                                            RENDERED: SEPTEMBER 23, 2010
                                                        TO BE PUBLISHED

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                              2007-SC-000123-DG
                              2007-SC-000603-DG
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 HEATHER ROSE                                    APPELLANT/ CROSS-APPELLEE



                    ON REVIEW FROM COURT OF APPEALS
V.                      CASE NO. 2005-CA-001211-MR
                   ESTILL CIRCUIT COURT NO . 04-CR-00003



COMMONWEALTH OF KENTUCKY                        APPELLEE/ CROSS-APPELLANT



                OPINION OF THE COURT BY JUSTICE SCOTT

                                  REVERSING


      On May 17, 2005, the Estill Circuit Court entered an order suppressing

the fruits of a vehicle search conducted incident to the arrest of Heather Rose,

Appellant. The evidence directly implicated Appellant in four counts of

Possession of Stolen Mail Matter and three counts of Criminal Possession of a

Forged Instrument in the second degree . On direct appeal to the Kentucky

Court of Appeals, the Commonwealth successfully argued that the trial court's

order ran awry of established Fourth Amendment precedent of the United

States Supreme Court. The Court of Appeals issued an opinion reversing the

Estill Circuit Court's suppression order, finding the search reasonable as
incident to an arrest. We granted discretionary review to determine the

correctness of that opinion, and now reverse the Court of Appeals .l

                                        Facts

       On November 19, 2003, Estill County Deputy Sheriff, Kevin Hardy,

proceeded to Appellant's home, intending to arrest her pursuant to two arrest

warrans2 and to question her regarding certain stolen checks. En route,

Hardy noticed a vehicle driven by Danny Rose, Appellant's spouse, and

recognized the passenger in the vehicle as Appellant. As he observed the

vehicle, he witnessed Appellant's "head go down into the seat."

      After stopping the vehicle, Hardy discovered that Appellant was no longer

in the passenger compartment and that "the back seats of the vehicle had a

little gap between them and the trunk ." Hardy further testified that he

"thought she probably had laid those seats down and climbed into the trunk."

Hardy's suspicions were confirmed when Appellant's spouse admitted that his

wife was in the trunk of the vehicle . Hardy then removed Appellant via the

back seat entrance to the trunk, and executed the two outstanding warrants

for her arrest.

      Upon securing Appellant in the back of his cruiser, Hardy obtained Mr.

Rose's consent to search the vehicle where he found a purse, a little leather


  1 After granting Appellant's motion for discretionary review to decide whether the
  Court of Appeals correctly determined that the search was valid as a search
  incident to arrest, the Commonwealth filed a cross-appeal which we also granted.
  However, both address essentially the same issue disposed of herein.
  2 Although there was testimony regarding one of the warrants (issued for traffic
  fines), the record is unclear regarding the second warrant.
 bag, and a change purse. A further search of these items yielded checks,

 which Appellant admitted derived from stolen mail.

       Subsequently, the Commonwealth charged Appellant with various counts

 of Possession of Stolen Mail Matter and Criminal Possession of a Forged

 Instrument in the second degree, violations of KRS 514.150 and KRS 516 .060.

After pleading not guilty, Appellant moved to suppress the contents of the

purse, bag, and change purse, arguing that they were the products of an

unconstitutional search under the Fourth Amendment of the United States

Constitution and under Section Ten of the Kentucky Constitution . Appellant

specifically asked the trial court to find the search unreasonable because,

among other reasons, Appellant was not near the vehicle at the time of the

search and because Hardy testified that he never felt that he was in danger.

