People v. McCarty

Justice COATS delivered the Opinion of the Court.

Justice EID, dissenting.

The majority applies the exclusionary rule in this case even though the officers who conducted the search of defendant's vehiclePage 1047incident to his arrest did so in good-faith reliance upon precedent of this court (and of virtually every federal appeals court) expressly permitting such a search — precedent recently overruled by the U.S. Supreme Court inArizona v.Gant,___ U.S. ___,129 S.Ct. 1710,173 L.Ed.2d 485(2009). In other words, by applying the exclusionary rule in this case, the majority punishes the officers forourmistake, not theirs. In such a situation, where exclusion of the evidence seized would in no way "deter wrongful police conduct," application of the exclusionary rule is inappropriate.Herring v. United States,___ U.S. ___, ___,129 S.Ct. 695,698,172 L.Ed.2d 496(2009). Accordingly, I would hold that this case is governed by the good-faith exception to the exclusionary rule.See generallyUnited States v. McCane,573 F.3d 1037,1041-45(10th Cir. 2009) (holding that the good-faith exception applies where officers relied on circuit's erroneous pre-Gcroi jurisprudence),cert. denied,___ U.S. ___,130 S.Ct. 1686,176 L.Ed.2d 179(2010);United States v. Davis,598 F.3d 1259,1264(11th Cir. 2010) (same);People v. Key, No. 07CA1257, ___ P.3d ___, ___,2010 WL 961646, at *2 (Colo.App. Mar.18, 2010).But see United States v. Gonzalez,578 F.3d 1130,1131-32(9th Cir. 2009) (holding good-faith exception inapplicable when officers relied on circuit's erroneous pre-Gantjurisprudence),rehearing and rehearingen banc denied,598 F.3d 1095(9th Cir. 2010);Gonzalez,598 F.3d at 1096-1100(B. Fletcher, J., concurring in the denial of rehearing en banc);id.at 1100-09 (Bea, J., dissenting from the denial of rehearing en banc).

After erroneously rejecting application of the good-faith exception, the majority makes an additional error in finding that it was not "reasonable to believe" that evidence of defendant's offense of arrest — that is, possession of drug paraphernalia — might be found in the defendant's vehicle, and that therefore the evidence discovered during a search of the vehicle must be suppressed.Gant, however, holds that when a defendant is arrested for a "drug offense[]," "the offense of arrest will supply a basis" for the search because it is reasonable to believe that further evidence of the drug offense might be found in the vehicle. ___ U.S. at ___,129 S.Ct. at 1719. As applied here, the fact that the defendant was arrested for possession of drug paraphernalia gives rise to a common sense inference that further drug paraphernalia or other evidence of the offense of arrest might be found in the vehicle. Thus, unlike the majority, I would hold that the search of defendant's vehicle incident to his arrest for possession of drug paraphernalia was proper. For these reasons, I respectfully dissent from the majority's opinion. On the same day that the Supreme Court heard argument inGant,___ U.S. ___,129 S.Ct. 1710,173 L.Ed.2d 485, it heard argument inHerring,___ U.S. ___,129 S.Ct. 695,172 L.Ed.2d 496. InHerring, the Court revisited the scope of the good-faith exception that it recognized inUnited States v. Leon,468 U.S. 897,104 S.Ct. 3405,82 L.Ed.2d 677(1984). The defendant inHerringvisited a police impound lot to retrieve something from his impounded vehicle. Upon seeing him, an officer contacted law enforcement in a neighboring county to see if there were any outstanding warrants for his arrest. The neighboring county warrant clerk reported that there was an active arrest warrant. In the meantime, the defendant had gotten into his vehicle and started to drive away. Officers followed him, pulled him over, and arrested him. A search incident to arrest revealed drugs in his pocket and a weapon in the vehicle. Soon thereafter, it was discovered that the warrant clerk had been mistaken, and there was no outstanding warrant for the defendant's arrest. The question before the Court inHerringwas whether the exclusionary rule should apply to exclude the drugs found in the defendant's pocket and the weapon in his car. The Court answered no.

