pageok
pageok
pageok
Is Arizona v. Gant the Sleeper Crim Pro Case of the Term?:
About a month ago, I started a long post on Arizona v. Gant, a Fourth Amendment case argued yesterday involving the search incident to arrest power. I never finished the post, in part because I wasn't sure if the Court would see Gant as easy error correction under Thornton or an opportunity for Justice Scalia to pick up his pro-defendant Thornton concurrence and run with it. If it turned out to be the former, then the case wasn't worth the time. Based on the fascinating oral argument transcript from yesterday, however, it looks like the latter may be the case.

  There's a lot going on in Gant, and I can't do it justice here: I have to catch a train out of town shortly for the Jewish holiday. But I did want to flag the transcript and suggest it's worth a read: You don't often see the Supreme Court consider overruling a precedent to expand constitutional protection by replacing a bright-line rule with a standard. (Please note: If you are a fan of the popular meme of "our Supreme Court is filled with conservative activists who want to take away our rights," you may want to avoid this case to minimize uncomfortable cognitive dissonance.) Anyway, I hope to blog more about it in the future.
Dilan Esper (mail) (www):
I haven't seen the transcript yet, but the New York Times reporter who wrote up the case in this morning's paper seems to agree that this was the way the Court was heading.
10.8.2008 1:47pm
Smartest guy in the panic room:
I'm ready to go search Jefferson's carriage right now. Great reading
10.8.2008 2:00pm
Mark Jones:
I certainly hope the Court refuses to endorse this effort to expand the "officer safety" rationale for searches to include searching a car when the suspect is secured in the back of the police car. That's a blatant fishing expedition.

And I was amused, as always, to see the "reduced expectation of privacy" argument about vehicles again. Which boils down to "we've never respected your privacy rights in regard to cars before--why would you expect us to start now?"
10.8.2008 2:21pm
Eric Muller (www):
I love Justice Scalia's line about Mother Teresa.

They guy's a hoot.
10.8.2008 2:26pm
Eric Muller (www):
*the* guy
10.8.2008 2:26pm
CDU (mail) (www):

I certainly hope the Court refuses to endorse this effort to expand the "officer safety" rationale for searches to include searching a car when the suspect is secured in the back of the police car. That's a blatant fishing expedition.


There isn't really any "expansion" here even if the government wins. Police have generally been able to search the passenger compartment of a vehicle they arrested someone out of ever since New York v. Belton in 1981. Gant is essentially asking for the court to overturn Belton which would contract, rather than expand, police authority.
10.8.2008 2:28pm
bornyesterday (mail) (www):
@Eric Muller - Don't you mean "that one"?
10.8.2008 2:42pm
r.friedman (mail):
CDU --

Read the transcript. The defendant says it's not necessary to overrule Belton because Belton really decided that closed compartments within the car could be searched because they were accessible to the arrestee. The Court is dubious about this, but to some extent seemed willing to overrule Belton because its bright line rule has untethered the exception from Fourth Amendment exigency.
10.8.2008 3:41pm
CDU (mail) (www):
The defendant says it's not necessary to overrule Belton because Belton really decided that closed compartments within the car could be searched because they were accessible to the arrestee.


The defendants are arguing the barest fig leaf of justification that a decision their way will "reinterpret" Belton rather than overturn it, but I think it's clear they're asking the court to overrule Belton de facto if not de jure. Scalia, at least, seems more than willing to overturn Belton outright, though I don't know if he can get enough votes to do so.

Personally, I think the whole line of cases going back to Chimel is a mistake. Searching the suspect incident to arrest makes perfect sense, but if the officer is worried the suspect might have access to a dangerous weapon or destroy evidence in his immediate area, it makes much more sense to move the suspect somewhere else, rather than conducting a warrantless search. It's safer for the officer and doesn't require making an exception to the bill of rights. Overruling Belton (either de facto or de jure) is a good first step.
10.8.2008 3:53pm
Beth M. (mail) (www):
I moved to the DC area about a year and a half ago. I'm waiting to start a new job and have some free days, so I'm taking as much advantage of living here as I can.

I got the chance to sit in on this hearing yesterday and found it to be amusing and fascinating. There were several laughs in the courtroom over Mother Teresa and Thomas Jefferson! It was interesting to see how the Justices posed questions and at times I felt bad for the attorneys. (I have no background in law or law school.)

Thanks for all the educating you all do through this blog!
10.8.2008 4:32pm
Waldensian (mail):
That was a really thought-provoking transcript.

Scalia and I, in general, wouldn't agree on the color of an orange (and yes, I'm sure Nino is appropriately concerned about my views....).

