BROWN, J.
We begin our analysis with the exception applied by the trial court: that the search producing the handgun was a lawful search incident to Merchant’s arrest. In ruling to admit the handgun into evidence, the trial court stated:
I’m not going to engage in the decision and perhaps an Appellate Court will, but I’m not going to engage in the analysis of whether or not Mr. Merchant could get past [Officer] Partridge and/or [Officer] Adair into the console. He was within five feet of the passenger compartment. I’m going to find specifically that he was not restrained, he was in direct presence of Officer Partridge but otherwise he was not restrained, he was not in handcuffs and that it is not unreasonable to believe that certainly there could have been a real struggle had Merchant, to get to the weapon and possibly get to the weapon past these officers, and I guess I don’t think it’s reasonable to place theses two officers in that kind of peril, given the circumstances of what they do. It is clear that . . . it was possible, perhaps not terribly probable but it was possible that [Merchant] could get to that weapon.
Trial Transcript at 61-62.
. . . .
Thus, the Court in Arizona v. Gant, [— U.S. —, 129 S. Ct. 1710 (2009)] ordered an end to the police practice of conducting warrantless searches incident to every arrest and reiterated the purposes underlying Chimel in defining the scope of the Belton exception. The Court 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.” Id. at 1719. The Court also stated:
Although it does not follow from Chimel, we also conclude 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.” In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. But in others, including Belton and Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127 (2004)], the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.
Id. (quoting Thornton, 541 U.S. at 632, 124 S. Ct. at 2137 (Scalia, J., concurring in judgment)) (internal citations omitted). The Court later restated this rule as “permit[ting] an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1721.
. . . .
Turning to the search at issue here, our initial inquiry under the search incident to arrest exception is whether Merchant was lawfully arrested when the search of the console was conducted. . . . .
Here, prior to Officer Adair’s search of the center console area, the officers had probable cause to arrest Merchant for unlawful use of a police radio. Merchant does not challenge Officer Adair’s initial search underneath the passenger seat upon hearing police traffic from inside the vehicle, and upon discovering the police radio the officers had probable cause to support Merchant’s arrest on that charge. [Footnote omitted.] To that end, after discovering the police radio, Officer Adair told Merchant to exit the vehicle and asked Officer Partridge to pat Merchant down. At that time, it is clear that Merchant’s liberty of movement had been restricted. Thus, despite Officer Adair’s testimony that Merchant was not formally under arrest when he was asked to step out of the vehicle, we find that Merchant’s freedom was interrupted and his liberty of movement restricted so as to effectively be under lawful arrest at that time. [Footnote omitted.]
Having determined that Merchant was effectively under lawful arrest when Officer Adair searched the center console area and discovered the handgun, we next determine whether the search complied with the requirements of Gant. Because Merchant was arrested for unlawful use of a police radio and the radio had already been recovered from the vehicle, the second prong of Gant allowing searches if it is reasonable to believe the vehicle contains evidence of the offense of arrest does not apply here. Thus, we must determine whether Merchant was “unsecured and within reaching distance of the passenger compartment at the time of the search.” Gant, 129 S. Ct. at 1719.
The evidence presented at trial demonstrates that during the search Merchant was standing with Officer Partridge about five feet from the passenger compartment. Although Officer Partridge “had either patted [Merchant] down or was in the process,” Merchant had not been placed in handcuffs at that time. . . . Thus, Merchant had yet not been secured. [Footnote omitted.] Also, despite Officer Adair’s presence in the doorway of the vehicle, Merchant was only five feet from “the passenger compartment.” Id. at 15. We agree with the trial court that Merchant was unsecured and that, in the context of the facts of this case, Merchant was within reaching distance of the passenger compartment of the vehicle.
Based upon the facts in the record, we conclude that Officer Adair’s search of Merchant’s vehicle was a lawful search incident to arrest. [Footnote omitted.] ….
MATHIAS, J., and BARNES, J., concur.