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Supreme Court Limits Search-Incident-to-Arrest Exception:
The Supreme Court handed down Arizona v. Gant this morning, imposing a new limitation on the search incident to arrest power when the police want to search an automobile. Under New York v. Belton, the rule has been that the police can search the passenger area of a car when they arrest an occupant or recent occupant of the vehicle. Today, in a vote of 5-4, the Supreme Court added a new limitation: The police can search a car following arrest only if they could have a reasonable belief 1) that the person arrested "could have accessed his car at the time of the search" or 2)"that evidence of the offense for which he was arrested might have been found therein."

  In the majority opinion by Justice Stevens, the Court concludes that these limitations are proper because the absence of these limitations simply gives the police too much power, power that cannot be justified by the reasonableness requirement of the Fourth Amendment. Stare decisis does not prevail because it is pretty clear to the majority that searches absent an evidentiary or police safety nexus are unconstitutional, and that the police are just going too far relying on the traditional broad reading of Belton.

  Stay tuned for more Gant-blogging throughout the day.
Uh_Clem (mail):
Stevens, joined by Ginsburg, Souter, Scalia, and Thomas.

Excuse me while I pick my jaw up off the floor.

Then, maybe, I'll have something insightful to add.
4.21.2009 11:09am
EnriqueArmijo (mail):
If only this case had come down while I was in law school. Then I wouldn't have spent hours trying to figure out why a rule intended to protect an officer from an arrestee who reaches back into his car for a weapon was consistently read to permit a search of the car after the arrestee was already cuffed and stuffed.
4.21.2009 11:13am
A Law Dawg:
I don't know a damn thing about 4th Amendment law except for what I forgot 10 minutes after the MBE, but this seems like a good ruling judging from Orin's summary. I never understood what made cars so special that they could be searched after an arrest.
4.21.2009 11:15am
lawgrad:
Wow. This is a significant ruling, both for what it holds and for who decided it.
4.21.2009 11:19am
alex_the_greek:
Wow. Stevens and Scalia on the same side, and Breyer dissenting against narrowing of the Fourth Amendment. Didn't see that one coming. Well Scalia, yes, as he never approved of the auto exception to begin with.
4.21.2009 11:19am
Oren:
Scalia's "concurrence" proves one thing -- he remains the most awesome Justice on the Court.


No other Justice, however, shares my view that application of Chimel in this context should be entirely abandoned. It seems to me unacceptable for the Court to come forth with a 4-to-1-to-4 opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by JUSTICE STEVENS. The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I therefore join the opinion of the Court.

I've never read a concurring opinion in which the Justice clearly that he disagrees with the opinion that he's joining. The cojones on that man . . .
4.21.2009 11:21am
Oren:

Stevens and Scalia on the same side

Their not on the same side, Scalia just prefers to be wrong like Stevens not wrong like Breyer (while all the while maintaining that they are both wrong and that he is the only one on the Court with the right answer).

This is one for the ages.
4.21.2009 11:22am
Prosecutorial Indiscretion:
This seems pretty clearly right based on the sum of the Court's Fourth Amendment jurisprudence, but it is going to confuse the hell out of law enforcement officers. I don't know how much effect it will have in practice, though, as many arrestees have their cars towed and then searched as part of regular administrative procedure. My guess is that a lot of evidence seized in violation of this rule will come in anyway through the inevitable discovery doctrine.
4.21.2009 11:22am
FantasiaWHT:
Scalia's not surprising - he has a very simple view of whether or not the search itself is reasonable. No reason to search a car except to protect the cops or you have a reason to believe evidence of whatever crime is suspected can also be found in the car.
4.21.2009 11:23am
xx:
Oren: Why is it a good thing that Justice Scalia spells that out? It seems somewhat vain of him. Surely all of the Justices have occasionally made lesser-of-the-two-evils assessments. If you believe the Court should speak with a clear voice, as he apparently does, why not just do so?
4.21.2009 11:24am
FWB (mail):
Typical. Holes in the 4th since the Court doesn't REALLY incorporate but makes up things as it goes along. A perusal of law and law books in the 19th century show that the 4th REQUIRES a warrant and the warrant cannot issue but upon probable cause AND the warrant must give the particulars (BE SPECIFIC). True incorporation would just do it rather than playing God and making the law so complex it takes a supercomputer to sort it all out. If you need a warrant to search a house, you need a warrant to search a car. Simple. Direct. Leaves no room for future judges to screw around with things.

