search incident to arrest exception in Virginia

2006However, the Court found that "neither of these underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case." Id. at 117 , 119 S.Ct. 484 .

2006However, the Court found that "neither of these underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case." Id. at 117 , 119 S.Ct. 484 .

2015Relying primarily on the Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332 (2009), the defendant asserted that the warrantless search of his vehicle was conducted without probable cause, argued that the search did not fall within the search incident to arrest exception to the warrant rule, and requested therefore that the trial court suppress the evidence discovered during the search.

2010On appeal, McGhee argues that under Arizona v. Gant, 556 U.S. ___ , 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009), published after his conviction, the search was not within the search incident to arrest exception to the warrant requirement.

2010We recognize that under Gant vehicular searches incident to arrest are limited to situations where the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, or where it is "`reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" Id. at ___, 129 S.Ct. at 1719 (quoting Thornton v. United States, 541 U.S. 615, 632 , 124 S.Ct. 2127 , 158 L.Ed.2d 905 (2004)).

2010We recognize that under Gant vehicular searches incident to arrest are limited to situations where the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, or where it is "`reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" Id. at ___, 129 S.Ct. at 1719 (quoting Thornton v. United States, 541 U.S. 615, 632 , 124 S.Ct. 2127 , 158 L.Ed.2d 905 (2004)).

2025Cf. Duncan v. Commonwealth, 55 Va. App. 175, 179 (2009) (assuming without deciding that a warrantless search was not justified as one incident to arrest and upholding it under the automobile exception).

2025He suggests that neither the automobile exception nor the search-incident-to-arrest exception to the warrant requirement permitted the search.3 “In reviewing a trial court’s denial of a motion to suppress, ‘we determine whether the accused has met his burden to show that the trial court’s ruling, when the evidence is viewed in the light most favorable to the Commonwealth, was reversible error.’” Knight v. Commonwealth, 71 Va. App. 771 , 782 (2020) (quoting Cantrell v. Commonwealth, 65 Va. App. 53, 56 (2015)).

2024See also Kirby, 209 Va. at 809-10 (determining that a search that occurred “[a]fter the arrest of defendant had been made, and the parties dispatched to jail in a patrol wagon,” “was not remote in time or place from the arrest”). -7- We assume, arguendo, that Corcoran was arrested upon application of physical force.5 Nevertheless, applying the search-incident-to-arrest doctrine requires certain evidentiary predicates beyond simply an arrest that are absent from this record.

2023To that end, the Commonwealth draws from the line of cases that explain an officer “has probable cause to arrest . . . without a warrant” if that officer “has reason to believe that a person is committing a felony in his presence by possessing contraband or a controlled In arguing on brief that Deputy Tharp had “probable cause to arrest Parady despite her 9 not having been arrested on scene,” the Commonwealth now concedes Parady was not arrested. - 10 - substance.” Purdie v. Commonwealth, 36 Va. App. 178, 186 (2001) (quoting Buck v. Commonwealth, 20 Va. App. 298, 304 (1995)).

2023To that end, the Commonwealth draws from the line of cases that explain an officer “has probable cause to arrest . . . without a warrant” if that officer “has reason to believe that a person is committing a felony in his presence by possessing contraband or a controlled In arguing on brief that Deputy Tharp had “probable cause to arrest Parady despite her 9 not having been arrested on scene,” the Commonwealth now concedes Parady was not arrested. - 10 - substance.” Purdie v. Commonwealth, 36 Va. App. 178, 186 (2001) (quoting Buck v. Commonwealth, 20 Va. App. 298, 304 (1995)).

2023See, e.g., State v. Ingram, 331 S.W.3d 746, 758 (Tenn. 2011) (“It is not sufficient that an arrest could have been made; the arrest must have been made roughly contemporaneously to the search in order for it to justify the search as incident to an arrest.”); State v. Pallone, 613 N.W.2d 568, 577 (Wis. 2000) (“For the search incident to arrest exception to apply, there must be an arrest.”); Belote v. State, 981 A.2d 1247, 1256-62 (Md. 2009) (reversing denial of motion to suppress evidence recovered in search of suspect because suspect had been detained but not formally arrested); People v. Reid

2023There we explained that “the exigences of the situation,” when “coupled with probable cause,” were sufficient to “make the needs of law enforcement so compelling that [a] warrantless search [wa]s objectively reasonable under the Fourth Amendment.” Id. (emphasis added) (quoting Carpenter v. United States, 138 S. Ct. 2206, 2222 (2018)).

2023Chimel v. California, 395 U.S. 752, 763 (1969); Knowles v. Iowa, 525 U.S. 113, 116-18 (1998) (recognizing “the two historical rationales” of “officer safety” and the “need to discover and preserve evidence”).

2023See, e.g., State v. Ingram, 331 S.W.3d 746, 758 (Tenn. 2011) (“It is not sufficient that an arrest could have been made; the arrest must have been made roughly contemporaneously to the search in order for it to justify the search as incident to an arrest.”); State v. Pallone, 613 N.W.2d 568, 577 (Wis. 2000) (“For the search incident to arrest exception to apply, there must be an arrest.”); Belote v. State, 981 A.2d 1247, 1256-62 (Md. 2009) (reversing denial of motion to suppress evidence recovered in search of suspect because suspect had been detained but not formally arrested); People v. Reid

2023See, e.g., State v. Ingram, 331 S.W.3d 746, 758 (Tenn. 2011) (“It is not sufficient that an arrest could have been made; the arrest must have been made roughly contemporaneously to the search in order for it to justify the search as incident to an arrest.”); State v. Pallone, 613 N.W.2d 568, 577 (Wis. 2000) (“For the search incident to arrest exception to apply, there must be an arrest.”); Belote v. State, 981 A.2d 1247, 1256-62 (Md. 2009) (reversing denial of motion to suppress evidence recovered in search of suspect because suspect had been detained but not formally arrested); People v. Reid

2023See Verez v. Commonwealth, 230 Va. 405, 410-11 (1985).8 These same rationales justify the search incident to arrest exception to the warrant requirement.

