pageok
pageok
pageok
The Holding of Gant, and Some Initial Questions as To Its Application::
I'm really interested in what the new Fourth Amendment rule of Arizona v. Gant really means, and how it will apply in practice. Here's the version of the holding on page 10:
We hold 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. . . . [w]e 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.
Here's the conclusion on Page 11, applying this standard to the facts:
Because police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable.
Here's Page 18, restating the standard:
Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.
Do you read the rule as just referring to "reaching distance", or as also requiring that the arrestee is "unsecured"? Or does unsecured mean handcuffed or put in a locked squad car, and do we assume that once a person is handcuffed they no longer have any reaching distance at all? If that's right, does that mean that as soon as a person is handcuffed, the police cannot conduct a search under Belton? What is a reaching distance -- is that a physical concept of distance, sort like the grabbable area test for search incident to arrest for a person, or is it measured by reference to whether a person could have grab a gun in the car?
GA Onlooker:
Footnote 4 seems to provide a real caution about playing games with this "within reach" issue:

4Because officers have many means of ensuring the safe arrest ofvehicle occupants, it will be the rare case in which an officer is unableto fully effectuate an arrest so that a real possibility of access to thearrestee's vehicle remains.
4.21.2009 11:26am
George Weiss (mail) (www):
seems like kind of an invitation to officers to order someone who they will arrest outside the car and not cuff him until after the search.

or even to tell a potential arrestee to walk over near his car, then search the cab of the car, then arrest him.
4.21.2009 11:29am
Soronel Haetir (mail):
Also, the note about no cases being brought forward where a secured arrestee gained access to a weapon from their own vehicle would seem to indicate that securing removes the possibility of SIA, so long as the crime of arrest does not itself permit the search.
4.21.2009 11:30am
Rodger Lodger (mail):
And what about those weird lower court decisions that people arrested in general can be "incidentally searched" to an area within arms distance -- if they could extend their arms and were not actually handcuffed! A colleage lost in the Second Circuit as to a search under a mattress the arrestee was lying on -- handcuffed!
4.21.2009 11:34am
Tim H. (mail):
I think there are two cases in which the officer can search the vehicle incident to an arrest:

1. The reaching distance thing
2. when it's reasonable to believe that evidence pertaining to the arrest is therein.

Since this guy was only pulled over for driving on an out of state license, there was no reasonable belief that evidence would be in the car....and because he was secured and in the car, there was no reaching distance rationale
4.21.2009 11:37am
geokstr:
IANAL, so can someone explain this in simple terms?

It looks to a non-lawyer that only evidence related to what the current arrest is for can even be considered. Since he was only arrested for license problems, if the arresting officer notices a large, fresh-looking red stain on the back seat and sees something that looks sort of like a human finger on the floor of the car, he still can't investigate this further without a warrant, since it has nothing to do with driving without a valid license?

Once the suspect is in custody and isn't going anywhere anyway, can the officer can then use these suspicious items to obtain a warrant to search the vehicle for things unrelated to the actual arrest, before the suspect is released? If so, I could understand this situation better.

If not, does that mean that a potential murderer could be prosecuted for license violations, serve time or not, and be sent on his merry way without any further investigation of his car, regardless of what it looks like?
4.21.2009 11:51am
Kenvee:
The inventory exception looks like it survives this decision, though. So as long as the guy is actually arrested instead of just under investigation, they'll be able to search the car before towing it.
4.21.2009 11:56am
GA Onlooker:
geokstr, the finger is in plain sight, no warrant needed. The presence of the finger will get you a warrant for the rest of the vehicle. The blood stain, coupled with some other evidence of a violent crime (e.g., description of this guy and his car leaving a scene) will get you a warrant.
4.21.2009 11:56am
Soronel Haetir (mail):
geokstr,

I would fully expect the plain view exception to apply in the situation you describe. Certainly that situation should be enough to get a warrant.

