests,
tion are gang members. As the service providers need the iden-
videos are public domain, they tity of requesting officers; their
need simply to be downloaded. agency; employer-issued e-mail
Later, they can serve as valuable address; telephone contact,
evidence for a jury. including area code and exten-
© iStockphoto.com sion; and department mailing
Forensic Evidence address (a post office box often
In many cases, a tremen- a gangster as possible. These will prove insufficient). They
dous amount of information, search warrants are defined un- also must have a response due
such as instant messenger chat der Title 18, U.S. Code, Section date, which typically should
and client logs, may exist on the 2703. allow them at least 2 to 4 weeks
gangster’s personal computer— for processing. Service provid-
of course, not in the possession Location Tools ers also should receive from
of the service provider. Cookie Investigators also can take investigators specific details
data can remain on a gangster’s advantage of applications that pertaining to the account, such
computer for extended periods can allow someone to locate as dates of interest—data per-
of time if the individual did not a cellular telephone from a taining to large periods of time
clear it after using the machine computer or another cell phone. may be unavailable or labor
to access an ISP account. In- While designed to locate a lost intensive to retrieve. Most of
vestigators easily can find that cellular device, these applica- the communication between
information. The same is true tions can find a potential victim the requesting officer and the
with cached pages—electronic just as well. For a nominal cost, service provider will be via
“
or subpoenas. Title 18, U.S. seek information, the amount
Code, Section 2706, defines and of their choice, to enable them
governs these compensation to determine whether an emer-
matters. This does not require A search of gency exists. Typically, an
government agencies seeking the cyber world emergency disclosure statement
certain categories of informa- should be part of by law enforcement, including
tion to pay for subpoena com- every major gang a description of the nature of
pliance unless the request is investigation…. the emergency (e.g., potential
overly burdensome. bodily harm or kidnapping), is
required; and, even though the
”
Search Warrants guidelines may vary slightly
As with all warrants, inves- between service providers, most
tigators need to explain why require essentially the same
they need the information. For facts.
example, officers may want to Emergency Disclosures Pursuant to Title 18, U.S.
tell the judge that based on their Web providers voluntarily Code, Sections 2702 (b)(7) and
training and experience, they can disclose information, in- 2702 (c), officers need to give
know that gang members and cluding user identity, log-in as much information as pos-
their crimes are inherently con- information, private messages, sible to persuade the provider to
spiratorial in nature and involve and other data, to federal, state, supply the information needed.
continual and regular contact or local authorities when they Investigators should seek only
between the gangsters. As such, believe in good faith that an information they believe will
the investigators would believe emergency involving danger assist them in protecting those
that by securing the requested of death or serious physical potentially affected by the emer-
information for the appropriate injury to any person requires gency. Officers must attest that
time period that they will collect such disclosure without delay. the request is true and accurate
sufficient evidence to identify Emergency disclosures must to the best of their knowledge
the criminals. meet the threshold requirements and sign the request.
And, just like every other of the ECPA as demonstrated in
search warrant, officers need to writing by the requestor. Law User Consent
identify the account information enforcement officers must be Similar to when they knock
of interest and the items they careful not to include a promise on doors and ask for consent
April 2011 / 5
© Thinkstock.com
“
members followed by a threat
to his family and a listing of CONCLUSION
his home address. Clearly, this Investigators have access to
situation demanded immediate Gang members’ much information online that
attention. Web pages often can help them in their cases
With the witness’ consent, help to prosecute against gang members. A search
the author examined the phone them. of the cyber world should be
and obtained the necessary part of every major gang in-
information to get a warrant vestigation; it should not be
”
to identify the source of the an untapped resource in any
threats. The service provider jurisdiction. Officers should
was contacted, and a warrant take advantage of the informa-
was drafted that resulted about visitor took cell phone pictures tion superhighway to make the
5 hours later in the identifi- subsequently posted on MyS- community safer and success-
cation of the account holder pace of two of them throwing fully prosecute gangsters by
sending the threats. The follow- up gang signs while waiting in using against them their desire
ing day, the fugitive task force a holding tank for the trial to to be well-known, respected, and
arrested this individual. As it begin. Once confronted with the feared. It takes effort and time
turned out, a gangster in court photos, they stopped their deni- but has proven in many cases to
had been relaying information als of gang affiliation. Further, be well worth it.
