NOT TO BE PUBLISHED
OPINION
MOORE, JUDGE:
Javier Torrez appeals from a judgment and sentence entered by the Scott Circuit Court on February 5, 2009, following his conditional guilty plea to the charges of trafficking in marijuana over five pounds, operating a motor vehicle under the influence, and operating a motor vehicle without an operator's license. Torrez's conditional guilty plea preserved his right to appeal the trial court's denial of his motion to suppress. For the following reasons, we reverse the judgment and sentence entered against Torrez on February 5, 2009, as well as the February 5, 2009, order denying his motion to suppress.
On May 28, 2008, Kentucky State Trooper Darren Boyles initiated a traffic stop of a vehicle operated by Torrez.1 Torrez indicated that he did not speak English and did not have a license. He was arrested for operating a motor vehicle under the influence of alcohol. Trooper Boyles placed Torrez in the police cruiser and then searched the passenger compartment of Torrez's vehicle in an attempt to locate identification for Torrez. No such identification was found; however, Trooper Boyles did discover a bag containing packages of marijuana.
During the criminal proceeding following his arrest, Torrez moved to suppress the fruits of the vehicle search on the ground that such a warrantless search was unconstitutional. Relying on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the trial court concluded that the search of Torrez's vehicle was lawful under the search incident to an arrest exception to the Fourth Amendment's warrant requirement. Under Belton, the trial court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. at 460, 101 S.Ct. at 2864 (footnotes omitted). The trial court denied Torrez's motion to suppress; thereafter, Torrez entered a conditional guilty plea, reserving his right to appeal the denial of his suppression motion. He was then sentenced, and thereafter filed the instant appeal.
The record contains a stipulation of facts by the parties concerning Torrez's motion to suppress, including the following key stipulations: Trooper Boyles' reasonable suspicion for the traffic stop and probable cause for the subsequent arrest of Torrez are not presently challenged; the purpose of Trooper Boyles' search of Torrez's vehicle was an attempt to locate identification; and Torrez was restrained in the police cruiser during the search of his vehicle. Moreover, it appears from the record that Torrez indicated to Trooper Boyles that he did not speak English, and Torrez received the assistance of a Spanish interpreter throughout the criminal proceedings. Because the relevant facts are not in dispute, only questions of law remain for our determination. See Commonwealth v. Pride, 302 S.W.3d 43 (Ky. 2010) (when factual findings of the trial court are supported by substantial evidence, we then review the ruling on the motion to suppress de novo to see whether the decision was correct as a matter of law).
As an initial matter, all warrantless searches are per se unreasonable under the Fourth Amendment, unless the search falls within an exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Among the recognized exceptions to the warrant requirement is a search incident to an arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Rainey v. Commonwealth, 197 S.W.3d 89 (Ky. 2006). Chimel limited such a search to the area from within which the arrested individual might gain possession of a weapon or destructible evidence. 395 U.S. at 763. At the time the trial court denied Torrez's motion to suppress, the issue at bar was pending before the United States Supreme Court in the case of Arizona v. Gant, ___ U.S. ___ 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Because the Supreme Court rendered an opinion in Gant during the pendency of this appeal, reevaluation of Torrez's motion to suppress is necessary. See Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987) ("failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication").
Torrez argues the search of his vehicle was in light of the recent decision in Gant. In Gant, the Supreme Court held:
Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
Id. at 1723-24. The Court's holding thereby emphasized the importance of the only two specific, historical justifications to search a vehicle, which were first articulated in Chimel. See 395 U.S. at 763. Therefore, under Gant, police are authorized to "search a vehicle incident to arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search," or "when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." ___ U.S. at ___, 129 S.Ct. at 1719.
Gant involved an initial arrest for driving with a suspended license.2 Id. at 1715. At the time of the search of his vehicle, the defendant was secured in the back of a police vehicle. Id. The arresting officer testified that his justification for the search was "[b]ecause the law says we can do it." Id. However, the Supreme Court ruled that because the defendant was secured in the officer's vehicle and was therefore out of the reach of the passenger compartment of the vehicle, the defendant posed no threat to compromise the safety of the situation. Id. at 1719. Consequently, the Court held that there was no evidentiary basis for the search. Id. Additionally, because he was arrested for a traffic violation, there was no evidentiary basis for the search, as the police could not expect to find evidence in the car of the traffic violation. Id.
The Kentucky Supreme Court recently reviewed Gant in Rose v. Commonwealth, 322 S.W.3d 76 (Ky. 2010), whereby the Court brought "the jurisprudence of this Commonwealth into compliance with that of our nation's highest court." 322 S.W.3d at 79. Rose involved a search of a vehicle incident to an arrest for the offenses of possession of stolen mail and possession of forged instruments (checks). Id. at 77. The arresting officer located the defendant in her vehicle, and arrested her pursuant to two warrants. When the officer embarked on a search of the defendant's vehicle, however, like the defendant in Gant, the defendant in Rose was secured in the back of the arresting officer's cruiser. Id. at 80. Therefore the Court held that the officer's safety did not justify the search under Gant. Also, the arresting officer testified that he did not search the vehicle in an attempt to locate evidence relating to the offenses for which the defendant was arrested. Id. Therefore, as to an evidentiary justification for the search, the Court found:
With regard to Gant's alternative rule—that an officer may search a vehicle even when the arrestee is secured if he has a reasonable suspicion that the vehicle harbors evidence of the crime of arrest—we are satisfied that [the arresting officer] did not possess the requisite reasonable suspicion. As the record reveals, [the arresting officer] directly testified that he was not searching the vehicle in an attempt to locate evidence relating to the two warrants.
