The Impact of Arizona v. Gant on Searches of Hand Luggage Incident to Arrest – North Carolina Criminal Law

Law enforcement officers have long been authorized to search a person incident to the person’s arrest. But the precise scope of that authority has shifted over time. The most recent major case in this area was Arizona v. Gant, 556 U.S. 332 (2009), which placed new limits on an officer’s ability to search a motor vehicle incident to the arrest of an occupant. Whether Gant has any impact on an officer’s authority to search hand luggage like purses and backpacks has been the subject of considerable controversy. The issue is important given the ubiquity with which men as well as women carry backpacks, satchels, crossbody slings, and many other types of bags. This post discusses searches of such items incident to arrest.

The Supreme Court landmarks. Understanding this area of law requires knowing three major cases.

First, in Chimel v. California, 395 U.S. 752 (1969), officers searched an arrestee’s entire home incident to his arrest. The Supreme Court ruled that the search violated the Fourth Amendment. It held that a search incident to arrest could extend only to the area “within the immediate control” of the person arrested – in essence, the area from which he might access a weapon or destroy evidence.

Second, in New York v. Belton, 453 U.S. 454 (1981), an officer stopped a vehicle for speeding, smelled marijuana, and arrested the four occupants for possession of marijuana. He then searched the passenger compartment of the vehicle and found cocaine. The Supreme Court upheld the search, stating that the passenger compartment of the vehicle was “within the immediate control” of the arrestees and so was subject to a search incident to arrest. Based on Belton, courts routinely ruled that the passenger compartment of any vehicle could be searched incident to the arrest of any recent occupant.

Third, in Gant, officers arrested a man for driving with a suspended license. They handcuffed him and placed him in a patrol car, then searched his vehicle, finding cocaine. The arrestee challenged the constitutionality of the search, and the Court ruled that it violated the Fourth Amendment. It rejected the prevailing understanding of Belton and held that “the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” It also held that “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Neither justification applied to the arrestee in Gant, so the search was unconstitutional.

Gant was a major change in the law. Its holding upset the settled understanding of Belton, and it spawned a number of questions, including:

• What does “unsecured” mean? For example, if an arrestee is handcuffed but not in a police vehicle, is the arrestee secured? This has proven to be a tricky and fact-specific issue. Some pertinent cases are United States v. Horsley, 105 F.4th 193 (4^th 2024) (arrestee was secured where handcuffed and in the presence of multiple officers); United States v. Ferebee, 957 F.3d 406 (4^th Cir. 2020) (arrestee was not secured despite being handcuffed; he “still could walk around somewhat freely and could easily have made a break for the backpack” he had been carrying); United States v. Perdoma, 621 F.3d 745 (8^th Cir. 2010) (arrestee was not completely secured despite being handcuffed where he was “held in close proximity to his bag while it was searched”).
• What does “reasonable to believe” mean? In North Carolina, it is equivalent to reasonable suspicion. See State v. Mbacke, 365 N.C. 403 (2012). The Fourth Circuit has held that it is less than probable cause but has not specifically ruled that it means the same thing as reasonable suspicion. See United States v. Turner, 122 F.4th 511 (4^th 2024).
• Are there types of offenses for which it is normally “reasonable to believe” that evidence of the crime of arrest will be found in the vehicle? Gant itself suggests that for administrative traffic offenses, it is normally not reasonable to believe that evidence will be found in the vehicle. See also State v. Johnson, 204 N.C. App. 259 (2012) (not reasonable to believe that evidence of driving while license revoked will be found in the arrestee’s vehicle). The answer is likely different for alcohol-related motor vehicle offenses. See State v. Fizovic, 240 N.C. App. 448 (2015) (reasonable to believe that evidence of an open container violation, such as additional alcohol containers, will be found in the arrestee’s vehicle). When the arrest is for a recent drug or gun offense, courts regularly rule that it is reasonable to believe that evidence of the crime of arrest may be found in the arrestee’s vehicle. See State v. Mbacke, 365 N.C. 403 (2012) (carrying a concealed gun); State v. Foy, 208 N.C. App. 562 (2010) (same); United States v. Turner, 122 F.4th 511 (4^th 2024) (gun theft); United States v. Webster, 625 F.3d 439 (8^th Cir. 2010) (“distinguish[ing] cases . . . in which defendants were arrested for drug offenses” from Gant because drug cases typically involve reason to believe that evidence of the crime of arrest will be found in the arrestee’s vehicle).

Today’s question. The issues mentioned above are significant, but perhaps the most intriguing question after Gant was whether its reasoning would apply to searches of purses, backpacks, briefcases, and the like. Are such items part of the arrestee’s person, and so automatically subject to a search incident to arrest? Or are they more like the vehicle in Gant, only subject to a search if the arrestee is unsecured and within reaching distance of them? I raised that question here, shortly after Gant was decided, and my colleague Shea Denning posted about a Fourth Circuit case on the issue here a few years ago. There are more cases now and it’s time to dive back in.

