Firth Circuit Notes Split Re Whether Gant Applies Solely in the Vehicular-Search Context

Per U.S. v. Curtis, --- F.3d ----, 2011 WL 846703 (5th Cir. Mar. 11, 2011):

Curtis argued that Edwards's search of Curtis's cell phone was unlawful under the new rule announced by the Supreme Court in Arizona v. Gant. In Gant, the Court held that police may “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.” Our sister circuits have divided over whether Gant applies solely in the vehicular-search context or whether it generally limits the scope of the search-incident-to-arrest exception.^FN22 We need not reach this question.

FN22. Compare United States v. Brewer, 624 F.3d 900, 905-06 (8th Cir.2010) (declining to apply Gant to a search of an arrestee's person), petition for cert. filed, No. 10-9224 (Feb. 24, 2011), and United States v. Perdoma, 621 F.3d 745, 751-52 (8th Cir.2010) (declining to apply Gant to a search of a bag recovered from an area within the arrestee's immediate control), petition for cert. filed, No. 10-8844 (Feb. 2, 2011), with United States v. Shakir, 616 F.3d 315, 318 (3d Cir.) (“Because Gant involved an automobile search, and because it interpreted Belton, another automobile case, the Government contends that the rule of Gant applies only to vehicle searches. We do not read Gant so narrowly. The Gant Court itself expressly stated its desire to keep the rule of Belton tethered to the justifications underlying the Chimel exception, and Chimel did not involve a car search.” (internal citation and quotation marks omitted)), cert. denied, 131 S.Ct. 841 (2010).