©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On March 21, 2012, the Sixth Circuit Court of Appeals decided the United States v. McCraney [i], which serves as an excellent review of searches incident to arrest of automobiles in light of Arizona v. Gant. The facts of McCraney, taken directly from the case, are as follows:
At about 12:50 a.m., on July 4, 2010, Massillon Police Officer Curtiss Ricker was on routine patrol traveling eastbound on Lincoln Way in Massillon, Ohio. Defendant McCraney was traveling in the opposite direction as the passenger in a Buick Riviera that was registered to him and being driven by Rudolph Ammons. The Buick approached and passed Ricker without dimming its high-beam headlights, which is a traffic violation. Ricker made an immediate U-turn, followed the Buick for a few blocks, and observed an oncoming car flash its lights at the Buick. Ricker also testified that, following one car length behind the Buick, he observed both the driver and passenger lean over toward the floor of the car. Ricker explained that, in his experience, this kind of movement led to the discovery of contraband or firearms “95 to 100 percent” of the time. McCraney, however, testified that neither he nor Ammons had reached down as Ricker described.
Although Ricker did not activate his lights or siren, Ammons came to a stop and gestured to Ricker as if to flag him down. Not wanting to stop in the roadway, Ricker drove a short distance farther and pulled into a large parking lot belonging to the Massillon Moose Lodge. Ammons followed and once he stopped, Ricker swung his patrol car around to face the front of the Buick and directed his spotlight into the passenger compartment.
Ricker approached and instructed the occupants to show their hands. They complied, and Ricker asked Ammons for identification and insurance information. Ammons explained that they were lost, provided an Ohio ID (not a driver’s license), and asked for directions to Interstate 77. Taking the ID, Ricker returned to his patrol car, called in to check the driver’s identification, and requested backup. While Ricker was doing this, the defendant attempted to get out of the Buick twice, seemed to be trying to get Ricker’s attention, and complied when Ricker instructed him to get back into the Buick. McCraney testified that he was trying to give Ricker his vehicle registration and insurance information.
Once Massillon Police Officer Michael Maier arrived on the scene, Ricker radioed to him and asked that he run a check on the temporary vehicle registration tag. According to Ricker, Maier stopped behind and to the side of the Buick and then advised Ricker that he saw the occupants move as if bending down to reach under the seat. At the suppression hearing, McCraney again denied that either he or Ammons had made such movements. Maier’s check revealed that the Buick was registered to McCraney, who also had a suspended driver’s license.
Ricker approached the Buick, explained that Ammons did not have a valid license, and declined to lead them to I-77 because it was outside of his jurisdiction. McCraney then moved over to the driver’s seat and started the Buick, but Maier interjected that McCraney had a suspended license as well. Ricker admitted during the suppression hearing that he would have let McCraney drive away if his driver’s license had been valid. Ricker testified that since it was not, he decided that he would arrest them both-Ammons for driving with a suspended license and McCraney for unlawful entrustment. However, without placing them under arrest, Ricker permitted McCraney to call his aunt, May Weems, and arrange for her to come get them and the Buick. Weems testified that she spoke to an officer who told her to come pick them up, but no one was there when she arrived 25 minutes later.
Only a minute after McCraney ended the conversation with his aunt, and with five officers and four patrol cars now on the scene, Ricker asked McCraney and Ammons to get out of the Buick. When they did so, they were patted down for weapons and instructed to stand near the rear of the Buick. Not yet in handcuffs or formally under arrest, McCraney and Ammons stood two or three feet from the rear bumper with three officers standing around them while the other two officers searched the passenger compartment. After the firearm was found under the driver’s seat, McCraney and Ammons were handcuffed, placed under arrest, and transported from the scene. The Buick was impounded and towed away. McCraney, a convicted felon, later admitted to his probation officer that the revolver belonged to him. [ii]
McCraney was charged under federal law for being a felon in possession of a firearm. He filed a motion to suppress and argued that the search of his automobile violated the Fourth Amendment. The district court agreed and suppressed the evidence. The government appealed and argued that the search was justified as either a search incident to arrest in compliance with Arizona v. Gant [iii] or as a “frisk” of the automobile under Michigan v. Long. [iv]
Issue One: Did the search of McCraney’s vehicle comply with requirements of Arizona v. Gant regarding searches incident to arrest?