to a fellow gang member in investigators knew when and
another state. This individual where the photos were taken. Endnotes
1
then forwarded the texts to the Title 18, U.S. Code, Section 2701, et
Case #3 seq. For additional guidance on the issues
witness in an attempt to get
discussed in this article, access the Web site
him to recant or fail to testify. On a Web page, a gang of the U.S. Department of Justice, Comput-
Fortunately, it did not work. member had pictures of him- er Crime and Intellectual Property Section
The witness took the stand and self holding several guns and (CCIPS) at http://www.cybercrime.gov/.
April 2011 / 7
Leadership Spotlight
April 2011 / 9
Law Enforcement
Professionalism merican law enforcement
Dr. Pinizzotto, a retired FBI senior Mr. Bohrer, a retired Maryland State Mr. Davis, a retired police
scientist, is a clinical forensic Police sergeant and range master lieutenant and FBI Academy
psychologist who privately consults for the Maryland Police and Cor- instructor, owns a private
for law enforcement and other rectional Training Commissions, is consulting company in
criminal justice agencies. a self-employed law enforcement Virginia.
instructor and consultant.
April 2011 / 11
to overseeing rank-and-file all, everything else sits on the and specialized training, just
members and to developing foundation. Without the proper like the initial recruit selection
instructional abilities) foundation materials (the recruit and training, as a long-term in-
4) Administrator training and the entrance-level training), vestment. Building a house well
(influences direction and the long-term product has no with a solid foundation creates a
operational effectiveness guarantee of success. positive investment, but, with-
of the organization) out maintenance, unexpected
Maintenance Training problems will develop.
The authors offer these four As with any house, police
categories of training only as training must be maintained. Supervisor Training
a guide that can represent the This involves the in-service and
training in any agency. Not Even with the proper main-
specialized continuum of train- tenance, at some point, a house
meant to be all inclusive, these ing that officers need. Select-
do not encompass every pos- may need remodeling. The
ing appropriate candidates and same holds true in police train-
sible training need, but give an
overall view. When examining ing. Oftentimes, agencies select
“
their training needs, agencies officers who excel at a particu-
should take the overall view be- lar skill to become supervisors
cause training greatly influences and trainers, which does not
and shapes the interdependency Law enforcement always work well. Those who
and interrelationships of their executives now must mold and build the raw materi-
als (the recruits) into effective
officers, units, and ranks and reduce budgets that and efficient officers and who
affects every law enforcement in many cases, they
function. take seasoned professionals
viewed as inadequate and form them into supervisors
Entrance-Level Training to begin with. and managers need to receive
Viewing police training as specific training following an
”
a house requires starting with extensive selection process. Su-
sound raw materials: the re- pervising and instructing others
cruits. The right training can require not only subject-matter
shape the recruit into a poten- providing sound entrance-level expertise but also the ability to
tially long-term effective and training began the process of accurately convey knowledge to
efficient employee. Entrance- turning the raw materials (re- others. Continued training for
level training does not end or cruits) into the solid structure. supervisors and instructors must
finish the training process but, When quality recruits receive include evaluating their training
rather, allows the recruit to the correct entrance-level train- skills and how well they apply
operate with minimum super- ing, they gain the knowledge, them.