The Commonwealth reasoned that the search was incident to an arrest and,

furthermore, was constitutional because Appellant's spouse consented to

Hardy's request to search the vehicle . 3

      After ordering the parties to brief the issue, the trial court held the

search unreasonable and granted Appellant's motion to suppress . In support

of its decision, the trial court reasoned that the search was not incident to

arrest because "that is not what the Deputy testified to." The trial court

further found that although Mr. Rose consented to the search of the vehicle,

there was no evidence to support the notion that Mr. Rose possessed the

  3 Although Appellant argued lack of consent before the trial court and it was
  mentioned in the Court of Appeals' opinion, neither the Commonwealth nor the
  Appellant raised this issue before this Court.
 authority to, give Hardy permission to search his wife's possessions . The

 Commonwealth sought review as a matter of right in the Kentucky Court of

 Appeals .

       Aptly relying on New York v. Belton, 453 U.S . 454 (1981), the Court of

 Appeals reversed the Estill Circuit Court, reasoning that the search in this case

 was incident to Appellant's lawful arrest because she was a recent occupant of

 the vehicle . We subsequently granted discretionary review .

       After we granted review, but before we decided the issue, the United

 States Supreme Court granted a writ of certiorari in State v. Gant, 162 P.3d

640 (Ariz. 2007) . That case involved facts markedly similar to those here-the

search of a vehicle, allegedly incident to an arrest, after officers secured the

arrestees in the back of a patrol car. In light of the factual and legal

similarities, we ordered this matter held in abeyance pending a ruling from our

federal counterpart.

      In the mean time, however, we rendered an opinion in Henry v.

Commonwealth, 275 S.W .3d 194 (Ky. 2008) . There, this Court, like the Court

of Appeals in this case, rejected the appellant's argument that because "he was

in the back of the police cruiser and could not reach into his vehicle either to

arm himself or to destroy evidence, the grounds for a Belton search did not

exist and the search of his vehicle was therefore unlawful." Henry, 275 S .W.3d

at 200-01 . Indeed, in Henry, we relied upon several previous decisions from

this Court which rejected identical arguments to those made here . See, e.g.,
Rainey v. Commonwealth, 197 S .W.3d 89 (Ky . 2006) ; Penman v.

Commonwealth, 194 S.W.3d 237 (Ky. 2006) .
       Following Henry, the United States Supreme Court decided Arizona v.

Gant, 129 S .Ct. 1710 (2009), redefining the constitutional analysis

surrounding the search of a vehicle incident to the arrest of a recent occupant .

This approach, as discussed below, directly contradicts our existing

jurisprudence on the subject. Thus, we now find it necessary to bring the

jurisprudence of this Commonwealth into compliance with. that of our nation's

highest court.

      In Chimel v. California, 395 U .S. 752 (1969), the United States Supreme

Court held "that a search incident to arrest may only include the arrestee's

person and the area within his immediate control-construing that phrase to

mean the area from within which he might gain possession of a weapon or

destructible evidence ." Gant, 129 S.Ct. at 1716 (citing Chimel, 395 U.S . at 763)

(internal quotations omitted) . Just over a decade later, the Supreme Court

expanded the scope of Chimel, reading it to encompass not only vehicle

searches incident to the arrest of a recent occupant, but searches of any

containers enclosed therein. Belton, 453 U.S . 454 . And in a more recent case,

the Supreme Court interpreted its Belton decision to mean: "when a police

officer makes a lawful custodial arrest of an automobile's occupant, the Fourth

Amendment allows the officer to search the vehicle's passenger compartment

as a contemporaneous incident of arrest." Thomton v. United States, 541 U .S.

at 615 (2004) . In Thornton, the Supreme Court, citing a need for a bright-line
rule, held that Belton applies even when the officers do not make contact with

the arrestee until after he has exited the vehicle . Id. at 617. As a result of

Chimel's progeny, a plethora of courts have now construed the Fourth

Amendment of the United States Constitution and Belton as allowing a vehicle

search incident to the arrest of a recent occupant "even if there is no possibility

the arrestee could gain access to the vehicle at the time of the search." Gant,

129 S.Ct. at 1718.

      Concerned with the "clarity" of Belton and questioning its "fidelity to

Fourth Amendment principles," a chorus of voices, including many courts and

scholars, implored the Supreme Court to revisit the line of cases controlling

vehicle searches incident to arrest . Id. at 1716 . Among them was Arizona in

the matter of State v. Gant, 162 P .3d 640 .