But I agree with Orin; I think Scalia is just too darn smart to be the "conservative activist" ideologue that some would make him out to be. The man's brain is simply too big and active to move in predictable lockstep with a broad-brush ideology.
10.8.2008 4:58pm
John T. (mail):
Searching the suspect incident to arrest makes perfect sense, but if the officer is worried the suspect might have access to a dangerous weapon or destroy evidence in his immediate area, it makes much more sense to move the suspect somewhere else, rather than conducting a warrantless search.


A point rather forcefully made in the Scalia concurrence-- joined by Justice Ginsburg-- Orin linked to. There's an exception for cases where the police cannot move or secure a suspect; the natural tendency is for police to find reason that they can't do so, so that they can search always. This inevitably leads further down the slippery slope (and yes, as Eugene argues, it's valid sometimes) to the police moving people but still searching, since they could have searched if they didn't move them. Bad logic.

Of course, even Justice Scalia's pro-defendant concurrence would have still allowed the search in question, just on entirely different grounds. Still makes for an interesting case in point; Justice Scalia does not appear to be results-focused here, as he's willing to override a ruling he considers illogical even if he then won't be able to get a majority on the different grounds for allowing searches that he thinks should be allowed.
10.8.2008 5:05pm
John T. (mail):
Justice Scalia, in his concurrence, said that searching a car for drugs after an arrest for a drug violation was okay, a claim that it seemed like a majority of the Court disagreed with, with the "swing voters" feeling that they needed the fig leaf of Belton to defend the search. However, in his opinion, searching for drugs after an arrest for speeding is not.
10.8.2008 5:15pm
John T. (mail):
I also love this bit:

MR. JACOBS: Well Justice Alito stare decisis always counts except where you're wrong.
10.8.2008 5:25pm
David M. Nieporent (www):
The justices were begging Yang to give them something other than safety as a justification. They practically listed his options and said, "Pick one of these." And yet he refused to do it. Not sure I get his strategy.

But I agree that this is a likely win for the defendant and a narrowing of Belton.
10.8.2008 5:54pm
Railroad Gin:
I wish the Court would just come out and say that the Fourth Amendment doesn't apply to vehicles. Not that I support that view, but that is de facto what the law really is.

Under Belton, once the car is pulled over, its a free for all.

And it takes nothing to pull the car over. 80% of the time, any cop can find some BS reason to pull over the car. 15% of the time they think they see something that they didn't. (It turns out the license plate light wasn't burnt out. but the officer thought it was so there's reasonable suspicion that a traffic offense was committed). The other 5%, they just lie. If nothing else repealing the Fourth Amendment as to vehicles would promote honestly in law enforcement and cut down on the prolfieration of silly traffic law that are there for no other reason than to artifically create a basis for traffic stops.

Anyway, Belton at least has the merit of being clean-cut. Every traffic stop has its own set of facts. How big was the defendant? Did he appear intoxicated? How many cops were there? How big was the passenger compartment. What was the location? Etc. On literally every traffic stop there would be grounds for a suppression motion. Alternatively, the police would have to get warrant on tens of thousands of more cases every year. Philosophically, I agree with Scalia, but the transactional costs of overturning Belton are huge.
10.8.2008 6:33pm
BR (mail):
Isn't this sort of like Dickerson in that both cases involve the constitutionality of bright line rules that can't be sqaured with the text of the constitution? I remember a stare decisis argument being pretty central to upholding Miranda.
10.8.2008 6:35pm
Sean M:
Funniest lines in the transcript:

CHIEF JUSTICE ROBERTS: We'll hear argument next in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan. Mr. Furlow.

I'm sorry. We won't.

(Laughter.)

CHIEF JUSTICE ROBERTS: It's still early in the term.
Case 07-542, Arizona v. Gant. Mr. Maziarz.

JUSTICE KENNEDY: Do you have any views on the other case?
10.8.2008 6:43pm
Reg Dunlop:
At the risk of (re)exposing my ignorance, what is the "Gatt" that, per Scalia, Mother Theresa would have little likelihood of carrying? I'm generally attuned to his quips, but this one's got me stumped.

I mean, a Carmelite carrying a superseded multilateral trade treaty - that's funny. But Mother Theresa?....