vision and to continue learn- skills, and attitudes to become
ing through experiences and effective and efficient officers Administrator Training
in-service training. Selecting for a long time. However, if the The final category, admin-
quality recruits is like choos- training stops at that point, their istrator training, frequently is
ing the best materials to build efficiency can decline. Agencies overlooked. Agencies often as-
the foundation of a house. After should view regular in-service sume that officers who worked
April 2011 / 13
Safeguard Spotlight
April 2011 / 15
Negatives 5) Ritualists
• Must rely on a rigid schedule and a high • Develop rituals (e.g., playing with kids,
energy level prayer) to diffuse stress or to help
• Depend on an external coping skill and are compartmentalize
vulnerable if unable to exercise and without • Have developed a creative and hardy
another coping style approach to coping
• Engage in therapeutic coping that could have
3) Challenge Seekers healing properties
• See difficulties as challenges • May engage their existential/spiritual
• Have a resilient perspective beliefs
• May try different coping styles to master • Make good use of time—less time consum-
tasks and stress ing in the long run to develop a ritual
• Sharpen existing coping skills
Negative
Negatives • May need to complement rituals with other
• Sometimes apply undue pressure on coping methods
themselves
6) Professionals
• May let their guard down (become compla-
• Focused on the evidence, not the personal
cent) when they feel comfortable, giving the element
perception that they have reached mastery
level and, thus, needing to continuously use • Mentally diffuse/compartmentalize the
this coping style content
• Use what psychologists may label as a
4) Team Players cognitive strategy—increases coping
• Actively engage with coworkers (e.g., use abilities
dark humor)
Negatives
• Develop supportive relationships on and
off the job • May minimize the strength of the evidence
• Can vent, or express their feelings, well • Could have difficulties processing the affec-
tive component and its impact, or when they
• Use healthy processing of emotions need a break (enough is enough)
• Make excellent colleagues/teammates
• Create a safe environment in which people 7) Pragmatists
can process their responses to images • Were “volunteered” to do this duty—was not
an option
Negatives • May just be focusing on what is practical
• Although team players, have to work solo to them
• May have a team comprised of distant rela- • Want to work this duty partly because
tionships or, perhaps, featuring persons it works well with their schedule or
who cause stress commute
April 2011 / 19
access all of the same information systems avail- This system mitigates the risk of losing our data if
able at the police station. Also, as many of the tools one database collapses. It also allows personnel to
are Web based, we equipped the mobile computer search for information in new ways and even pro-
with Internet access so that officers can take full duces a hard copy report. This duplication reduces
advantage of these systems from their patrol cars. employees’ fears of technology failure connected
with transitioning to a paperless world.
Report-Writing Software
Iowa state officials provided our department Crime Analysis
with new report-writing software at no cost. With After we implemented this new technology,
this software, immediately after a car accident, we needed an employee who would manage and
a device sends crash data directly to the Iowa operate these new tools full-time; therefore, we
Department of Transportation and citation data hired a crime analyst to mine the data to dis-
directly to the clerk of court. cover patterns and trends in
To expedite this process criminal behavior. To make
even further, we commis- our analyst as productive
sioned a third-party vendor as possible, we provided
to interface the report-writ- her with an even more so-
ing tool with RMS so that we phisticated version of our
can electronically transmit technology⎯she works with
data from the cars into our powerful software that mines
central records. The software our data in greater detail.
generates a report that draws We also wanted the rest of
from our criminal informa- the department to learn from
tion reports, crash reports, our analyst’s assessments, so
electronic citations, and elec- we worked with vendors to
tronic warnings. Then, su- set up an automated process
pervisors accept or reject the that plots this crime data on
report through the electronic an electronic map. We then
review process before the purchased a Web-based tool
information enters RMS. With these upgrades, the that makes this crime map available to all users,
system makes information available to the whole whether in the station or a patrol car.
agency within 24 hours of the incident. Once a month, we meet to review this crime
The report-writing software also generates a data and discuss ongoing trends. Officers must be
field interview report. Here, officers document prepared to speak about worrisome patterns and
any suspicious information they discover during steps they have taken to reverse the trends. This
an interview or any event they deem notable but meeting serves as a great communication tool be-
that does not fit into a specific category in other cause it allows all areas of the department to stay
paperwork. Our personnel review this data daily abreast of current challenges and offer solutions.