Id. Thus, the Court held that the search was unconstitutional, as it did not satisfy constitutional muster under either of Gant's justifications to search a vehicle incident to arrest of the vehicle's occupant. Id.
Likewise here, neither of Gant's justifications to search the vehicle are satisfied. The record reflects, and the parties have stipulated, that Torrez was arrested for operating a motor vehicle under the influence of alcohol. The record also indicates that during the search of Torrez's vehicle, Torrez was restrained in Trooper Boyles' police vehicle. Moreover, Trooper Boyles embarked on his search of Torrez's vehicle with the sole purpose of locating identification for Torrez, presumably because of a language barrier that inhibited communication between Trooper Boyles and Torrez. Under Gant, once Trooper Boyles had secured Torrez in the police vehicle, Torrez no longer posed a threat to Trooper Boyles' safety. Consequently, the first justification for a vehicle search incident to arrest was eliminated.
As for the evidentiary justification to search the vehicle, while an officer in Trooper Boyles' position arguably could have had reason to believe the vehicle contained evidence of the offense of arrest, i.e., evidence of recent alcohol consumption, see United States v. Ross, 456 U.S. 798, 820-21 (1982), Trooper Boyles clearly articulated, and the parties again stipulated, that his reason for searching the vehicle was to locate Torrez's identification. However, identification would provide no evidence for the offense for which Torrez was arrested, and therefore the justification of searching for identification does not withstand Gant's strict holding. Allowing Trooper Boyles to use the justification of searching for Torrez's identification would lend to precisely the type of police entitlement the Gant court sought to dissuade. 129 S.Ct. at 1722-23 ("The fact that the law enforcement community may view the ... Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected").
Whether or not the Court agrees with the decision in Gant, we are compelled to follow it when engaging in a Fourth Amendment analysis. While the officer may well have acted within bounds that were accepted prior to Gant, Gant nonetheless is now controlling authority on this point. Pursuant to Gant, the search in this matter was unconstitutional. The Commonwealth, with proper and admirable candor to the Court, all but concedes this point and argues instead that the good faith exception under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) applies to this case. The Commonwealth puts forth a good argument, but it is one which is not in accord with the majority opinion in Gant.
Accordingly, the judgment and sentence entered against Torrez on February 5, 2009, as well as the February 5, 2009, order denying his motion to suppress is reversed.
CAPERTON, JUDGE, CONCURS.
VANMETER, JUDGE, DISSENTS BY SEPARATE OPINION.
VANMETER, JUDGE, DISSENTING:
I respectfully dissent. Under Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), cited by the majority, "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." Id. at 1723 (emphasis added).
Here, the record reflects that Torrez was initially arrested for both operating a motor vehicle under the influence ("DUI") and operating a motor vehicle without an operator's license. Several courts have held, post-Gant, that following an arrest for DUI, "[i]t would be reasonable for officers to search the vehicle for evidence of driving while intoxicated, including open or empty containers." United States v. Oliva, 2009 WL 1918458, at *6 (S.D.Tex. 2009). See also Brown v. State, 24 So.3d 671, 678 (Fla. Dist. Ct. App. 2009) (holding that the "reasonable belief that evidence might be found" prong of Gant can be satisfied solely from the inference that might be drawn from the nature of the offense itself); State v. Cantrell, 233 P.3d 178, 185 (Idaho App. 2010) (arrest for DUI supplied basis for search of vehicle because DUI is an offense for which police could expect to find evidence in the vehicle).
Further, the majority opinion cannot be reconciled with the post-Gant decision of the Kentucky Supreme Court in Owens v. Commonwealth, 291 S.W.3d 704 (Ky. 2009), in which the Court, interpreting Gant, held that the discovery of a suspected crack pipe on the person of the vehicle's driver authorized a subsequent search of the vehicle since it was then reasonable for the arresting officer to believe that evidence of the offense of arrest might be found in the vehicle. See Commonwealth v. Elliott, 322 S.W.3d 106 (Ky.App. 2010) (holding that a reasonable reading of Gant, as set forth by our Supreme Court in Owens, clearly holds that the search-incident-to-arrest exception is available after the arrestee has been secured in the police cruiser if it is reasonable to believe the arrestee's vehicle contains evidence of the offense of arrest). I would also note that in Elliott, like the instant case, the charge which gave rise to the search was DUI.
In this case, Trooper Boyles could reasonably believe the vehicle contained evidence relating to the offense of arrest, both DUI and identification for Torrez, and properly searched the passenger compartment of Torrez's vehicle for such evidence.
I would affirm the judgment and sentence of the trial court.