The Court's analysis did not proceed, however, in terms of whether the specific facts fell within one of the existing categories to which it had applied theLeongood-faith exception to the exclusionary rule. Instead, the Court usedLeonand other cases in which the exception had been applied to derive a framework for determining when the exclusionary rule should apply. The CourtPage 1048made clear that the exclusionary rule "is not an individual right" and its application "is not an automatic consequence of aFourth Amendmentviolation."Herring, ___ U.S. at ___,129 S.Ct. at 698,700;see also id.at ___,129 S.Ct. at 700(noting that the Court had "repeatedly rejected the argument that exclusion is a necessary consequence of aFourth Amendmentviolation") (citations omitted). Instead, suppression of evidence obtained in violation of theFourth Amendment"has always been our last resort, not our first impulse."Id.at ___,129 S.Ct. at 700(citation and quotation marks omitted). As the Court noted, application of the exclusionary rule is appropriate only where the "important principles" underlying the Court's precedents are met.Id.

In setting out the framework for determining the applicability of the exclusionary rule, the Court first made clear that the rule "applies only where it result[s] in appreciable deterrence" of wrongful law enforcement conduct.Id.(citation and internal quotation marks omitted). Second, evidence will be excluded only where "the benefits of deterrence . . . outweigh the costs" — in other words, where the deterrence gained by application of the rule outweighs the "toll upon truth-seeking and law enforcement objectives."Id.at ___,129 S.Ct. at 700-01(citations and quotation marks omitted). Thus, "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."Id.at ___,129 S.Ct. at 702. Applying this framework to the facts before it, the Court held that the potential for deterrence was "marginal," given that the warrant clerk's culpability did not rise to the level of "deliberate, reckless, or grossly negligent conduct."Id.at ___,129 S.Ct. at 702,704. The exclusionary rule, therefore, was inappropriate because it did not "pay its way."Id.at ___,129 S.Ct. at 704(citation and quotation marks omitted).

Applying the framework ofHerringto the facts of the case before us can lead to only one conclusion: the exclusionary rule is inapplicable. The officers in this case relied upon well-settled precedent of this court permitting them to conduct a search of the passenger compartment of defendant's vehicle as an "automatic" result of his arrest. As we put it inPeople v. Kirk,103 P.3d 918,922(Colo. 2005):

The authority to search a vehicle's passenger compartment incident to the arrest of an occupantis automatic and does not depend on the facts of aparticular case.Thus, the passenger compartment may be searched after the suspect has been removed from the vehicle, even when the suspect is away from the vehicle and safely within police custody at the time of the search.

(citations omitted) (emphasis added);accord People v.H.J.,931 P.2d 1177,1183(Colo. 1997) (citingNewYork v. Belton,453 U.S. 454,460-62,101 S.Ct. 2860,69 L.Ed.2d 768(1981)) (same);People v. Savedra,907 P.2d 596,598(Colo. 1995) (same). In searching the defendant's vehicle incident to his arrest for possession of drug paraphernalia and driving without proof of insurance, the officers in this case performed the search under the precise circumstances we had deemed permissible.

The officers in this case thus exhibited — to use the terminology ofHerring— no "culpable" conduct whatsoever. On the contrary, they were performing their duties in exactly the fashion that we stated was permitted. Hence, in this case, the exclusionary rule would provide no deterrence value whatsoever because there was no "culpable" conduct to deter.See United States v. Allison,637 F.Supp.2d 657,672(S.D.Iowa 2009) ("If law enforcement has acted pursuant to policies and procedures arising from an accurate understanding of [pre-Gant] doctrine, what wrongful conduct on the part of the police has occurred?");see alsoMcCane,573 F.3d at 1044("[A] police officer who undertakes a search in reasonable reliance upon the settled case law of a United States Court of Appeals, even though the search is later deemed invalid by Supreme Court decision, has not engaged in misconduct."),cert. denied___ U.S. ___,130 S.Ct. 1686,176 L.Ed.2d 179(2010);Davis, 598 F.3d 1265 ("[A] search performed in accordance withPage 1049our erroneous interpretation ofFourth Amendmentlaw is not culpable police conduct.").