to examine if it correlates with any larger crime The crime analyst also helps keep these tools
trends. relevant to the daily tasks of officers. At the month-
ly meeting, she presents a report that indicates
Backup Database when we received service calls, what departments
In addition to the data in RMS, we store elec- they pertained to, and what reports were authored;
tronic images of the reports in a second database. she even breaks down the calls by both time of
April 2011 / 21
only if employees embraced them and used them the tools to our Police Chief’s Advisory Council,
properly. Our department immediately intro- a group of community members who we consult
duces all new officers to the proactive policing about new ideas, programs, and services. We
philosophy and tools during their initial 12-week explained our proactive policing philosophy and
field-training period. We instruct them on how to how our new tools contributed to this ideology,
input information into the reporting systems, as and the group supported our ideas. We also devel-
well as how to access the information systems that oped a presentation with a slide show and a live
might help them piece together the puzzles of their demonstration of the crime-mapping tool, and we
investigations. showcased it to any stakeholder group who would
To train our employees more specifically for listen. We also demonstrated the crime-mapping
each device, whenever we roll out a new tool or tool at area GIS conferences.
software, we hold 1-day
training sessions for all LESSONS LEARNED
department employees. WDMPD initiated this
To follow up, during journey to improve police
in-service training, we services in 1999. As we
reinforce to officers how look back to where we
to access the information started and where we are
they gather during inves- now, we clearly learned
tigations. We continually many lessons to get to this
instruct our employees point.
on how to analyze crime First, a successful or-
maps, access the RMS, ganization demands three
and reach out to the crime components: people,
analyst for assistance. processes, and technol-
The initial 1-day ses- ogy, and this means that
sions provide the neces- commercial off-the-shelf
sary foundation for the products alone will not
technological overhaul. But, to truly engrain the progress an agency. Departmentwide improve-
new tools in the department’s daily operations, ments require not just advanced technology
we conduct the additional sessions and monthly but also support from employees and heavy
crime-analysis meetings to remind our employees logistical planning.
of the benefits of these tools. Sufficient training Second, no one can build a department’s pro-
is crucial for the success of any technological cesses and systems better than its own personnel.
changes; without a strong commitment from our Therefore, someone or several people in the de-
employees, these new tools would remain under- partment must learn about the systems inside and
used, and the department never would transition out and put them into practical application. Before
from a reactive department to a proactive one. a department purchases anything, personnel must
thoroughly research the vendor, and someone
Community Feedback must serve as the project manager to take owner-
Before we fully implemented these changes, ship of the project and drive its success. Several
we engaged the community to inform them of our other employees need to become experts with the
efforts and solicit their feedback. We first showed new tools to teach others how to use them and to
April 2011 / 23
Legal Digest
© Mark C. Ide
n April 21, 2009, the provide broad justification3 for article examines how lower
“
Court, searches conducted
without a warrant are presumed
unreasonable.7 However, the …the Court
Court has recognized a “few limited this Fourth
specifically established and Amendment search
well-delineated exceptions”8 to authority to two
the search warrant requirement, circumstances….
to include searches incident to
lawful arrest.9 This exception, as
defined by the Court in Chimel
v. California,10 “derives from
interests in officer safety and
evidence preservation that are
”
Special Agent Myers is a legal instructor at the FBI Academy.