Penny for someone's thought. Or clarification of a transcriber's typo.
10.8.2008 9:06pm
Philistine (mail):
I think the correct spelling is gat.
10.8.2008 9:30pm
David M. Nieporent (www):
Anyway, Belton at least has the merit of being clean-cut. Every traffic stop has its own set of facts. How big was the defendant? Did he appear intoxicated? How many cops were there? How big was the passenger compartment. What was the location? Etc. On literally every traffic stop there would be grounds for a suppression motion. Alternatively, the police would have to get warrant on tens of thousands of more cases every year. Philosophically, I agree with Scalia, but the transactional costs of overturning Belton are huge.
Or, they could just not search without probable cause.
10.9.2008 12:20am
one of many:
'gat' or 'gatt' is (possibly invented by an author) slang for a gun (personal firearm type, not artllary type). Possible etymology from Gatling gun (early machine gun) to machinegun to gun, however that may be a folk etymology (see gunsel - 1920s slang for an effeminate homosexual which became slang for a gunman due to it's use in The Maltese Falcon). Found in detective stories as a form of mob speak but there is doubt as to authenticity.
10.9.2008 12:22am
CDU (mail) (www):
Anyway, Belton at least has the merit of being clean-cut.


A rule that "There is no Fourth Amendment exception to search an automobile incident to an arrest." also has the benefit of being clean-cut.
10.9.2008 1:48am
Redlands (mail):
Anyone care to predict a workable rule to replace what exists now? I didn't have a chance to read but the first 6-7 pages this evening so I don't know if this was covered in today's argument. There's much to be said for the bright line approach but there's more to be said for 4th Amend. protections. I like the direction J. Scalia was taking the discussion from the get-go. I look forward to listening to the audio when it shows up on oyez.
10.9.2008 2:05am
MQuinn:
Professor Kerr said:

opportunity for Justice Scalia to pick up his pro-defendant Thornton concurrence

I am not sure that Scalia's Thornton concurrence is "pro-defendant".

Rehnquist's majority opinion gives a near per se right to search the vehicle of an occupant or recent occupant upon a lawful arrest. That is quite broad. Scalia appears to advocate a rule where, upon an arrest, the arrestor has a right to search the arrestee's vehicle if the arrestor has a reasonable belief that evidence of the crime of arrest will be in the car. At first glance, this appears, as Professor Kerr suggests, to be narrower—and thus more pro-defendant—than Rehnquist's approach.

However, upon close examination, Scalia's rule might actually be less pro-defendant than Rehnquist's.

The rationale for Scalia's rule is a "general interest in gathering evidence." This is totally contrary to the purpose behind the Warrant Clause of the Fourth Amendment, and is also inconsistent with the principle that exceptions to the warrant requirement are jealously guarded. Further, it is not hard to imagine how such a rationale could be extended to allow far more extensive warrentless searches.

To justify this rule, Scalia utilizes old cases that were abandoned for the very reason that they allow too much warrantless police power. For instance, Scalia cites with favor the outmoded and discarded Rabinowitz case. It is risky to suggest that we can resurrect these older cases without simultaneously allowing for broader warrantless searches.

Further, Scalia would not require probable cause to search the vehicle—only a reasonable belief. True, Rehnquist's standard doesn't require either, but there are even more reasons why Rehnquist's rule might ultimately be more pro-defendant.

For instance, Rehnquist's standard is (at least allegedly) moored to Chimel's twin rationales, which is much narrower than Scalia's rule's rationale (general evidence gathering). Thus, the scope of Rehnquist's rule is limited by a defined and low cap, whereas Scalia's rule has no such limit and thus could potentially be expanded to allow for far more extensive warrantless searches, even beyond the auto context.

In a nutshell, what I am saying is this: in the narrow facts of Gant &Thornton, the Scalia rule is more narrow. However, in the greater scheme of criminal procedure, Scalia's rule is far less pro-defendant than Rehnquist's.
10.9.2008 4:03am
Gabriel McCall (mail):
The fourth amendment requires that each search be reasonable. It does not give the courts power to authorize an unreasonable search on the grounds that it is inconvenient to the police to determine what searches are reasonable.

Mind you, I'd approve of a relatively forgiving standard of "reasonable." If the police can articulate a plausible explanation for why it was appropriate to search the car, go for it. But if the best reason they can come up with is "The Supremes said I could," that's not good enough.

With that said, the defendant's argument that the court can retain Belton and simply decide that the search is no longer contemporaneous one the suspect is secured, was entirely unconvincing. I think he'd have been better off to make the case for redefining the standard openly, rather than trying to sneak it in.
10.9.2008 9:42am
SC Public Defender:
Having looked at the transcript, I like the language and think restricting the vehicle search incident to arrest is a good thing, but....isn't it sort of a moot point if they can still do an "inventory" search of the vehicle in 90+% of the cases?

And pardon if I'm just having a bad morning and missing something that should be obvious.
10.9.2008 1:25pm