Of course, we turned out to be wrong in our interpretation of the scope of the search incident to arrest as applied in the vehicle context. InGant, the U.S. Supreme Court held that a search incident to arrest was not, as we had held, "automatic," but rather could only occur where "it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle." ___ U.S. at ___,129 S.Ct. at 1714. But the important inquiry here iswhomade the mistake. The officers who conducted the search in this case did not make a mistake; we did. "To hold, as the majority does, that the good faith exception does not apply, penalizes the police officers for a decision belonging to" us; exclusion therefore "cannot logically contribute to the deterrence of police misconduct."People v. Gutierrez,222 P.3d 925,948(Colo. 2009) (Rice, J., dissenting);see also Leon,468 U.S. at 921,104 S.Ct. 3405("Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence ofFourth Amendmentviolations."). As the Court inHerringreiterated, "[t]he exclusionary rule was crafted to curb police rather than judicial misconduct." ___ U.S. at ___,129 S.Ct. at 701(citations omitted). Because the officers in this case relied on well-settled (albeit ultimately erroneous)¹precedent of this court that permitted them to conduct the search, the good-faith exception to the exclusionary rule should apply.Davis, 598 F.3d 1266;McCane,573 F.3d at 1045;Key, ___ P.3d at ___,2010 WL 961646, at *2.

The majority comes to the contrary conclusion based on the fact that "this case [does] not fall within any recognized good-faith exception to theFourth Amendmentexclusionary rule." Maj. op. at 1042;see generally Gonzalez,578 F.3d at 1132(taking the same approach);Gonzalez,598 F.3d at 1096-1100(B. Fletcher, J., concurring in the denial of rehearing en banc);id.at 1100-09 (Bea, J., dissenting from the denial of rehearing en banc). The majority lists the categories of cases to which the U.S. Supreme Court has applied the good-faith exception, and, concluding that the Court has yet to apply the exception to the circumstances of this case, finds that the exception cannot apply. Maj. op. at 1044. Yet the majority's categorical approach entirely ignores the framework established by the Court inHerring, which, as noted above, generally limits the exclusionary rule to cases where the deterrence benefits outweigh the cost of exclusion. In other words, to useHerring'sterminology, the majority mistakenly applies the exclusionary rule "automatic[ally]" to the facts of this case without considering whether the principles underlying the rule — that is, deterrence of police misconduct — are served. Indeed, the majority does not even attempt to argue that application of the exclusionary rule in this instance would either punish culpable police conduct in this case or deter misconduct in the future.

Moreover, the majority's categorical approach fails on its own terms. The majority suggests, by the way in which it describes the categories of cases to which the Supreme Court has applied the good-faith exception, that the exception only applies in the context of warrants.See generallymaj. op. at 1044. While the majority's analysis has some superficial appeal, it does not withstand closer analysis. Certainly the good-faith exception was first recognized in the warrant context; inLeon, the Court reasoned that the exclusionary rule would be inappropriate where the officers relied on a magistrate's issuance of a warrant.Leon,468 U.S. at 922,104 S.Ct. 3405. But the Court has expanded the rule well beyond reliance on a warrant. InIllinois v.Krull,480 U.S. 340,107 S.Ct. 1160,94 L.Ed.2d 364(1987), for example, thePage 1050Court held that the good-faith exception to the exclusionary rule would apply where the officers relied upon a state statute that authorized awarrantlessadministrative search. Similarly, the Court held inArizonav. Evans,514 U.S. 1,115 S.Ct. 1185,131 L.Ed.2d 34(1995), that the exception applies when, by virtue of a clerical error by judicial employees, the defendant was arrested despite the fact that the warrant for his arrest had been quashed. As Justice Stevens recognized in his dissent inEvans, Leon"assumed the existence of a warrant," whereas there was "no warrant at all" outstanding for the defendant's arrest inEvans,514 U.S. at 20,115 S.Ct. 1185(Stevens, J., dissenting);see also id.at 20 n. 2,115 S.Ct. 1185(noting, in connection withKrull, his view that the good-faith exception is "wholly inapplicable to warrantless searches and seizures"). Similarly, there was "no warrant at all" inHerring, where, as noted above, the defendant was arrested due to a law enforcement employee's mistaken conclusion that there was a warrant for the defendant's arrest.See___ U.S. at ___,129 S.Ct. at 698. As the Tenth Circuit concluded, the common thread among these cases is that the exclusionary rule does not hold police officers responsible for the mistakes of others, be they judges (Leon), legislators (Krull), judicial employees (Evans), or other law enforcement employees (Herring). McCane,573 F.3d at 1045. In this case, as inLeon, the officers relied on a judicial error. As the Eleventh Circuit concluded, there is "no meaningful distinction between a magistrate judge's error in applying Supreme Court precedent to a probablecause determination and our error in applying that same precedent to the question of a warrantless search's constitutionality."Davis, 598 F.3d 1266.