April 2011 / 25
that his vehicle was searched.21 According to the court, the facts effectuate an arrest so that a
Under these circumstances, presented in this case are “text- real possibility of access to the
the Court determined that the book examples of ‘[t]he safety arrestee’s vehicle remains.”28
defendant had no access to his and evidentiary justifications However, when announcing the
vehicle and that the search of underlying Chimel’s reaching holding of the decision (and
his vehicle incident to his arrest distance rule....’”).25 articulating the new two-part
was unreasonable under the first Outside of a Gant-like fact rule), the Court dropped any
prong of the Gant test.22 Clearly, pattern, where the arrestee is reference to the arrestee being
if an individual has been ar- handcuffed and placed in the secured or unsecured and sim-
rested, placed in handcuffs, and back of a patrol car, the analysis ply stated (under the first prong
secured in a police vehicle, the under this first prong of Gant of the test) that police “may
first prong of Gant does not becomes more challenging. search a vehicle incident to a
permit law enforcement officers recent occupant’s arrest only
“
to conduct a search incident to if the arrestee is within reach-
arrest of the passenger compart- ing distance of the passenger
ment of that individual’s motor compartment at the time of the
vehicle as the individual no The key to search.”29
longer has access to the vehicle. understanding the In Boykins v. State,30 the
Courts interpreting the Supreme Court of Appeals of Georgia
Court’s ruling agree that search-
second prong of interpreted this first prong of
es incident to arrest under these the Gant test is to the Gant rule “to mean that the
circumstances would be unrea- define “reasonable police may conduct a search of
sonable under the first prong of to believe.” the passenger compartment of
Gant.23 However, if there are the arrestee’s vehicle incident
”
multiple occupants in a vehicle to his lawful arrest in the ‘rare
and one occupant is arrested, case’ in which the arrestee has a
handcuffed, and secured in a ‘real possibility of access’ to his
police vehicle, the search of the Some of the difficulty derives vehicle.”31 In analyzing Gant,
passenger compartment of the from the language used in the the court emphasized that the
vehicle nevertheless may be majority’s decision in Gant. In requirement that the arrestee
permissible incident to arrest if several parts of the decision, be “unsecured” was “notice-
the other occupants still have the Court refers to whether ably absent” from the Supreme
access to the vehicle. For exam- the arrestee is “secured”26 or Court’s first prong of the rule.32
ple, in United States v. Davis,24 “unsecured”27 and within access In Boykins, the defendant
the Eighth Circuit Court of of the vehicle at the time of the had been arrested on an out-
Appeals upheld the search of search when analyzing the first standing probation warrant,
the passenger compartment of part of the test. Moreover, in handcuffed, and stood outside
a vehicle incident to arrest of a footnote, the Court explains of his vehicle under the control
the driver when the three re- that “[b]ecause officers have of a policeman when his vehicle
maining, unsecured, and intoxi- many means of ensuring the was searched by another of-
cated occupants “were standing safe arrest of vehicle occupants, ficer. The Court noted that “the
around a vehicle redolent of it will be the rare case in which trial court apparently inferred
recently smoked marijuana.” an officer is unable to fully from the officer’s testimony that
April 2011 / 27
is a real or reasonable possibil- this prong is “consistent with [b]ut in others, including Belton
ity that the defendant can access the holding in Thornton”50 and and Thornton, the offense of
the passenger compartment is based on Justice Scalia’s con- the arrest will supply a basis for
to obtain a weapon or destroy curring opinion in that case.51 searching the passenger com-
evidence at the time of the Additionally, this second prong partment of an arrestee’s vehicle
search. When an arrestee has is “unique to the automobile and any containers therein.”55 Of
been handcuffed and secured in context.”52 note, both Belton56 and Thor-
a police vehicle, the justification The key to understanding ton57 involved arrests for drug
for a subsequent search inci- the second prong of the Gant offenses.
dent to arrest of the passenger test is to define “reasonable to The majority in Gant did
compartment of the arrestee’s believe.” In Gant, the police not provide further explanation
vehicle no longer is present arrested the defendant for driv- or guidance as to the second
under the first prong of the test. ing with a suspended license.53 prong of the test. As stated by
However, when the arrestee has The Court found the subsequent Justice Alito in his dissenting
been handcuffed but not yet se- search incident to arrest of the opinion, this “creates a host of
cured in a police vehicle, there uncertainties.”58 Not surprising-
“
is case law in support of permit- ly, lower courts have struggled
ting the search of the passenger with the language of this part of
compartment of the arrestee’s the test and have come up with
vehicle incident to arrest for To understand myriad interpretations.
