S.D.Tex.: Arrest and handcuffing for not signalling did not justify SI under Gant

Defendant was stopped for not signaling. Five officers showed up. He was arrested and handcuffed and then one officer searched the vehicle console without any justification. The search incident was invalid under Gant, and it could not be justified by the government's strained theory of his being involved in a conspiracy, too. United States v. Holland, 2011 U.S. Dist. LEXIS 5261 (S.D. Tex. January 20, 2011)*: The government's primary argument, however, is not that the defendants could have accessed the vehicle but that it was reasonable for Oppermann to believe the vehicle contained evidence of the offense of arrest. Oppermann testified, however, that the only offense for which he had probable cause for the traffic stop was the traffic violation – changing lanes without signaling – and that Oppermann did not expect to find any evidence of the traffic violation when he searched the console. Relying on Devenpeck v. Alford, 125 S. Ct. 588 (2004), the government argues that the relevant "offense of arrest" for this inquiry is conspiracy to possess with intent to distribute a controlled substance, the crime for which the defendants were later indicted, instead of the traffic violation, and that the search is justified because Oppermann was searching for evidence of the drug-conspiracy offense. Officer's had an arrest warrant for a third person who they knew was not at his own home and was reasonably believed to have been at defendant's for a week. Thus, the entry on that arrest warrant was valid. United States v. Zavala, 2011 U.S. App. LEXIS 1055 (11th Cir. January 18, 2011) (unpublished).* Defendant's claims that appellate counsel did not chose better arguments for appeal of his search issue would not have succeeded, so no IAC. United States v. Murphy, 2011 U.S. Dist. LEXIS 5293 (W.D. Va. January 20, 2011).*

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