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NC: Gant does not permit a search incident to rebut hypothetical potential defenses

By John Wesley Hall, Jr.

Gant does not permit a search incident to rebut potential defenses to whatever the basis of the stop was. State v. Mbacke, 2011 N.C. App. LEXIS 65 (January 4, 2011): We disagree with the State's reasoning because we perceive two problems arising from the highly fact-driven nature of the analysis required under Gant. First, the defenses of a good faith mistake, duress, or inadvertence could have also applied to traffic offenses such as that involved in Gant, where, for example, the defendant could have argued that he was driving without a license while under circumstances of duress. See e.g., State v. Brown, 182 N.C. App. 115, 646 S.E.2d 775 (2007) (discussing the applicability of the defense of duress to motor vehicle charges). We interpret the Supreme Court's holding in Gant to require an officer to suspect the presence of more direct evidence of the crime of arrest than the highly indirect circumstantial evidence the State contends may be necessary to rebut possible defenses...continue to full post

Full post as published by Fourth Amendment on January 20, 2011 (boomark / email).