I would have much more trouble with an officer who claimed to see a finger on the floor and tried to search on that basis alone.
4.21.2009 11:57am
NaG (mail):
I think Tim H. is correct. You can secure the driver and the occupants in handcuffs in the police car, and still search the car for evidence related to the charge that caused the arrests in the first place. So if a cop pulls someone over for erratic driving, then smells marijuana when talking to the driver, the officer can arrest everyone, secure them, and search the car for drugs. If you are arresting a speeder for driving on a revoked license, however, the cop won't be able to the search the car for drugs after the driver is secured.

Also, if you are arresting the driver, you can search the car for whatever you'd like so long as the driver is not handcuffed and is able to reach the inside compartment of the car. Theoretically, this is for the safety of the officers. However, the officers already know how to protect themselves: handcuff the miscreant, put them in the squad car, and be done with it.

My question is, how does this case apply to the following circumstance: Driver is pulled over for erratic driving. There is a person in the passenger seat. The officer determines, from talking to the driver, that the driver is likely drunk, and smells alcohol on their breath. The driver refuses to take a breathalyzer test, but gets out of the car and promptly fails a sobriety test. The officer arrests the driver, handcuffs the driver and stuffs him/her in the squad car. However, there is no indication that the passenger is drunk, or has done anything wrong whatsoever. The passenger is not arrested, and is within reaching distance of the inside compartment of the car. Can the officer now search the car for evidence of alcohol? Can the officer search for anything at all? Do these answers change if the passenger makes threatening comments to the officer for arresting the driver? If the passenger violates the law in a potentially violent manner (say, by spitting at the officer, resulting in assault), could the officer then search the car for guns to protect himself? Before or after arresting the passenger?

I am a lawyer, but I don't do criminal law, so maybe there is some obvious caselaw that answers this stuff already.
4.21.2009 12:02pm
Skyler (mail) (www):
I agree with Scalia that this decision leaves much room for mischief by the police.

The court seems reluctant to actually come to decisions that end debate. Just like in DC v. Heller where they could easily have incorporated and defined the level of scrutiny, they decined and leave everything in limbo.

Now they are setting up for more and more litigation to decipher what the heck they really mean to be a practical law. This decision is in the right direction, but now police will most certainly leave people unsecured for the purpose of searching their cars. The way it reads now, if they pull you over for not using a turn signal, if they don't arrest you, for it they can rummage through your car at will because you can still reach into your car. It's a very awkward and unworkable decision.

Scalia is the only one who is standing up to out of control cops this time. How strange.
4.21.2009 12:05pm
one of many:
geokstr,

searching is not the same as noticing what is in plain sight. What exactly constitutes "plain sight" in an automobile can be pretty expansive but does not cover the completely hidden contents of a pocket in a jacket. And yes, what can b noticed in plain sight can be used to obtain a warrant or to justify a warrantless search in many cases which would probably cover you hypothetical. Officers are not required to close their eyes and ignore evidence of crimes before them incident to arrest and work from there they are merely prevented from using the excuse of an arrest to ferret out evidence.
4.21.2009 12:06pm
martinned (mail) (www):
Am I the only one who thinks all this is a bit silly from a policy point of view? If the police pull over a car and arrest the driver, why do they need a warrant to search the car? It's a car, not a home...
4.21.2009 12:09pm
GA Onlooker:
NaG, they differentiate Belton, which involved a driver and several other occupants. I think if you're not going to arrest the passenger, you can still search the interior for office safety, IF you have a reasonable belief that the passenger is dangerous. Keep in mind J.L. v. Florida. Among other things: armed and dangerous are two separate things. In many if not most states, the mere presence of a gun is not in and of itself evidence of a crime, or of danger to the officer. In practical terms though, the police are often let slide in this regard. "Furtive movements" and all.
4.21.2009 12:14pm
Bretzky (mail):
I find it difficult to believe that a police officer would be willing to play games with his life merely for the possibility of seizing some evidence unrelated to the offense for which he is going to arrest someone. The decision may give the police room for mischief; but common sense tells you that they are very unlikely to take it.

