Gant's effect in S.C. - Horry County trafficking conviction reversed
In State v. Brown, decided June 14, the S.C. Court of Appeals overturned an Horry County conviction for trafficking cocaine on Fourth Amendment grounds, based on the rule in Arizona v. Gant, that the search incident to arrest exception to the warrant requirement:
does not allow law enforcement officers to conduct a warrantless search of an arrestee's automobile after the arrestee has been handcuffed or otherwise prevented from regaining access to the car, unless it is reasonable to believe (1) the arrestee might access the vehicle at the time of the search, or (2) that the vehicle contains evidence of the offense of the arrest. Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1723-24 (2009) (limiting New York v. Belton, 453 U.S. 454 (1981) and Thornton v. U.S., 541 U.S. 615 (2004)).
In this case, a Myrtle Beach police officer stopped a car when he saw the passenger holding what he believed to be a beer can - it was a beer can, and the officer took the passenger out of the car and cuffed him. The officer then went back and searched a duffle bag that was in the passenger floorboard, finding cocaine inside it.
In isolation, this is a straightforward application of Gant - the officer was not searching for evidence of the open container violation inside the duffle bag, and once the passenger was secured there was no danger that he would access any potential weapons inside the bag. What makes this case exceptional is the Court's analysis of the inevitable discovery rule and the inventory exception.
It turned out that the driver had a suspended driver's license, and he was arrested as well. It may follow that, if the car was on the side of the road (as opposed to in a driveway as in Gant), the car would be towed, once towed an inventory search would be conducted, and therefore the inevitable discovery rule would apply so that the drugs in Brown's case would not be excluded. But, the Court notes that the burden is on the State to prove by a preponderance of the evidence that an inventory search would have been conducted and the evidence would have inevitably been discovered - this can't just be presumed:
The State provided very scant testimony, at best, that the duffel bag or car would have been taken into police custody after Brown and the driver were arrested.[3] Although commonsense dictates the police would have done exactly this, we are confined by the law that the prosecution bears the burden to establish by a preponderance of the evidence that the evidence would inevitably have been discovered. Nix, 467 U.S. at 443-44. Additionally, police must follow standard procedures to conduct an inventory search and no such testimony was presented. Thus, we conclude the inevitable discovery doctrine does not apply and the trial court erred by failing to exclude the evidence. See State v. Grant, 174 S.C. 195, 177 S.E.2d 148, 149 (1934) ("The right of people to go about their business without being subjected to undue search and seizure . . . by the authorities of the law . . . . are essential to an orderly government."). Consequently, we reverse Brown's conviction and vacate his sentence.
South Carolina's first clear interpretation of Arizona v. Gant and all is well - we'll have to wait and see if the S.C. Supreme Court takes the case and what they do with it.
