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KY: A handcuffed defendant in a police car defeats a search incident; following Gant and overruling prior cases

By John Wesley Hall, Jr.

Prior cases in conflict with Gant are overruled. Defendant was handcuffed in the back of a police car, so it was not possible for him to gain access to the car he was taken from. The search incident was invalid. Rose v. Commonwealth, 2010 Ky. LEXIS 246 (September 23, 2010) (revg Commonwealth v. Rose, 2007 Ky. App. LEXIS 6 (Ky. Ct. App., Jan. 12, 2007), which court notes was decided before Gant): In this case, at the time of the search, Appellant was secured in the back of Hardy's cruiser. As a result, there was no possibility Appellant could have gained access to the vehicle to destroy evidence or to access a weapon. Therefore, in light of the Supreme Court's ruling in Gant, we hold the search unconstitutional. To the extent that our decisions in Rainey, Henry, Penman, or any other cases promulgated by this Court conflict with Gant, they are expressly overruled...continue to full post

Full post as published by Fourth Amendment on September 30, 2010 (boomark / email).