Tiochfaidh ar la!
4.21.2009 11:26am
CMH:
Like several others above, it's been some time since I delved into the nuances of the Fourth Amendment. But couldn't essentially the same search be done as a inventory search of the car? In other words, cops arrest occupants, tow the car to an impound lot, and do an exhaustive search at that time under the guise of accounting for all of the car's contents.

Presumably, they're going to tow the car anyway, so the only difference is the cops will search the car at a lot rather than on the side of the road. I don't see why they wouldn't go this route.
4.21.2009 11:26am
Gabriel McCall (mail):
many arrestees have their cars towed and then searched as part of regular administrative procedure.

Does this decision impact on that practice as well? What makes a post-towing search reasonable if there's no officer safety issue nor reasonable suspicion of evidence?
4.21.2009 11:27am
FantasiaWHT:
I guess my question is... why won't cops just search the car before they take the arrestee out?
4.21.2009 11:27am
Prosecutorial Indiscretion:
A perusal of law and law books in the 19th century show that the 4th REQUIRES a warrant and the warrant cannot issue but upon probable cause AND the warrant must give the particulars (BE SPECIFIC)

Since current Fourth Amendment jurisprudence offers many opportunities for the federal government to avoid the warrant requirement, I don't see how incorporation would help.

I agree that the current law is a bit of a mess, but when you have a standard as vague as "reasonable," that seems like a foreseeable issue.
4.21.2009 11:29am
krs:
Why is it a good thing that Justice Scalia spells that out? It seems somewhat vain of him. Surely all of the Justices have occasionally made lesser-of-the-two-evils assessments. If you believe the Court should speak with a clear voice, as he apparently does, why not just do so?

Perhaps to ward off the "he says he's an originalist, but he joined the majority in ____" complaints.
4.21.2009 11:29am
J. Aldridge:
Never ceases to amaze me how all justices of the court never can fully grasp what the Fourth Amendment serves to prevent. Think I will have a coronary on the day they get it right.
4.21.2009 11:29am
Oren:

If you believe the Court should speak with a clear voice, as he apparently does, why not just do so?

Because there is intrinsic value in being right, even if you can't convince anyone else that you are right.

At any rate, I think it's valuable for future lawyers, judges and academic-types to have his semi-concurrence on the record at the very least as an exercise in how the 4A might be construed.
4.21.2009 11:30am
FantasiaWHT:

Does this decision impact on that practice as well? What makes a post-towing search reasonable if there's no officer safety issue nor reasonable suspicion of evidence?


Let me see if I can remember... there are three justifications:

1) Preventing claims by prisoners that something was stolen/damaged while the cops had it
2) Preventing contraband from entering wherever (although I think that's more needed on inventory searches of persons and effects when arrested)
...
can't remember the third one, sorry.
4.21.2009 11:31am
Oren:

I agree that the current law is a bit of a mess, but when you have a standard as vague as "reasonable," that seems like a foreseeable issue.

Indeed, you have tension between creating uncertainty by having vague standards or having strict standards that do not properly capture the nuances of each individual case. The framers obviously chose the latter, for good reason.
4.21.2009 11:32am
Soronel Haetir (mail):
As for towing, wouldn't that only apply where the car is on a roadway? Given that Gant drove to the location of his arrest and was in fact already out of the car by the time he was approached what possible justification would there be for the vehicle to be removed?
4.21.2009 11:37am
PIzza Snob:
FWB:


"Tiochfaidh ar la!"


It already came; they lost.

On topic: does the "reasonable expectation of evidence" plank limit the applicability of this? Every traffic stop just needs to be for erratic driving and there's reasonable expecation that you'll find booze or drugs in the car.
4.21.2009 11:43am
CDU (mail) (www):

Presumably, they're going to tow the car anyway, so the only difference is the cops will search the car at a lot rather than on the side of the road. I don't see why they wouldn't go this route.

In this particular case, the car was in the suspect's driveway at the time he was arrested. I don't know if the police would have really had any justification to tow it.
4.21.2009 11:44am
CrazyTrain (mail):
"Stevens, joined by Ginsburg, Souter, Scalia, and Thomas.

Excuse me while I pick my jaw up off the floor."