The majority seems to imply that the Supreme Court — and only the Supreme Court — can determine whether the exclusionary rule should apply.See, e.g., maj. op. at 1044 ("[T]he question whether an exclusionary sanction should be imposed in any particular class of cases is largely a matter of policy, to be resolved by the Supreme Court by weighing the costs and benefits of its application to that class of cases.");id.at 1045 ("[T]he United States Supreme Court has made it abundantly clear that neither the reach of the exclusionary rule nor its retroactivity jurisprudence is simply a matter of constitutional construction; rather both largely involve policy choices peculiarly within the discretion of the Court and subject to continual reassessment."). The flaw in this logic is that by deciding that the exclusionary rule does in fact apply in this instance, the majority is making the very determination it has said should be left to the Supreme Court — but simply making it without considering the Supreme Court'sHerringframework.²

The majority also argues that application of the exclusionary rule is compelled in this case because of retroactivity principles.Id., at 1045. But there is no "tension" between the good-faith exception and retroactivity.Seeid.(relying onGonzalez,578 F.3d 1130). New opinions of the Supreme Court apply to all pending cases.United States v. Johnson,457 U.S. 537,562,102 S.Ct. 2579,73 L.Ed.2d 202(1982). The case at bar was pending when the Court issuedGant, seemaj. op at 1043, and thereforeGantis fully applicable here. As the majority recognizes (and as I discuss below),Gantreformulated the test for determining whether a search incident to arrest in the vehicle context is permissible under theFourth Amendment, and held that the search conducted in theGantdefendant's case was impermissible.Seemaj. op at 1043-44. But that is all thatGantdid. It did not hold that, or even consider whether, the exclusionary rule was the appropriate remedy for theFourth Amendmentviolation that it found. As the Court has repeatedly stated, whether the exclusionary rule as a sanction is appropriate in a particular case is an issue separate and apart from whetherPage 1051there was aFourth Amendmentviolation in the first place.See Hudson v. Michigan,547 U.S. 586,591-92,126 S.Ct. 2159,165 L.Ed.2d 56(2006);Evans,514 U.S. at 10,115 S.Ct. 1185;Leon,468 U.S. at 906,104 S.Ct. 3405;Illinois v. Gates,462 U.S. 213,223,103 S.Ct. 2317,76 L.Ed.2d 527(1983). As stated inHerring, the exclusionary rule is not an individual right and its application does not automatically follow from a violation of theFourth Amendment. ___ U.S. at ___,129 S.Ct. at 700. The words "exclusionary rule" do not appear in theGantopinion. It is. virtually impossible that the Court intended to decide the issue of whether the exclusionary rule appliedsub silentiogiven that it was considering theHerringcase at the same time it was consideringGant.And while it is true that, as the majority points out, maj. op. at 1045-46, Justice Alito in dissent mentioned "good-faith,"see Gant, ___ U.S. at ___,129 S.Ct. at 1726(Alito, J., dissenting) (noting that the Court's "decision will cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law"), the Court majority never responded to Justice Alito's comment. In my view, a fair reading ofGantleads to the conclusion that the Court simply decided to leave the remedy question for another day. Importantly, as the majority acknowledges,Leonexpressly found that the good-faith exception is entirely consistent with the retroactivity principles announced inJohnson.Maj. op. at 1045-46 (citingLeon,468 U.S. at 912,104 S.Ct. 3405). Application of the good-faith exception in this case is thus entirely consistent with retroactive application ofGant. See Davis, 598 F.3d 1264-65;McCane,573 F.3d at 1045n. 5;Key, ___ P.3d at ___,2010 WL 961646, at *13.Butsee Gonzalez,578 F.3d at 1132;U.S. v. Gonzalez,598 F.3d 1095at1097(9th Cir. 2010) (B. Fletcher, J., concurring in the denial of rehearing en banc).