weapons and evidence as long when an arrestee An analysis of these lower
as the arrestee still is within is outside of the court opinions reveals some
reaching distance of the vehicle. reaching distance of commonalities. First, the courts
This is not to recommend that the passenger generally have not interpreted
officers keep recently arrested compartment of a the “reasonable to believe”
subjects near their vehicles so motor vehicle, it is best standard as being synonymous
that such searches may be justi- to start with the with probable cause. The vast
fied as officer safety remains of facts of Gant. majority of courts interpreting
paramount importance. Gant have concluded that the
”
standard is less than probable
“Reasonable To cause, reasoning that a probable
Believe” Standard cause standard merely would
The second prong of the defendant’s vehicle to be un- duplicate the level of proof re-
Gant test permits the search of reasonable as it was not likely quired under the motor vehicle
the passenger compartment of a that the police would discover exception.59 However, if the
motor vehicle following the ar- offense-related evidence dur- standard is not probable cause,
rest of a recent occupant of that ing the search.54 The Court ex- what is it? Courts interpreting
vehicle when “it is reasonable plained that “[i]n many cases, this part of the test are not in
to believe the vehicle contains as when a recent occupant is agreement.60 There has been
evidence of the arrest.”47 This arrested for a traffic violation, a wide range of explanations
prong does not deal with ac- there will be no reasonable of the test,61 but most courts
cess48 and is not tethered to the basis to believe the vehicle conclude that “reasonable to
holding of Chimel.49 Instead, contains relevant evidence... believe” is determined in one
April 2011 / 29
offenses,81 illegal firearms,82 If the arrestee no longer or follows the prerequisite and
driving under the influence,83 has access to the passenger scope of another recognized
and fraud and abuse.84 It must compartment of the vehicle, search warrant exception.86
be remembered that this search the officer must determine if While the holding of Gant
authority is limited to evidence it is reasonable to believe that restricted searches incident
of the crime for which the arrest evidence of the offense of the to arrest, it had no impact on
was made “or of another crime arrest is located in the passenger the other exceptions, such
that the officer has probable compartment of the vehicle to as consent,87 the emergency
cause to believe occurred.”85 be searched. Courts have dif- exception,88 the motor vehicle
fered in their interpretation of exception,89 and the inventory
Conclusion this second prong of the test, exception.90
While the U.S. Supreme and, until the Supreme Court
Court has limited the ability Endnotes
specifically addresses this issue,
of law enforcement to search 1
556 U.S. ----, 129 S. Ct. 1710 (2009).
2
the passenger compartment of In New York v. Belton, 453 U.S. 454,
“
460, 101 S. Ct. 2860, 2864 (1981), the
a motor vehicle incident to the U.S. Supreme Court held that “when a
arrest of a recent occupant of policeman has made a lawful custodial
that vehicle, it certainly has not arrest of the occupant of an automobile, he
eliminated this viable search
While the holding may, as a contemporaneous incident of that
warrant exception. However, of Gant restricted arrest, search the passenger compartment
officers applying this exception searches incident of that automobile.” In Thornton v. United
to arrest, it had no States, 541 U.S. 615, 124 S. Ct. 2127
must be familiar with the word- (2004), the Court extended the holding of
ing and meaning of the Court’s impact on the other Belton to allow for the lawful search of the
two-part test articulated in Gant. exceptions…. passenger compartment of a motor vehicle
It also must be remembered that following the arrest of a recent occupant of
”
that vehicle.
facts satisfying either prong of 3
Gant at 1718-1719.
the test will result in a reason- 4
Id. at 1723.
able search incident to arrest. 5
Id. at 1714-1716.