Anyone who would need to "pick [his/her] jaw of the floor" after seeing that lineup is not very familiar with the Supreme Court. This is the Apprendi 5 -- look it up. These five have been together on the most important criminal procedure cases in the last decade -- most notably Apprendi, Ring &Blakely. They are the five who favor bright line rules, while the other four are more wishy-washy and like balancing tests and the like. A few years ago, there was quite a bit of writing about this -- how the Apprendi split signaled a split amongst formalists (the Apprendi 5) and pragmatists (being Breyer, Kennedy, Rehnquist &O'Connor -- not totally clear yet whether Roberts and Alito are like the WHR &SOC).
4.21.2009 11:44am
Oren:



On topic: does the "reasonable expectation of evidence" plank limit the applicability of this? Every traffic stop just needs to be for erratic driving and there's reasonable expecation that you'll find booze or drugs in the car.


Is it the offense for which he was arrested (suspended license) or the offense for which he was pulled over that counts?
4.21.2009 12:00pm
Kenvee:
CMH, I agree that the inventory exception would still allow a lot of searches that would otherwise be barred under this new rule. But it doesn't apply to all of them. If, like it appears in this case, the car is legally parked or released to someone at the scene, then the police have no reason to tow it and thus search it. And if the police are simply investigating someone but don't yet have PC to arrest, then they can't tow and search either.

I'm still digesting the legal arguments on this, although my tentative thought is that it seems like a correct analysis. You can't search a whole house incident to arrest, just anything in the defendant's immediate reach. So you shouldn't be able to search a car when the defendant can't reach any of it. But just on a practical basis, this is going to have a big impact, because it's an exception the police use a LOT.
4.21.2009 12:02pm
CMH:

In this particular case, the car was in the suspect's driveway at the time he was arrested. I don't know if the police would have really had any justification to tow it.


Good point, I missed that from my first pass through the opinion.
4.21.2009 12:09pm
Lior:
Oren: Scalia, I think, remarks that it should be both the offence for which the person was arrested and any offence that he can be reasonably suspected to have committed.
4.21.2009 12:21pm
Anderson (mail):
They are the five who favor bright line rules, while the other four are more wishy-washy and like balancing tests and the like.

Presumably, Justice Kerr would agree with that preference, at least.
4.21.2009 12:25pm
EconGrad:
Gives credence to the advice to always exit your vehicle with your drivers license and registration when pulled over, and lock the door behind you. Vehicle no longer accessible and now not subject to search, even incident to arrest.

Officer may order you back into the vehicle for his safety, but if you live in a free state where such things are allowed, a nice reply would be "there's a loaded firearm in the vehicle - I figured you'd be happier with me out here and it in there". :)
4.21.2009 12:29pm
JRL:
Of course the police can impound the car and do an inventory search later. They just need to have a policy that allows impoundment. Then the inventory search is okay. That is what we have been doing in Arizona ever since our courts decided this case. Look for police departments around the country to change their policies to allow more impoundments of cars after arrests. Although I admit, an impoundment in this case would have been very hard to defend. But with most arrests, on the side of the road or in parking lots, the police will be able to explain why impoundment was a good idea.
4.21.2009 12:31pm
whit:

I guess my question is... why won't cops just search the car before they take the arrestee out?


because that would be dumb from an officer safety standpoint. i'm certainly not going to do it. ever.

if they want to eliminate search incident for MV's, more power to them. i get paid by the hour, not by how much evidence i get.
4.21.2009 12:43pm
Kenvee:
Incidentally, my brain is clearly not firing on all cylinders, since I mentioned an investigative search when the opinion is about searches incident to arrest. Please ignore. :)
4.21.2009 12:45pm
Angus:
2)"that evidence of the offense for which he was arrested might have been found therein."

As a non-lawyer, even this exception boggles me. Why can police say, "Oh, there might be some evidence in this car. Let's search it without a warrant to see!"?

Wouldn't the same justification hold true for homes? "Oh, there might be some evidence in this guy's home. Let's search it without a warrant to see!"

Why should a car be treated any different than a home, a safe deposit box, an office, etc.? To me, I'd favor this bright line: No warrant, no search. Period. If you are afraid someone else will drive away with some evidence in the car, have a couple of cops watch the vehicle while you get a warrant to search it.
4.21.2009 12:56pm
whit:

As a non-lawyer, even this exception boggles me. Why can police say, "Oh, there might be some evidence in this car. Let's search it without a warrant to see!"?


they can say it WITH the understanding that there already was probable cause to believe a crime in regards to that evidence had been committed AND they made the arrest. hence, search incident


Wouldn't the same justification hold true for homes? "Oh, there might be some evidence in this guy's home. Let's search it without a warrant to see!"