2023In Robinson, the Court recognized that “the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop.” 414 U.S. at 234-35 . - 12 - Deputy Tharp had probable cause to arrest Parady, he did not do so, so no exception to the warrant requirement applies.12 Before concluding, we briefly address the trial court’s reliance on Bunch v. Commonwealth, 51 Va. App. 491, 494-96 (2008), and the statement t

2023See, e.g., State v. Ingram, 331 S.W.3d 746, 758 (Tenn. 2011) (“It is not sufficient that an arrest could have been made; the arrest must have been made roughly contemporaneously to the search in order for it to justify the search as incident to an arrest.”); State v. Pallone, 613 N.W.2d 568, 577 (Wis. 2000) (“For the search incident to arrest exception to apply, there must be an arrest.”); Belote v. State, 981 A.2d 1247, 1256-62 (Md. 2009) (reversing denial of motion to suppress evidence recovered in search of suspect because suspect had been detained but not formally arrested); People v. Reid

2012See Carter v. Commonwealth, 9 Va. App. 310, 312 (1990) (“So long as probable cause to arrest exists at the time of the search... it is unimportant that the search preceded the formal arrest if the arrest followed quickly on the heels of the challenged search.”) (internal quotations and citations omitted).

2007Ed. 2d 318 (2005); State v. Scott, 200 S.W.3d 41 , 43-44 & nn.1-2 (Mo. Ct. App. 2006) (en banc) (discussing Thornton and noting Justice Scalia’s concurrence was merely a “propos[al]” that searches incident to arrest “be limited to situations in which it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle”); see also State v. Eckel, 888 A.2d 1266, 1271-72, 1275-77 (N.J. 2006) (acknowledging that Scalia’s viewpoint in Thornton did not prevail but construing New Jersey Constitution to provide that “[o]nce the occupant of a vehicle has been arrested

2007Ed. 2d 318 (2005); State v. Scott, 200 S.W.3d 41 , 43-44 & nn.1-2 (Mo. Ct. App. 2006) (en banc) (discussing Thornton and noting Justice Scalia’s concurrence was merely a “propos[al]” that searches incident to arrest “be limited to situations in which it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle”); see also State v. Eckel, 888 A.2d 1266, 1271-72, 1275-77 (N.J. 2006) (acknowledging that Scalia’s viewpoint in Thornton did not prevail but construing New Jersey Constitution to provide that “[o]nce the occupant of a vehicle has been arrested

2007Ed. 2d 318 (2005); State v. Scott, 200 S.W.3d 41 , 43-44 & nn.1-2 (Mo. Ct. App. 2006) (en banc) (discussing Thornton and noting Justice Scalia’s concurrence was merely a “propos[al]” that searches incident to arrest “be limited to situations in which it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle”); see also State v. Eckel, 888 A.2d 1266, 1271-72, 1275-77 (N.J. 2006) (acknowledging that Scalia’s viewpoint in Thornton did not prevail but construing New Jersey Constitution to provide that “[o]nce the occupant of a vehicle has been arrested

2007Ed. 2d 318 (2005); State v. Scott, 200 S.W.3d 41 , 43-44 & nn.1-2 (Mo. Ct. App. 2006) (en banc) (discussing Thornton and noting Justice Scalia’s concurrence was merely a “propos[al]” that searches incident to arrest “be limited to situations in which it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle”); see also State v. Eckel, 888 A.2d 1266, 1271-72, 1275-77 (N.J. 2006) (acknowledging that Scalia’s viewpoint in Thornton did not prevail but construing New Jersey Constitution to provide that “[o]nce the occupant of a vehicle has been arrested

2007Ed. 2d 318 (2005); State v. Scott, 200 S.W.3d 41 , 43-44 & nn.1-2 (Mo. Ct. App. 2006) (en banc) (discussing Thornton and noting Justice Scalia’s concurrence was merely a “propos[al]” that searches incident to arrest “be limited to situations in which it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle”); see also State v. Eckel, 888 A.2d 1266, 1271-72, 1275-77 (N.J. 2006) (acknowledging that Scalia’s viewpoint in Thornton did not prevail but construing New Jersey Constitution to provide that “[o]nce the occupant of a vehicle has been arrested

2007Ed. 2d 318 (2005); State v. Scott, 200 S.W.3d 41 , 43-44 & nn.1-2 (Mo. Ct. App. 2006) (en banc) (discussing Thornton and noting Justice Scalia’s concurrence was merely a “propos[al]” that searches incident to arrest “be limited to situations in which it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle”); see also State v. Eckel, 888 A.2d 1266, 1271-72, 1275-77 (N.J. 2006) (acknowledging that Scalia’s viewpoint in Thornton did not prevail but construing New Jersey Constitution to provide that “[o]nce the occupant of a vehicle has been arrested

2007Ed. 2d 318 (2005); State v. Scott, 200 S.W.3d 41 , 43-44 & nn.1-2 (Mo. Ct. App. 2006) (en banc) (discussing Thornton and noting Justice Scalia’s concurrence was merely a “propos[al]” that searches incident to arrest “be limited to situations in which it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle”); see also State v. Eckel, 888 A.2d 1266, 1271-72, 1275-77 (N.J. 2006) (acknowledging that Scalia’s viewpoint in Thornton did not prevail but construing New Jersey Constitution to provide that “[o]nce the occupant of a vehicle has been arrested