It also seems to be a hollow holding to me if it leaves the inventory search as a viable option. I'm not an expert on police procedures, but what would keep the police from impounding the person's vehicle in a situation like this and then just performing an Opperman search on it? Are there due process limitations regarding the impounding of an arrestee's vehicle? If so, do they differ regarding what crime the person is arrested for? I would think that if you are driving without a license, then the police may have good reason to impound your car and then search it at the impound lot.
4.21.2009 12:24pm
zippypinhead:
The court held that a Belton vehicle search incident to arrest is resonable:
"only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search"
At first glance this seems to be a major erosion of the Belton rule as it was generally understood, at least with regard to single-occupant vehicles where the driver is taken into custody. However, I think as a practical matter this case isn't going to amount to much. The exigent circumstances doctrine still permits warrantless searches of vehicles on "reasonable belief" that evidence or contraband is in the vehicle. And post-arrest inventory searches are still valid. Or to put it a bit more crassly - there will need to be some officer retraining as to the timing and justification for a valid vehicle search, but it's going to be the rare case where a car that could have been searched before Gant can't be searched afterwards.
4.21.2009 12:29pm
AF:
I find it difficult to believe that a police officer would be willing to play games with his life merely for the possibility of seizing some evidence unrelated to the offense for which he is going to arrest someone. The decision may give the police room for mischief; but common sense tells you that they are very unlikely to take it.

I'm not sure an officer is necessarily playing games with his life by waiting to handcuff a suspect while he searches their car. The officer can pat the suspect down before performing the search.
4.21.2009 12:32pm
Skyler (mail) (www):
I don't know, but isn't there a difference between impounding a car and just calling tow truck to haul it off the road? Wouldn't impounding require that there be a reason to take it into custody as evidence?
4.21.2009 12:32pm
Skyler (mail) (www):
I agree with AF. Police can reasonably assure themselves the two other cops can watch his back while the detainee is uncuffed, and take advantage of this mile wide loophole to search everything that they allow to be within reach.

And I don't think that it would take much to motivate them to do it, either.
4.21.2009 12:35pm
whit:
if i am reading the interpretations correctly here, this would effectively end search incident of cars in WA state, since our state rulings have required an arrest PRIOR to search incident, iow handcuffing etc.

it's actually "search after" not "search incident" in our state, even though we call it search "incident". in other jurisdictions, incident means "contemporaneous"

personally, i don't care. eliminating search incident of MV's just means less evidence seized and less paperwork :)

we didn't have search incident of MV's in hawaii when i worked there.
4.21.2009 12:38pm
Bretzky (mail):
martinned:


Am I the only one who thinks all this is a bit silly from a policy point of view? If the police pull over a car and arrest the driver, why do they need a warrant to search the car? It's a car, not a home...

I believe the Court would say that it still comes down to probable cause. As the Court is fond of stating, the Fourth Amendment protects people, not places. The automoble warrant exceptions relate to the mobility of the vehicle and to the reduced expectations of privacy that people have while in them, but the Court has generally still required that the police have probable cause to search a vehicle.

The only probable cause exceptions that I know of are search incident to arrest (which the Court narrows with this decision) and inventory searches. But I'm not an expert, so there well may be more of them.
4.21.2009 12:39pm
Bretzky (mail):
Skyler:


I agree with AF. Police can reasonably assure themselves the two other cops can watch his back while the detainee is uncuffed, and take advantage of this mile wide loophole to search everything that they allow to be within reach.

But wouldn't you then consider that suspect to be secured? I certainly would.