Why should a car be treated any different than a home, a safe deposit box, an office, etc.?


in the case of a home, a warrant is required (sans exigency) because a home (the contents) has a HIGHER expectation of privacy than a car. the former is recognized as "your castle", and from a common sense standpoint, most of us think of our home as much more private than our car. furthermore, a car is mobile etc. and a home isn't. iirc, this came from (among other places) the carol doctrine.


To me, I'd favor this bright line: No warrant, no search. Period. If you are afraid someone else will drive away with some evidence in the car, have a couple of cops watch the vehicle while you get a warrant to search it.



you can favor whatever you want. the constitution doesn't REQUIRE warrants for all searches. read it. it requires they be reasonable.
4.21.2009 1:06pm
GA Onlooker:
Brief note on this inventory search question, which will surely develop as a result of Gant: South Dakota v Opperman repeatedly stresses the community caretaking function of the search, i.e., protection of impounded property. In that case, the vehicle was impounded for repeated parking violations. Were every department to now have an 'impound and search all cars policy', the following line from the conclusion of Opperman might come into play:

As in Cady, there is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.
4.21.2009 1:47pm
Oren:

if they want to eliminate search incident for MV's, more power to them. i get paid by the hour, not by how much evidence i get.

You aren't salaried?!
4.21.2009 2:08pm
hattio1:
Oren, quoting whit, asks;

if they want to eliminate search incident for MV's, more power to them. i get paid by the hour, not by how much evidence i get.


You aren't salaried?!

Of course not. If you salary the police officers, they have no incentive to conduct illegal arrests that then earn them overtime when they go into court to testify regarding what laws they broke.
4.21.2009 2:37pm
whit:
golf clap for hattio!

no police agency i have ever heard of is salaried (in the respect that there is overtime paid for hours worked - we are not salaried).

in many agencies, certain ranks ARE salaried, like captain and above.

of course captains aren't expected to do any actual POLICE work anyway.
4.21.2009 5:46pm
Oren:
Thanks for clarifying. I thought rank-and-file were salaried for their normal duty and then paid overtime past that.
4.21.2009 7:30pm
Linus (mail):
The impound question is interesting, but the requirement that it be subject to arrest is more interesting. Stopping someone for a broken taillight is not going to result in an arrest, since it's just an infraction, and it seems that short of getting consent to search, the police are going to have to come up with more severe "charges" if they want to search a vehicle.

Another thing I don't understand is how someone could be "arrested" as that is commonly understood and yet still be within reaching distance of the passenger compartment. Is that only for situations where the suspect is arrested AFTER the search? As whit pointed out, wouldn't this increase the risk to the officer? "Please, just sit there with your hands on the wheel while I look through your backseat." Who's going to do that?
4.21.2009 7:45pm
einhverfr (mail) (www):
Oren:

Re-read Hamdi v. Rumsfeld....

4 Justices (O'Connor, Rhenquist, Kennedy, Breyer) delivering the opinion of the court.
2 Justices (Souter, Ginsberg), delivering a concurring opinion where they state they agree with a different dissent (Scalia/Stevens) but join the opinion of the court anyway.
2 Justices (Scalia/Stevens!) dissenting, stating that the court didn't go far enough in protecting due process rights.
1 Justice (Thomas) dissenting (and disagreeing with everyone else), arguing that detention of Hamdi for the duration of hostilities and without further process would be Constitutional.
4.21.2009 7:59pm
einhverfr (mail) (www):
Usually, though, when Stevens and Scalia agree in a close decision, it is an interesting case and worth reading.
4.21.2009 8:00pm
einhverfr (mail) (www):
Linus:

I see a bigger issue:

If the search occurs prior to the arrest, you don't know whether the arrest caused the search or vice versa. So IMO, the 4th Amendment would require a search incident to arrest to occur after the arrest.

It would also seem to strike the officer safety issue except in unusual circumstances, but would allow for such searches if the offence was of a certain type where evidence would most likely be found in the vehicle (DUI, etc).
4.21.2009 8:11pm
Profane (mail) (www):

Stopping someone for a broken taillight is not going to result in an arrest, since it's just an infraction, and it seems that short of getting consent to search, the police are going to have to come up with more severe "charges" if they want to search a vehicle.


