Search of a vehicle following arrest violates the Fourth Amendment when it is not reasonable to believe evidence relevant to the crime might be found in the vehicle. Police officers stopped appellant for relatively minor traffic violations and directed him out of his vehicle. When he refused, they broke the window, tasered and pepper sprayed him, and forcibly removed him from the vehicle. He was then arrested for interfering with a police officer (Pen. Code, sec. 148). His vehicle was searched and 11 clear, empty plastic baggies and some $65 in cash were located in the center console. Shortly after the arrest, upon returning to the police station, one of the officers did a background check of a passenger in the vehicle and determined that he was on parole. It was also established that appellant had previously been arrested for murder, at which time his car was searched and a gun was found in the air vent. Officers then went to the impound yard and searched the air vents of appellant’s impounded vehicle and located rock cocaine. The appellate court overturned the lower court’s denial of appellant’s motion to suppress both vehicle searches. Arizona v. Gant (2009)556 U.S. 332 __ [173 L.Ed.2d 485, 129 S.Ct. 1710], established a two-part rule to evaluate an automobile search incident to arrest. Here, the searches did not fall within the first prong because during the first search, appellant was immobilized and had no access to the car and, during the second search, he was not present. Nor did the searches fall within the second prong. If the nature of the offense is such that you would not reasonably expect to find additional evidence in the car, as you would with a drug offense, then the specific circumstances of the arrest can be considered to determine whether reasonable suspicion exists that the car contains evidence of the offense of arrest. In this case, it was not reasonable to believe that there would be evidentiary traces of the resisting arrest offense in the car once appellant was outside it, and there was nothing in the circumstances of the arrest itself to suggest that there would be evidence of the resisting in the car.
The searches also could not be justified under the automobile exception. The automobile exception allows police to search if they have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband. Here, the People did not establish the requisite probable cause. The facts known to the officers were that appellant swerved after two turns, he was nervous, he refused to exit the car, the stop was at night and in an area claimed by a gang. None of these factors, together or alone, under case law, establish probable cause. There was also no probable cause for the search at the impound yard.