      In Gant, police officers arrested a defendant for driving on a suspended

license, handcuffed him, and placed him in the back of a patrol car. 129 S.Ct.

at 1714 . After securing Gant, the police searched his vehicle and discovered

incriminating evidence   in the pocket of a jacket on the backseat. Id. Following
various lower court rulings, the Arizona Supreme Court ordered the evidence

suppressed, relying on the fact that Gant "could not have accessed his car to

retrieve weapons or evidence at the time of the search." Id. In support of its

decision, that court distinguished Belton "as a case concerning the permissible

scope of a vehicle search incident to arrest and concluded that it did not

answer the threshold question whether the police may conduct a search
incident to arrest at all once the scene is secure ." Id. at 1715 (internal

quotations and citations omitted) .

       On certiorari, and agreeing with the Arizona court, the United States

Supreme Court noted Justice O'Connor's observation in Thomton that: "lower

court decisions seem now to treat the ability to search a vehicle incident to the

arrest of a recent occupant as a police entitlement rather than as an exception

justified by the twin rationales of Chimel." Gant, 129 S .Ct . at 1718 (citing

Thornton, 541 U.S . at 624 (O'Connor, J ., concurring in part)) . In rejecting the

notion that police possessed such entitlement, the Court noted that the central

concern of the Fourth Amendment was to prevent "giving police officers

unbridled discretion to rummage at will among a person's private effects."

Gant, 129 S.Ct. at 1720. With this concern in mind, the Court held that a
broad application of Belton, which allows vehicle searches incident to any

arrest, as "anathema to the Fourth Amendment ." Id. at 1722 . The Court

reasoned that the exceptions created in Belton were for "genuine [officer] safety

or evidentiary concerns encountered during the arrest of a vehicle's recent

occupant" and concluded that where "there is no possibility that an arrestee

could reach into the area that law enforcement officers seek to search, both

justifications for the search-incident-to-arrest exception are absent and the

rule does not apply." Id. at 1716.

      However, just short of ending its analysis, the Court found it pertinent to

note that when considering the constitutionality of a vehicle search incident to

the arrest of a recent occupant, a court may find the search constitutional even
where the arrestee is secured if "it is reasonable to believe evidence relevant to

the crime of arrest might be found in the vehicle ." Id . at 1714 (emphasis added) .

With these principles in mind, we turn to the case at bar.

      In this case, at the time of the search, Appellant was secured in the back

of Hardy's cruiser. As a result, there was no possibility Appellant could have

gained access to the vehicle to destroy evidence or to access a weapon .

Therefore, in light of the Supreme Court's ruling in Gant, we hold the search

unconstitutional. To the extent that our decisions in Rainey, Henry, Penman,

or any other cases promulgated by this Court conflict with Gant, they are

expressly overruled.

      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 Hardy

did not possess the requisite reasonable suspicion. As the record reveals,

Hardy directly testified that he was not searching the vehicle in an attempt to

locate evidence relating to the two warrants . Thus, we cannot conclude that

the search satisfies constitutional muster under Gant's alternative analysis.

Therefore, we hold that the search in this case was unconstitutional and the

evidence procured the fruit of a poisonous tree .

      For the foregoing reasons, the opinion of the Court of Appeals is reversed

and the order suppressing the evidence is reinstated.

      All sitting. All concur.
COUNSEL FOR APPELLANT/ CROSS-APPELLEE :

Joseph Brandon Pigg
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601


COUNSEL FOR APPELLEE/ CROSS-APPELLANT:


Jack Conway
Attorney General of Kentuc

Jeffrey Allan Cross
Criminal Appellate Division
Office of the' Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