In analyzing the lawfulness of the search incident to arrest of McCraney’s vehicle, the Sixth Circuit first reviewed various rules regarding this type of warrantless search. Regarding searches incident to arrest, the court noted the four following rules:
This exception authorizes the warrantless search of “the arrestee’s person and the area ‘within his immediate control.'” Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). [v]
A formal custodial arrest need not precede the search as long as the formal arrest follows “‘quickly on the heels of the challenged search'” and “the fruits of that search are not necessary to sustain probable cause to arrest.” United States v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004) (quoting Rawlings v. Kentucky, 448 U.S. 98, 110-11 n.6, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980)); see also United States v. Dotson, 246 F. App’x 897, 903 (6th Cir. 2007). [vi]
The exception was later extended to allow searches of the passenger compartment of an automobile incident to the lawful custodial arrest of its occupants or recent occupants. New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); Thornton v. United States, 541 U.S. 615, 622, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004). [vii]
Under Arizona v. Gant, police are authorized to search a vehicle incident to a recent occupant’s arrest only if: (1) “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” Gant, 556 U.S. at 343; or (2) “it is reasonable to believe the vehicle contains evidence of the offense of arrest, ” Id. at 351. [viii]
In McCraney’s case, the government argued that the first exception from Gant applied in that McCraney and the other vehicle occupant were unsecured and within reaching distance of the vehicle at the time of the search. In support of their argument they noted that McCraney and the other occupant were not handcuffed and were not secured in the back of a patrol car, as was the case in Gant.
In applying the facts of the case to the rules above, the Sixth Circuit noted that, while McCraney and the other occupant were not handcuffed and were not secured in a police car, they were about two or three feet behind the rear bumper of the car. They were being guarded by three officers at that position and two other officers were searching inside the car. The Sixth then held that the district court did not err when it ruled that McCraney and the occupant were not within reaching distance of the passenger compartment based on the specific facts of this case.
As such the search cannot be justified as a lawful search incident to arrest, as the standards set forth in Arizona v. Gant were not met.
Issue Two: Did the search of McCraney’s vehicle comply with the requirements as a lawful “frisk” of the automobile under Michigan v. Long?
In analyzing this issue, the Sixth Circuit first noted several rules regarding “frisks” of automobiles. The rules are as follows:
Michigan v. Long, authorizes a protective search of the passenger compartment where the officer “possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). [ix]
A search based on such reasonable suspicion is permissible even if the suspect is detained outside the vehicle because “if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside.” Id. at 1052. [x]
Suspicious movements made in response to police presence may properly contribute to an officer’s suspicions. Caruthers, 458 F.3d 459, 466 (6th Cir. 2006); Graham, 483 F.3d at 439. [xi]
The Sixth Circuit also noted that, during the motion to suppress, the district court found, based on the officers testimony, the McCraney and his occupant, on two separate instances, moved suspiciously inside the vehicle as if reaching under the seat.
The court then applied the facts of McCraney’s case to the rules above. First, the court noted that McCraney’s vehicle drew the attention of the police because it failed to dim its headlights. While this is a valid reason to conduct a stop, the court stated it is not indicative that the occupants of the vehicle are armed and dangerous. Further, the Sixth Circuit noted that the offense of driving with a suspended license and other offense were also not sufficient to arouse a belief that the occupants were armed and dangerous. Lastly, the court noted that, while McCraney did try to get out of the vehicle twice, Officer Ricker described this action as an attempt to get his attention rather than an attempt to flee or act aggressively.
As such, the Sixth Circuit held that the district court did not err in holding that the officers did not have sufficient reasonable suspicion to justify the “frisk” (limited search for weapons) of the vehicle. As such, the search was not reasonable and the evidence was properly suppressed.
It is important to note here that the court did acknowledge that furtive or suspicious movement of vehicle occupants are proper for officers to consider in determining if a “frisk” of a vehicle for weapons is reasonable, in light of the totality of the circumstances. However, this case was distinguished from the United States v. Caruthers in that in Caruthers, the officers testified that it was late at night, in a high crime area and the suspect at issue was reportedly armed. The district court found that distinguishable from McCraney’s case, under the totality of the circumstances discussed above. As such, the facts of McCraney did not rise to proper legal standard for the Sixth Circuit to overturn the district court’s decision.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] 674 F.3d 614 (6th Cir. 2012)
[ii] Id. at 617-618
[iii] 556 U.S. 332 (2009)
[iv] 463 U.S. 1032 (1983)
[v] McCraney, 674 F.3d at 618-619
[vi] Id. at 619
[ix] Id. at 620