What I am referring to is a situation in which you have one cop stopping someone for an arrestable offense and then searching the guy's car while he just lets the guy hang around outside the vehicle. To me, there is a world of difference between that scenario and the one where there are two other officers there watching the searching officer's back.
4.21.2009 12:44pm
Mike& (mail):
I agree with Scalia that this decision leaves much room for mischief by the police.

So the Court should limit individual rights because, if they don't, police will find creative ways to violate those rights?

I'm not sure what's persuasive about Scalia's point.
4.21.2009 12:44pm
lesser ajax:
It seems to me that the holding incorporates solely the "reaching distance" test, but that the Court is indicating for future reference that a secured person necessarily has a reaching distance of zero.
4.21.2009 12:45pm
Mackenzie (mail) (www):
Let's get on the same page and clarify a few things. First, note that the inventory search has to be performed according to a generally applicable policy. I doubt that any policy would include performing an inventory search at the scene, but it's possible. It is far more likely, though, that the vehicle is impounded, then searched at the impound location.

Second, keep in mind that plain view applies to seizure, not searches. The officer still has to have a right to access the area that the evidence is found in. An officer can't enter a house and seize a marijuana plant just because the officer walks by and sees it in the window (although that would certainly be probable cause for a warrant, and if the officer is seen there may be exigencies, etc.).

geokstr's little scenario doesn't involve plain view. Really, you just have an officer who observes something (it's not a search because there's no reasonable expectation of privacy) that provides probable cause for a warrantless search under the vehicle exception (and it's probable cause that is required, not reasonable belief). To more directly address geokstr's question, Gant involves only one exception to the warrant requirement, but there are others that might apply, and in your scenario, they do.
4.21.2009 12:47pm
hattio1:
Martinned says;


Am I the only one who thinks all this is a bit silly from a policy point of view? If the police pull over a car and arrest the driver, why do they need a warrant to search the car? It's a car, not a home...


Because in America we have a right to be free from unreasonable searches and seizures. Period end of story (in theory). Not just in our homes. I will say Martinned, I'm rather surprised to hear you say that knowing that you generally come down on the liberal side of most questions. I guess it just underlines that what's right and left here in the US is not necessarily right and left on the other side of the pond.
4.21.2009 12:50pm
hawkins:

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


Im confused. Why does it matter whether he is in reaching distance of the vehicle at the time the vehicle is searched? Wouldnt they be concerned with where he was prior to when the vehicle is searched?
4.21.2009 12:54pm
CDU (mail) (www):

Wouldnt they be concerned with where he was prior to when the vehicle is searched?

The justification for the search is the safety of the arresting officer. If the suspect isn't currently within reach of the area to be searched, there's no danger to the officer.
4.21.2009 12:56pm
hawkins:

The justification for the search is the safety of the arresting officer.


Thanks. I assumed the justification was to discover evidence.
4.21.2009 12:58pm
hawkins:
Which isnt the point of a SITA anyway
4.21.2009 12:59pm
Bretzky (mail):
hawkins:


Im confused. Why does it matter whether he is in reaching distance of the vehicle at the time the vehicle is searched? Wouldnt they be concerned with where he was prior to when the vehicle is searched?

The justification that the Supreme Court has given for warrantless searches of a person incident to his arrest is the arrestee may have on his person or within his reach (1) a weapon that he can use to injure the police, himself, or bystanders or (2) destructible evidence that may relate to the crime for which he is being arrested. The arrestee's reaching distance matters to this exception, because if an arrestee cannot reach the weapon or evidence, then the justification for the exception is not being fulfilled by the warrantless search. And the argument can then be made that such a search is unreasonable.
4.21.2009 1:04pm
Mackenzie (mail) (www):
Hawkins brings up an interesting point about the point in time that we measure the correct scope of the search. Before, it was usually where the defendant was at the time of the arrest. Gant seems to change that to looking at where the defendant is at the time of the search. It appears to be a significant change that gets no comment from the Court. Has anyone else noted that, or am I reading too much into it?
4.21.2009 1:06pm
David M. Nieporent (www):
Am I the only one who thinks all this is a bit silly from a policy point of view? If the police pull over a car and arrest the driver, why do they need a warrant to search the car? It's a car, not a home...
I don't see the relevance. It's still private. People still keep personal items in there. Why would police get to search it without cause?
4.21.2009 1:09pm
lesser ajax:
How retroactive is this decision? Does it apply to prosecutions in which the search predates the date of the opinion but in which no final judgment has been reached prior to the date of the opinion? If it does, and given the apparently widespread practice of automatically searching the vehicles of arrestees, how many defendants just got a get our of jail free card?