6
Under the first prong, the it is incumbent on law enforce- Id. at 1719. A detailed account of the
defendant still must have a ment officers to learn and facts of Gant and an in-depth review of the
legal precedent leading up to the decision
real possibility of access to the follow the precedent of their have been the subject of a previous Law
vehicle at the time of the search respective jurisdictions. The Enforcement Bulletin article and will not
for this part of the test to be sat- two most common interpreta- be repeated herein. See Richard G. Schott,
isfied. This has become a fact- tions of the second prong of the “The Supreme Court Reexamines Search
specific, case-by-case determi- test are the reasonable suspicion Incident to Lawful Arrest,” FBI Law
Enforcement Bulletin, July 2009. Addition-
nation for the officer to make at standard and the nature-of-the- ally, the retroactive application of Gant,
the scene of the arrest. Factors offense test. whether police may rely on a “good faith”
in this analysis include whether Even if both prongs of the exception to the exclusionary rule for pre-
or not the subject is handcuffed, Gant test are inapplicable, a Gant searches, and the extension of Gant
search of a passenger compart- beyond the motor vehicle context all are
or secured in a police vehicle,
beyond the scope of this article.
the proximity of the subject to ment of a motor vehicle still 7
Gant at 1716 (citing Katz v. United
the vehicle to be searched, and would be considered reasonable States, 389 U.S. 347, 357 (1967)).
subject-to-officer ratio. if the officer obtains a warrant 8
Id.
April 2011 / 31
53 80
Id. holding in Gant to require an officer to sus- Id. at 677.
54 81
Id. at 1719. pect the presence of more direct evidence United States v. Wright, 374 Fed.
55
Id. of the crime of arrest than...highly indirect Appx. 386, 391, 210 WL 1500520 (C.A.4
56
453 U.S. 454, 456, 101 S. Ct. 2860, circumstantial evidence...). 2010); United States v. Brown, 2009 WL
68
2864 (1981). 229 P.3d 1054, 1056-1057 (Colo. 2346668 (S.D. Ind. 2009); United States v.
57
541 U.S. 615, 618, 124 S. Ct. 2127 2010). Page, 679 F.Supp.2d 648 (E.D. Va. 2009);
69
(2004). Id. and United States v. Conerly, 2010 WL
58 70
See Megginson v. United States, 129 Gant at 1714, 1719. 4723434 (E.D. Mi.2010).
71 82
S. Ct. 1982 (2009) and Grooms v. United 532 U.S. 318, 324, 121 S. Ct. 1536, People v. Osborne, 175 Cal.App.4th
States, 129 S. Ct. 1981 (2009) (dissenting 149 L.Ed.2d 549 (2001). 1052, 1065, 96 Ca.Rptr.3d 696 (Cal.App.
72
opinions of Justice Alito in two matters Id. at 321. Dist.1 Div.4 2009).
73 83
before the Court that were remanded for 525 U.S. 113, 118, 119 S. Ct. 484, Commonwealth v. Elliott, 322
further consideration in light of Arizona v. 142 L.Ed.2d 492 (1998). S.W.3d 106, 110 (Ky. App. 2010); Idaho
74
Gant). New York v. Belton, 453 U.S. 454, v. Cantrell, 233 P.3d 178, 183 (Idaho App.
59
See, for example, United States v. 460, 101 S. Ct. 2860, 2864 (1981). 2010); but see United States v. Reagan,
75
Vinton, 594 F.3d 14, 25 (DC Cir. 2010), Thornton v. United States, 541 U.S. 713 F.Supp.2d 724, 733 (E.D. Tenn. 2010)
cert. denied 131 S. Ct. 93 (2010); United 615, 124 S. Ct. 2127 (2004). (DUI arrest alone, without particularized
States v. Polanco, ---F.3d.---, 2011 WL and articulable reason to believe evidence
“
420747 at * 4 (C.A. 1 2011); People v. of DUI is contained in vehicle at time
Chamberlain, 229 P.3d 1054, 1057 (Colo. of search does not satisfy reasonable-to-
2010); United States v. Leak, 2010 WL believe standard).
84
1418227 (W.D.N.C. 2010); Powell v. Com- United States v. Owen, 2009 WL
monwealth, 57 Va. App. 329, 339, 701 S.E. …facts satisfying 2857959 (S.D. Miss., South. Div. 2009).