The law of luggage. Courts thinking about searches of personal items have one more major precedent to keep in mind. In United States v. Chadwick, 433 U.S. 1 (1977), officers arrested suspected drug traffickers as they got off a train and into a waiting car. The officers seized the suspects’ “double locked footlocker” but did not search it until more than an hour later, when the footlocker was safely in the officers’ building. The Supreme Court ruled the search unconstitutional because the search was remote in time and place from the arrest and the suspects were securely in custody: “Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” See also State v. Thomas, 81 N.C. App. 200 (1986) (following Chadwick in a case involving the search of a large suitcase after the defendant’s arrest for suspected drug trafficking; the court noted that the defendant was in custody, the suitcase was not in his immediate control, and indeed, it had been “effectively reduced to the agents’ exclusive control”).

Chadwick and its progeny are pertinent but not dispositive. One can certainly argue that a purse or a backpack is more closely associated with a person than is a footlocker or a large suitcase. So how have courts treated bags and backpacks after Gant?

Case law after Gant. The most important case for folks in North Carolina is United States v. Davis, 997 F.3d 191 (4^th Cir. 2021). In a unanimous opinion written by Judge Wynn, the Fourth Circuit determined that “the Supreme Court’s holding in Gant applies beyond the automobile context to the search of a backpack.” It invalidated a search of an arrestee’s backpack because the arrestee was secured: he was face-down on the ground, in handcuffs, and was held at gunpoint by multiple officers at the time of the search. A search of the arrestee’s vehicle would not be allowed under such circumstances, pursuant to Gant, and the Davis court ruled that the backpack search was similarly impermissible. (The court further explained that the second prong of Gant, allowing a search of an arrestee’s vehicle incident to arrest if it was reasonable to believe that evidence of the crime of arrest would be found in the vehicle, was based on what the Supreme Court had called “circumstances unique to the vehicle context,” and so could never support the search of personal property.)

The Davis court noted that it was joining several other circuits in its approach, citing United States v. Shakir, 616 F.3d 315 (3d Cir. 2010); United States v. Cook, 808 F.3d 1195 (9th Cir. 2015); and United States v. Knapp, 917 F.3d 1161 (10th Cir. 2019), as also applying Gant outside the context of motor vehicles.

Yet there are also cases pointing in the opposite direction. In United States v. Perez, 89 F.4th 247 (1^st Cir. 2023), decided after Davis, the court upheld a search incident to arrest of a backpack, noting that Gant addresses vehicles and Chadwick addresses footlockers, meaning that they have “literally nothing to say about where the line should be drawn in searches incident to arrest when it comes to things an arrestee carries at the time of the arrest.” The court therefore followed its own pre-Gant precedents and approved of the search.

A number of state courts have also wrestled with various types of hand luggage, often concluding that purses and fanny packs and backpacks are more like wallets (closely associated with the person and automatically subject to a search incident to arrest) than like vehicles or footlockers. See, e.g., State v. Scullark, __ N.W.3d __, 2025 WL 1717213 (Iowa, June 20, 2025) (“We conclude that because the fanny pack was attached to his person at the time of the arrest, this is a search of the person . . . rather than a search of the area within his immediate control [and so is not governed by Gant].”); Commonwealth v. Bembury, 677 S.W.3d 385 (Ky. 2023) (reasoning that a backpack worn at the moment of arrest is part of the “person” and so is automatically subject to a search incident to arrest); State v. Mercier, 883 N.W.2d 478 (N.D. 2016) (upholding the search incident to arrest of a backpack because it was “immediately associated with the arrestee” and should be treated as part of the arrestee’s person); State v. Byrd, 310 P.3d 79 (Wash. 2013) (ruling that the search incident to arrest of a purse was proper and more akin to a search of a wallet than a search of the arrestee’s surroundings).

The bottom line. There’s no North Carolina appellate case right on point and the persuasive authority is mixed. So:

• If I were advising a law enforcement officer, I would advise not searching hand luggage incident to arrest, because the law is unsettled and it is good to be careful. The larger the luggage, the more separate it is from the arrestee, and the longer the time that has passed since arrest the more cautious I would recommend being.
• If I were advising a defense attorney, I would recommend pushing Davis and the cases it cites as powerful persuasive authority for the invalidity of searches of hand luggage incident to arrest.
• If I were advising a prosecutor, I would suggest (1) arguing that Perez and the state cases cited above are right and Davis is wrong, and (2) considering, as a back up plan, arguing that the hand luggage would have been subject to an inventory search in any event, which could support an inevitable discovery argument.

I’m going to leave comments open on this post. If I’ve missed an important case or if you have thoughts about the analysis above, please post a comment. I’m sometimes slow to moderate them, but I always appreciate thoughtful discussion.