I'm inclined to think that the number is small (since there are many other justifications for a warrantless search of a vehicle that would be an adequate independent basis of the search or for an inevitable discovery claim), but my confidence in that assessment is low.
4.21.2009 1:11pm
one of many:
Am I the only one who thinks all this is a bit silly from a policy point of view? If the police pull over a car and arrest the driver, why do they need a warrant to search the car? It's a car, not a home.

Indeed, if the 4th amendment were to use more expansive language than just the home, something like " persons, houses, papers, and effects" the 4th amendment might cover searches of automobiles. Oh wait..., while the 4th amendment protection from search is analogous to and derived from good old "domus sua cuique est tutissimum refugium" it is a bit different from English Common Law in what it covers and has evolved quite differently than ECL in the past few centuries. There are reasonable policy arguments to made about extending privacy protection outside the home but while the British can go back all the way to the home as final refuge, the US can only go back to the 4th amendment.
4.21.2009 1:11pm
Skyler (mail) (www):
Mike&,

Did you read Scalia's concurrence? He was in favor of upholding individual rights and the 4th Amendment and said the four other justices did not go far enough to protect people from improper seizures.

Or did you just knee jerk what you though Scalia said?
4.21.2009 1:22pm
Mark Jones (mail):

The automoble warrant exceptions relate to the mobility of the vehicle and to the reduced expectations of privacy that people have while in them


The argument for reduced expectation of privacy in automobiles just slays me. Yes, it's easier to look inside an automobile than most homes. But other than that, it's a nifty little Catch-22. The police have more leeway to search your car because you have reduced expectation of privacy, which you have...because the police have more leeway to search your vehicle.

And then the wheels of the legal system (I wouldn't call it justice) inexorably expand that exception. It's very convenient for the government.
4.21.2009 1:24pm
Jon Roland (mail) (www):
This could have a significant impact on current cases. For example, one recently came to my attention in which the driver was arrested for "reckless driving" for trying to catch up to another driver who had just sideswiped him without stopping, so he could read the license place and get a good look at the driver for identification. That other driver was not arrested. The arrest took place in a different county than that in which both vehicles were at the time of impact. The trooper made a custodial arrest, impounded the vehicle, and seized a number of weapons secured in the trunk. They provided no inventory receipt and so far have not even filed a charge or set a court date. They refuse to respond to demands to return the items seized, although the vehicle has been recovered from impound. Seems like a good case for application of this Gant decision.
4.21.2009 1:28pm
Avatar (mail):
I'd say that you have reduced expectations of privacy in your car because the majority of the passenger compartment is in full view from the outside (and indeed, is difficult to obscure without making the car unable to be used as a motor vehicle!)

What's the big difference in this opinion? It reduces the amount of casual searches that police can perform on cars. A police officer can't ask a person to leave their vehicle, declare them "arrested", search the vehicle "incident to that arrest", find nothing, and say "it's okay, you can go". They can say "you're under arrest" while the person is still in their car (but if it's an actual perp, said perp is likely to take off, so this is terrible police procedure). They can arrest the person and have the car searched by the guys at the impound lot, if they've got a valid reason to arrest (but this produces a ton of paperwork).

