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High court ruling changes protocol for police searches
Source: Fond du Lac Reporter: click here
May 7, 2009
By Russell Plummer The Reporter

Policies covering 28 years of routine car searches in Fond du Lac County have been tweaked after a recent U.S. Supreme Court ruling.

On April 21, the highest court in the land — in the case of Arizona v. Gant — rejected the automatic application of the Search Incident to Arrest Doctrine, noting that people in custody no longer pose a threat or can conceal evidence.

The decision limits performing a search of a car to two factors: the arrested individual is not restrained and within reaching distance of the vehicle's passenger compartment during the search, or an officer finds probable cause that the vehicle contains evidence of the arrest.

Fond du Lac Police Department Lt. Aaron Goldstein said he is following the guidance of Assistant Wisconsin Attorney General Dave Perlman when training officers about searches.

Goldstein offered the example of a driver who has a warrant for operating after revocation. He said that in the past, an arrest could happen after an officer searched the vehicle.

"It's not going to change the way we do business when we have an arrest (and) you see something like drugs or open intoxicants in plain view or smell recently burnt marijuana," Goldstein said. "There are exceptions when you have probable cause to search the vehicle.

"What Gant did is really getting it down to mere fact. Just the mere fact that somebody is in a vehicle that we justifiably stop, there has to be something more to that story to perform a search."

Fond du Lac County Sheriff Mick Fink said the Supreme Court's 5-4 decision likely will not have a significant impact on his deputies.

"(Gant) isn't going to change us turning on the red and blues," Fink said. "If you are arrested for something, you are arrested. It's just going to effect how the deputy, in our case, searches the vehicle after you are arrested."

Goldstein noted that allowing a person to stand outside a vehicle during a search is a concern with the Police Department.

"It's not worth the officer safety concern. If we are going to be searching the vehicle, the search is going to be justified, it is going to be based on a reasonable suspicion, it's going to be based on probable cause," Goldstein said. "We are not going to have the person sitting in the vehicle while we search their car or within a grab/lunge/reach area because of the (weapons) and equipment we carry."

He added that defense attorneys could also pick apart the location of the defendant outside of the vehicle relative to the search.

Chief Deputy Mark Strand said a majority of vehicle searches come up empty. He and Fink added that they are not opposed to a deputy watching over an unrestrained person as another officer searches the car.

(snip) Continues: click here