That seems to be what it boils down to - it severely curtails the possibility of a LEO executing a licit fishing expedition.

Repeat after me everyone:

"I do not consent to a search."
4.21.2009 8:16pm
einhverfr (mail) (www):
whit:

I wonder if Carrol should be revisited. After all it was decided three years before any radio communications were available for police officers. Now we have a great many more tools to help facilitate getting warrants without necessarily having to leave the car unsecured (the rationale behind Carrol).

It seems to me that revoking the motor vehicle exception, absent unusual circumstances would not require repealing Carrol but simply reading into it the idea that warrants are good, and that the circumstances applicable to Carrol are no longer commonplace.
4.21.2009 8:16pm
whit:
ein, that SOUNDS reasonable to me.
4.21.2009 8:38pm
Oren:

Stopping someone for a broken taillight is not going to result in an arrest, since it's just an infraction, and it seems that short of getting consent to search, the police are going to have to come up with more severe "charges" if they want to search a vehicle.


Sorry, I really wish you were correct but not so much.
4.21.2009 8:44pm
Daniel Chapman (mail):
Does this mean the Supreme Court has abandoned the idea that every arrestee should be treated as though he has the "strength of hercules and the skill of houdini?"

Past SIA doctrine has always assumed that officers were allowed to assume that a captive might escape when searching for possible weapons for their own safety.

That seems to be the biggest change here.
4.21.2009 8:55pm
Profane (mail) (www):

Sorry, I really wish you were correct but not so much.


Well, at least your car cannot be searched now as a result of a seatbelt violation!
4.21.2009 9:00pm
Oren:

Well, at least your car cannot be searched now as a result of a seatbelt violation!

Sure it can, just pull the motorist over on the road for a sb violation (ala Atwater v. CoLV). Arrest the driver. Oops, now the car is parked in the middle of the road and needs to be towed -- presto inventory search exception!
4.21.2009 9:34pm
Linus (mail):
Interesting, Oren. The case you cited, the woman was charged with a misdemeanor under Texas law. In Idaho at least, there are felonies, misdemeanors, and infractions, and you can't be arrested for an infraction, because it's a civil offense. You can only be arrested for a misdemeanor if it takes place in the officer's presence (which would rule out an arrest for a misdemeanor charge of DWP, unless an arrest warrant was issued). See Idaho Code 19-603.

So, infractions like speeding, failure to wear a seatbelt, etc., can't result in your arrest. Also, interestingly, the failure to wear a seatbelt cannot alone be cause for stopping a driver. See Idaho Code 49-673.
4.22.2009 12:10am
einhverfr (mail) (www):
Linus:

That case existed in Texas, and turned on the fact that Texas provides broad authority to officers to arrest folks for misdemeanors. Idaho law is irrelevant.

You CAN be arrested for a sb violation in Texas, but not in Idaho, I guess.
4.22.2009 1:31am
whit:

You can only be arrested for a misdemeanor if it takes place in the officer's presence (


i would bet dollars to doughnuts that SOME misdemeanors not in your presence are arrestable.

DV crimes for instance?

i don't know idaho law, but unless they make DV a felony, there would be no way to arrest on PC for a DV assault.

and lord knows that aint the case.
4.22.2009 1:40am
Linus (mail):
You're right, whit, DV and some related offenses are exceptions listed in the statute.

And you're right,einhverfr, Idaho law is irrelevant to that Texas case cited by Oren. But since he cited it in response to my initial statement, isn't it more correct that his case is irrelevant to MY statement? First in time, first in right? :)

Sometimes I wish I could put a little :) in a legal brief without the judge thinking I'm a total nincompoop. Not likely.
4.22.2009 1:51am
einhverfr (mail) (www):
Linus,

I suppose. Perhaps it would have been better to clarify that "you can be arrested for a seatbelt violation if your state's laws say you can."
4.22.2009 10:38am
Oren:
Linus, don't be so sure. You can be arrested for a seatbelt violation in violation of ID law and then be screwed for a remedy, since you don't get S1983 or federal suppression (you might get State suppression, though).
4.22.2009 12:11pm
t3hd0n (mail):
This doesn't surprise me. Where I live in VT it was found against the states constitution to search a car without a warrant.
4.22.2009 1:14pm

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