In sum, because application of the exclusionary rule in this case would not serve the underlying purposes of the rule, and because application of the good-faith exception is entirely consistent with retroactive application ofGant, I would find it appropriate to apply the exception in this case. Given that I would apply the good-faith exception to the search conducted in this case, I would not find it necessary to consider whether the search was justified under theFourth Amendmentprinciples articulated inGant. See People v.Altman,960 P.2d 1164,1172-73(Colo. 1998). But because the majority addresses theFourth Amendmentissue after finding good-faith inapplicable, and in doing so readsGanterroneously, I address the propriety of the search as well.

InNew York v. Belton,453 U.S. 454,101 S.Ct. 2860,69 L.Ed.2d 768(1981), the Supreme Court considered the contours of the search-incident-to-arrest doctrine as applied in the vehicle context. As noted above, this court — along with many others, including Federal Courts of Appeals³— interpretedBeltonas adopting a bright-line rule permitting a search of the entire passenger compartment of a vehicle incident to an occupant's arrest, even where the occupant had no access to the vehicle at the time of the search.See, e.g., Kirk,103 P.3d at 918;H.J.,931 P.2d at 1177;Savedra,907 P.2d at 596. InGant, the Supreme Court held that this bright-line understanding of the doctrine was wrong. ___ U.S. at ___,129 S.Ct. at 1721. According to the Court, a search of the passenger compartment of the vehicle could be justified only under two rationales. Under the first, a search could be conducted if the occupant was unrestrained and could reach a weapon or destructible evidence in the passenger compartment, consistent withChimel v. California,395 U.S. 752,89 S.Ct. 2034,23 L.Ed.2d 685(1969).Gant, ___ U.S. at ___,129 S.Ct. at 1714,1719. Under the second, a search could be conducted "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."Id.at ___,129 S.Ct. at 1714. In adopting this latter rationale, the Court stated that it was "following the suggestion" in Justice Scalia's separate opinion inThornton v. United States,541 U.S. 615,632,124S.Ct.Page 10522127,158 L.Ed.2d 905(2004) (Scalia, J., concurring in judgment), which proposed that a search of the passenger compartment could be justified on an evidence-gathering basis under some circumstances.Gant,___ U.S. ___,129 S.Ct. at 1714;see also id.at ___,129 S.Ct. at 1719("Although it does not follow fromChimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is `reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle.'" (quotingThornton,541 U.S. at 632,124 S.Ct. 2127(Scalia, J., concurring in judgment))). As the majority correctly points out, onlyGant's"evidence-gathering" rationale is at issue in this case. Maj. op. at 1046.

Under this second rationale, the question is whether it was "reasonable" for the officers "to believe evidence relevant to the crime of arrest" — that is, possession of drug paraphernalia — "might be found in the [defendant's] vehicle."Gant, ___ U.S. at ___,129 S.Ct. at 1719(citation and quotation marks omitted). The majority mistakenly answers this question in the negative based on an erroneous reading of the standard to be applied in the context ofGant'ssecond rationale. Maj. op. at 1046.

Because theGantCourt used the terms "reasonable to believe," the majority concludes that it must have meant to adopt the standard of reasonable suspicion for investigatory stops underTerry v. Ohio,392 U.S. 1,88 S.Ct. 1868,20 L.Ed.2d 889(1968). Maj. op. at 1046 (citingPeople v.Martinez,200 P.3d 1053,1057(Colo. 2009), an investigatory stop case);see also People v.Chamberlain, No. 09SA124,229 P.3d 1054,1057,2010 WL 1840823(Colo. May 10, 2010) (adoptingTerrystandard). Certainly the word "reasonable" appears in bothGantandTerry.However, it is significant that the Court's opinion does not citeTerryin reference to the evidence-gathering rationale at all; in fact, when the Court does citeTerry, it does so in reference to another exception to the warrant requirement permitting "an officer to search a vehicle's passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is `dangerous' and might access the vehicle to `gain immediate control of weapons.'"Gant, ___ U.S. at ___,129 S.Ct. at 1721(citations omitted). It seems highly unlikely that the Court would have citedTerrywith reference to another exception to the warrant requirement and then somehow neglected to cite it in its discussion of the evidence-gathering rationale for a search-incident-to-arrest in the vehicle context. Instead, the Court essentially adopted Justice Scalia's separate opinion inThornton, including his rationale for the search-incident-to-arrest doctrine in the vehicle context.See, e.g., id.(referencing "the searches permitted by Justice Scalia's opinion concurring in the judgment inThornton, which we conclude today are reasonable for purposes of theFourth Amendment");id.at ___,129 S.Ct. at 1714("[F]ollowing the suggestion in Justice Scalia's opinion concurring in the judgment in [Thornton], we . . . conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.");id.at ___,129 S.Ct. at 1719("Although it does not follow fromChimel, . . . circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is `reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" (quotingThornton,541 U.S. at 632,124 S.Ct. 2127(Scalia, J., concurring in judgment))).

