Unlike many of my colleagues in the criminal defense blogosphere, I'm not uncorking bottles of bubbly over the recent U.S. Supreme Court decision in Arizona v. Gant, because I don't think it will have much practical effect on the way possession of marijuana and other drug cases are prosecuted. In Gant, the Supreme Court narrowed an exception to the requirement of a search warrant and probable cause to search known as "search incident to arrest."
When the police arrest someone, they are allowed to search the area in the immediate vicinity of the defendant, without probable cause, to insure that the defendant cannot have access to a weapon. Typically, the way that this normally plays out is that a cop arrests someone for, say, an unpaid traffic ticket warrant, and then searches the person's car as a search incident to arrest.
Sometimes, during such a search, the cop finds. other interesting items, such as marijuana or other illegal drugs. In Gant, the defendant was arrested after his car was already parked in his driveway. The cops then conducted a search incident to arrest afterwards, while the defendant was already in handcuffs and in a patrol car. The search turned up some illegal drugs, for which the defendant was charged.
The Supremes said that the search violated the rationale for a search incident to arrest, since, when the defendant was already in cuffs and away from his car, it was impossible for him to retrieve a weapon from the vehicle. The court concluded that the drugs seized should have been suppressed. Although I applaud any defense victory in the Supreme Court, I doubt that this decision will have any far-reaching effect on how cops handle automobile searches, because there is yet another exception to probable cause available to cops -- the dreaded inventory search.
When a cop arrests someone in a car, the car is normally impounded, and the cops then routinely conduct an "inventory" search of the vehicle. The official purpose of an inventory search is to catalogue the items found in the car when it is impounded in order to safeguard the property rights of the owner of the vehicle. In reality, it's a fishing expedition for the cops. Nothing in Gant prevents cops from continuing to conduct inventory searches of cars prior to impound.
Remember, in Gant, the car searched was sitting in the defendant's driveway, so the cops had no need to impound it. Ninety-nine percent of the time, however, a car is stopped on the roadside, and the cops will impound it after an arrest. So, in most cases, rather than calling the vehicle search a "search incident to arrest," the cops will just wait a minute or two and call the search an "inventory" instead. So while Gant is a victory, it's a small one. Don't expect to make much of dent in marijuana and drug prosecutions.