2d 831 (Va. App. 2010); Idaho v. Cantrell either prong of the 85
Gant at 1714, 1725 (Scalia, J., con-
233 P.3d 178, 183 (Idaho App. 2010); but, test will result in a curring); and Deemer v. State, ---P.3d.---,
see United States v. Grote, 629 F.Supp 2d 2010 WL 5187698 (Alaska App. 2010).
1201, 1203 (E.D. Wash.2009) (reasonable reasonable search 86
Gant at 1724.
to believe equates to probable cause). incident to arrest. 87
Schneckloth v. Bustamonte, 412 U.S.
60
State v. Gamboa, 2010 WL 2773359 218 (1973).
88
Schmerber v. California, 384 U.S.
”
(Ariz. App. Div. 1 2010) (unreported).
61
Id. 757 (1966); Michigan v. Long, 463 U.S.
62
Megginson v. United States, 129 S. 1032, 103 S. Ct. 3469, 77 L.Ed.2d 1201
Ct. 1982 (2009). (1983); and Maryland v. Buie, 494 U.S.
63 76
594 F.3d 14 (D.C.Cir. 2010), cert. Gant at 1714, 1719. 325, 110 S. Ct. 1093, 108 L.Ed.2d 276
77
denied 131 S. Ct. 93 (2010). Id. (1990).
64 78 89
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. Brown v. State, 24 So.3d 671, 678, United States v. Ross, 456 U.S. 798,
1868, 20 L.Ed.2d 889 (1968). 34 Fla. L. Weekly D2593 (D.C. App. 820-821, 102 S. Ct. 2157, 72 L.Ed.2d
65
594 F.3d 14, 25 (D.C. Cir. 2010), Fla. 2009), review denied 39 So.3d 1264 572 (1982); United States v. Polanco,
cert. denied 131 S. Ct. 93 (2010). (2010); endnote 79. ---F.3d.---, 2011 WL 420747 at * 3 (Co. 1
66 79
229 P.3d 1054 (Colo. 2010). United States v. Lopez, 567 F. 3d 2011).
67 90
Id. at 1057. See also People v. 755, 758 (C.A. 6 2009) (reckless driving); South Dakota v. Opperman, 428 U.S.
Perez, 231 P.3d 957 (Colo. 2010); United United States v. Brunick, 374 FedAppx. 364 (1976).
States v. Reagan, 713 F.Supp.2d 724, 733 714, 716, 2010 WL 1041369 (C.A. 9
(E.D. Tenn. 2010) (reasonable-to-believe 2010) (driving under suspended license);
standard is based on common sense fac- United States v. Ruckes, 586 F.3d 713,718 Law enforcement officers of other than
tors and the totality of the circumstances (C.A. 9 2009) (driving under suspended federal jurisdiction who are interested
that evidence of the offense of the arrest license); United States v. Bronner, 2009 in this article should consult their legal
is in the passenger compartment of the WL 1748533 (D. Minn.2009) (driving advisors. Some police procedures ruled
vehicle, in other words “particularized under revoked license); and United permissible under federal constitutional
and articulable reasons”); State v. Mbacke, States v. Holmes, 2009 WL 1748533 law are of questionable legality under
---S.E.2d---, 2011 WL 13814 (N.C. App. (D. Minn.2009) (unreported) (driving state law or are not permitted at all.
2011) (“we interpret the Supreme Court’s under revoked license).
Official Business
Penalty for Private Use $300
Patch Call
The Missouri State Highway Patrol’s patch The patch of the Lacy Lakeview, Texas, Police
displays a replica of the state’s official seal. The Department has a blue background, representing
center shield features a bald eagle, a grizzly bear, awareness, persistence, and justice; the red letters
and a crescent moon. Two more grizzly bears rep- reflect bravery and resilience; and the white circle
resenting courage and strength stand on a scroll indicates purity and innocence. An olive branch
inscribed with the motto, “Service and Protection.” surrounds the city’s emblem. The red and white
The helmet illustrates state sovereignty, and the star symbolizes the department’s commitment to
circular band and buckle symbolize the connection its community.
between the state and federal governments.