Justice Scalia'sThorntonconcurrence does not even citeTerry, let alone adopt its standard. Instead, the opinion concludes that a search of the passenger compartment incident to arrest may be justified, under certain circumstances, as a "more general sort of evidence-gathering search," harkening back toUnited States v.Rabinowitz,339 U.S. 56,70 S.Ct. 430,94 L.Ed. 653(1950).Thornton,541 U.S. at 629,124 S.Ct. 2127(Scalia, J., concurring in judgment). Justice Scalia noted that such a search is justified under certain circumstances because there is "a reduced expectation of privacy" in vehicles.Id.at 631,124 S.Ct. 2127. He concluded that such a search would be limited to "cases where it is reasonable to believe evidence relevant to the crime of arrest might bePage 1053found in the vehicle,"id.at 632,124 S.Ct. 2127— the standard adopted byGant.

In determining whether it would be "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle," Justice Scalia focused on the "nature of the charge."Id.at 630,124 S.Ct. 2127. "A motorist may be arrested for a wide variety of offenses; in many cases, there is no reasonable basis to believe relevant evidence might be found in the car."Id.at 632,124 S.Ct. 2127(citingAtwater v. Logo Vista,532 U.S. 318,323-24,121 S.Ct. 1536,149 L.Ed.2d 549(2001), andKnowles v. Iowa,525 U.S. 113,118,119 S.Ct. 484,142 L.Ed.2d 492(1998)). BothAtwaterandKnowlesinvolved arrests for traffic offenses that would not give rise to evidence located in the vehicle itself.See Atwater,532 U.S. at 324,121 S.Ct. 1536(failing to wear a seatbelt, failure to fasten children in seatbelts, driving without a license, and failing to provide proof of insurance);Knowles,525 U.S. at 114,119 S.Ct. 484(speeding). The Court inGantcitedAtwaterandKnowlesfor the proposition that "[i]n many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence." ___ U.S. at ___,129 S.Ct. at 1719. In contrast, according to Justice Scalia, where a defendant is "lawfully arrested for a drug offense," as inBeltonandThornton, it is "reasonable . . . to believe that further contraband or similar evidence relevant to the crime for which [the defendant] had been arrested might be found in the vehicle. . . ."Thornton,541 U.S. at 632,124 S.Ct. 2127(Scalia, J., concurring in judgment). The Court inGantadopted Justice Scalia's analysis, noting that in cases such asBeltonandThornton, "the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein." ___ U.S. at ___,129 S.Ct. at 1719. On the facts ofGantitself, the Court concluded that "[a]n evidentiary basis for the search was . . . lacking."Id.at ___,129 S.Ct. at 1719. "WhereasBeltonandThorntonwere arrested for drug offenses," the Court continued, "Gant was arrested for driving with a suspended license — an offense for which police could not expect to find evidence in the passenger compartment of Gant's car."Id.at ___,129 S.Ct. at 1719(citingKnowles,525 U.S. at 118,119 S.Ct. 484). In sum, the Court inGantconcluded that for some "offense[s] of arrest," such as "traffic violation[s]," there will be no reason to believe that evidence might be in the vehicle; for others, including "drug offense[s]," there will be.Id.at ___,129 S.Ct. at 1722-23. In this case, the defendant was arrested for possession of drug paraphernalia — in the terms used by theGantcourt, a "drug offense." It therefore was reasonable for the officers to believe that "further contraband" might have been found in the vehicle.Thornton,541 U.S. at 632,124 S.Ct. 2127(Scalia, J., concurring in judgment);see also McCloud v.Commonwealth,286 S.W.3d 780,785(Ky. 2009) (holding a search proper underGantbecause it was reasonable for police to believe that defendant's vehicle contained evidence of the offense of arrest, possession or trafficking in drugs);State v. Cantrell, No. 35826, ___ P.3d ___, ___,2010 WL 919314, at *8 (Idaho Ct.App. Mar.16, 2010) (holding that search of defendant's vehicle was proper underGantbecause it was reasonable for police to believe that evidence of the offense, driving under the influence, might be found in the vehicle);Cain v. State, No. CA CR 09-152,2010 Ark. App. 30,2010 WL 129713(Ark.Ct.App. Jan.13, 2010) (same);United States v. Grote,629 F.Supp.2d 1201,1205(E.D.Wash. 2009) (same).

