25.453 U.S. at 460.
28. See Ann Redd, Note, State v.
Dean: Redefining Arizona Law
For Police—Initiated Contact and
Automobile Search Incident To
Arrest, 46 ARIZ. L. REV. 857,
859 (2004), written before the
U.S. Supreme Court opinion in
Gant. State v. Dean, 76 P.3d 429
(Ariz. 2003), held that a “recent
occupant” of an automobile
required by Belton such as to
allow a warrantless search incident
to arrest of an automobile’s
passenger compartment, is where
the suspect is arrested in close
proximity to the automobile
immediately after he exits it. Thus
a warrantless search of a suspect’s
vehicle parked in his driveway is
not justified by the automobile
exception to obtaining a search
29.541 U.S. at 615.
30. Id. at 618.
31. Id. at 623-24.
32.556 U.S. at 335-336.
34. Anderson & Cole, supra note 4,
35.556 U.S. at 351.
36. Id. at 346.
38. Anderson & Cole, supra note 4,
39. Arizona v. Gant: Does It Matter?
2009 Sup. Ct. Rev. 275.
40. 55 A.L.R. 6th 1, 1 (2010).
41. Gant, 556 U.S. 338, quoting
from Katz v. United States, 389
U.S. 347, 357 (1967).
42. Belton, 453 U.S. 460.
43. Armacost, supra note 39, at 276.
44.541 U.S. at 632. This is found in
of life’ (citation omitted). …
Our answer to the question
of what police must do before
searching a cell phone seized
incident to an arrest is accord-
ingly simple—get a warrant.”
Id. at 2494-95. Division Two
recently followed Riley in a
warrantless cell phone case,
State v. Ontiveros-Loya, No. 2
CA-CR 2014-0159 (June 30,
9. Id. at 134 S. Ct. 2482.
10. Id.; Weeks v. United States, 232
U.S. 383, 392 (1914).
11. Id. at 134 S. Ct. 2483.
12.395 U.S. 752 (1969).
13. Arizona v. Gant, 556 U.S. 332
14.414 U.S. 218 (1973).
15. Riley,134 S. Ct. at 2483. But
Justice Alito in his concurring
opinion doubts such a basis for
the incident to a lawful arrest
exception and rather is of the
view the exception is based
simply on the need to obtain
probative evidence. Id. at
16. Robinson did not draw a line
between defendant’s person
and the cigarette pack, noting
simply that the officer was
entitled to search and inspect
both. This was later clarified to
mean the exception was limited to “personal property …
immediately associated with
the person of the arrestee”
(citation omitted). Id. at 2484.
17. Id. at 2483.
18.395 U.S. at 752.
19.453 U.S. 454 (1981).
20.541 U.S. 615 (2004).
21.395 U.S. at 753.
22.556 U.S. at 351.
23.395 U.S. at 763.
1. 162 P.3d 640 (Ariz. 2007).
Rodney Gant was arrested
Aug. 25, 1999, and eventually
convicted after a jury trial of
unlawful possession of cocaine
for sale and unlawful possession
of drug paraphernalia and
given concurrent mitigated
prison terms, the longest of
which was three years. The case
since then has been protracted
and complex. For our purposes, the U.S. Supreme Court
[540 U.S. 963 (2003)] granted
the state’s petition for certiorari
and vacated and remanded
Division Two’s original decision that the warrantless search
of defendant’s vehicle was not
lawful as incident to arrest.
State v. Gant, 43 P.3d 188
(Ariz. Ct. App. 2002), rev.
denied. Division Two then
remanded the case to the
Superior Court to hold an
evidentiary hearing and make
factual findings on whether the
officers’ warrantless search of
Gant’s vehicle, incident to
arrest, violated the Fourth
Amendment, State v. Gant,
2 CA-CR 200-0430
(Memorandum Decision filed
April 28, 2004). The trial court
found no violations, and
Division Two on the second
appeal again reversed, finding
the warrantless search of the
vehicle illegal under the Fourth
Amendment, 143 P.3d 379
(Ariz. Ct. App. 2006), which
resulted in the Arizona
Supreme Court opinion in
State v. Gant, 162 P.3d 640
(Ariz. 2007), affirming that the
warrantless search was not jus-
tified by the incident to arrest
exception. The opinion was
authored by Vice Chief Justice
Berch, joined by Justices Ryan
and Hurwitz, with the dissent
written by Justice Bales, joined
by Chief Justice McGregor.
This culminated in the affirmance of the Arizona Supreme
Court’s holding the search was
unreasonable by the United
States Supreme Court, Arizona
v. Gant, 556 U.S. 332 (2009),
and the main focus of this
2. 556 U.S. 332 (2009). Justice
Stevens wrote the opinion
joined by Justices Scalia (who
wrote a concurring opinion)
Souter, Thomas, and Ginsberg.
Justice Alito filed a dissenting
opinion joined by Chief Justice
Roberts, and Justice Kennedy,
in which Justice Breyer joined
3. 556 U.S. at 346.
4. Dale Anderson & Hon. Dave
Cole, Search & Seizure After
Arizona v. Gant, ARIZ. ATT’Y
(Oct. 2009), at 14.
5. Id. at 14-15, where the authors
advise it is often interpreted
this way by officers in the field.
6. Consolidated with United
States v. Wurie, 573 U.S. ___,
134 S. Ct. 2473 (2014).
7. Justice Alito did not sign the
Court’s opinion but wrote a
8. In Wurie’s case a “flip phone”
and in Riley’s a “smart phone.”
134 S. Ct. 2480-81. The
Court determined, “Modern
cell phones are not just another
With all they contain and all
they may reveal, they hold for
many Americans ‘the privacies
Justices Scalia, Breyer, Sotomayor and
Kagan. Dissenting opinions were filed by
Justices Kennedy, Thomas and Alito.
Justice Alito, who dissented in Gant,
in his dissenting opinion advises that the
decision of the majority “does not affect
procedures routinely carried out during
traffic stops, including ‘checking the driver’s license, determining whether there
are outstanding warrants against the
driver, and inspecting the automobile’s
registration and proof of insurance.’” 51
Moreover, “[I]t remains true that police
‘may conduct certain unrelated checks
during an otherwise lawful traffic
stop.’” Finally police “may ask ques-
tions aimed at uncovering other crimi-
nal conduct and may order occupants
out of their car during a valid stop.”
The majority in Rodriguez specifical-
ly stated that “a dog sniff is not fairly
characterized as part of the officer’s traf-
fic mission.” 52
Also of importance for our purposes
there held that
once an officer,
who has stop-
ped a vehicle for a traffic violation, has
completed or reasonably should have com-
pleted the task required for which the vehi-
cle was stopped, it is unreasonable, with-
out additional reasonable suspicion, to
prolong the stop for a dog sniff or other-
wise to find evidence of other crimes.
Justice Ginsburg wrote the 6–3 majority
opinion, joined by Chief Justice Roberts,