The majority finds otherwise on the ground that there was "nothing peculiar to these circumstances [in the case] [to] support[] a reasonable suspicion that any additional evidence existed, much less that it would reside in the arrestee's vehicle, rather than on his person or elsewhere." Maj. op. at 1046. In other words, the majority requiresTerry-style individualized suspicion that 1) additional drug paraphernalia existed; and 2) that it would be located in the vehicle itself, rather than on defendant's person or elsewhere. In my view, the majority requires too much. As the Court stated inGant, where the defendant is arrested for a "drug offense[]," "the offense of arrest will supply a basis for" the search of the passenger compartment of the vehicle. ___ U.S. atPage 1054___,129 S.Ct. at 1719. TheGantCourt said nothing about requiringfurtherindividualized suspicion beyond the fact that the defendant was arrested for a "drug offense." Indeed, the Court did not even describe the particular facts ofBeltonandThorntonthat led to the defendants' arrests in those cases, let alone rely on those facts to derive a standard. Instead, the Court appears to have concluded that when a defendant is arrested for a "drug offense," it is simply a common sense conclusion (i.e., it is reasonable to believe) that "further contraband or similar evidence relevant to the crime for which he had been arrested might be found in the vehicle."Thornton,541 U.S. at 632,124 S.Ct. 2127(Scalia, J., concurring in judgment).

But even if theGantCourt adopted aTerry-like reasonable suspicion requirement, as the majority suggests, the facts of this case would meet it. As noted above, the Court usedThorntonas an example of a case that would meet its evidence-gathering standard. InThornton, the officer asked the defendant, who was away from his vehicle, if he had illegal drugs "on him or in his vehicle."541 U.S. at 618,124 S.Ct. 2127. The defendant answered no. The officer then asked him if he could pat him down, and the defendant agreed. After the officer "felt a bulge" in defendant's front pocket, the officer again asked him if he had illegal drugs "on him."Id.At this point, the defendant admitted that illegal drugs were on his person, pulled them out of his pocket, was arrested, and his vehicle searched.Id.The facts of this case mirror those ofThornton;according to the majority, the defendant, who was away from his vehicle, admitted that he possessed drug paraphernalia on his person, produced it for the officer, was arrested, and his vehicle searched. Maj. op. at 1042-43. IfThorntonmeets theGantstandard, this case does as well.

Importantly, under my reading ofGant, there undoubtedly will be offenses for which a common sense "reasonable to believe" conclusion cannot be made based merely on the nature of the offense, and where particularized consideration of the circumstances surrounding the arrest will be necessary.See, e.g., Megginson v. United States,___ U.S. ___,129 S.Ct. 1982,173 L.Ed.2d 1288(2009) (Alito, J., dissenting from denial of certiorari) (noting that the case "present[ed] an important question regarding the meaning and specificity of the reasonable suspicion requirement inGant" where defendant was arrested on a warrant for threatening to kill his wife). But this case does not present such a scenario. In my view, we should simply conclude that, underGant, because defendant was arrested for a drug offense, it was reasonable to believe that evidence of that offense might be found in his vehicle, and that therefore the search of his vehicle was consistent with theFourth Amendment. Because I would find that the good-faith exception to the exclusionary rule applies in this case, and because I believe the search conducted was consistent withGant, I respectfully dissent from the majority's opinion.