Basically, it forces a cop wanting to perform a search on thin evidence to double down, as it were.
4.21.2009 1:42pm
DennisN (mail):
@Mackenzie


Hawkins brings up an interesting point about the point in time that we measure the correct scope of the search. Before, it was usually where the defendant was at the time of the arrest. Gant seems to change that to looking at where the defendant is at the time of the search. It appears to be a significant change that gets no comment from the Court. Has anyone else noted that, or am I reading too much into it?


Looking at it from the Officer's POV, what matters is the location of the prisoner in relation to the hazard and his ability to exploit that hazard. This is why prisoners are restrained and moved to a secure location. Secure, in this case, being some place where the prisoner cannot interfere with or endanger the officers.

If a prisoner is handcuffed and stuffed in a cruiser, it doesn't much matter, for officer safety, whether there was a loaded machinegun under the seat at the time of his arrest. That machinegun is no longer a threat, and normal search and siezure law applies.

If the prisoner is stood with his hands on the roof, with access to the open passenger door, the Officer has a right and arguably a duty, to search the driver's compartment to preclude there being a weapon there, but he can't search the trunk.

If the prisoner is handcuffed and sat in the back seat, leaving aside the "why would anyone do this" question, the officer has a right to search the seat, if nothing else for a handcuff key, but not the front seat. If the prisoner was seated in the back without handcuffs, possibly the front seat would be searchable for weapons.

All of this sounds a bit artificial. Why would I not lean the prisoner on the hood of my cruiser? or handcuff him? I think Footnote 4 is intended to be a shot across the bow of officers attempting to artificially place the prisoner in a position that demands he be searched. It really makes the decision a very narrow one, practically.

"Yeah, you have this right, but there is no practical way for you to use it."
4.21.2009 1:42pm
Skyler (mail) (www):
Dennis, you seem to be reading this opposite from me. It is not granting a new right to the police. It is taking away their power to search everything and anything at will.

Sadly, as Scalia notes, it doesn't go far enough to protect people from the police, but it still helps.
4.21.2009 1:48pm
Tim H. (mail):
whit:

no...search is still ok if there is a reasonable belief that evidence relating to the arrest will be found in the car...at least thats my reading
4.21.2009 1:51pm
martinned (mail) (www):

hattio1 said:

Because in America we have a right to be free from unreasonable searches and seizures. Period end of story (in theory). Not just in our homes. I will say Martinned, I'm rather surprised to hear you say that knowing that you generally come down on the liberal side of most questions. I guess it just underlines that what's right and left here in the US is not necessarily right and left on the other side of the pond.

Actually, I already figured out the answer to my own question. Over here, to take Dutch law as an example of the rest of continental Europe, you can only get arrested on suspicion of a felony that carries a maximum penalty of more than four years prison, or on suspicion of a relatively short list of other felonies. You certainly can't get arrested for running a stop sign, or a DUI. (Or for giving a cop the finger, for carrying an ounce of coke, etc.) So given a lawful arrest, searching the person's car seems reasonable, and is in fact allowed under Dutch law.

As for left-right, I assure you that in Europe, like in the US, the left is more likely to argue for the rights of the defendant. Then again, I actually vote a centre-right party, so I guess my remark here isn't very much out of character. To the extent that I have acquired the reputation of a lefty, that is due to the overall red-shift of US politics. (Over here, Obama would be a centre-right Christian Democrat, etc.)
4.21.2009 1:58pm
GA Onlooker:
I put this in the other thread, but it better belongs here.

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.


Should such a pretext develop through the widespread application of new "impound and search all vehicles" policies, the Supremes might not be amused.
4.21.2009 1:59pm
Bored Lawyer:
What I don't understand is the justification of the second prong -- they can search the automobile for evidence related to the offense which underlies the arrest. This in turn differentiates cases (like drug cases) where it is reasonable to believe that the car contains evidence of such a crime, with those where that is not a reasonable expectation, e.g. traffic violations (like Gant, which involved an arrest for driving with a suspended license)

But if the car is secured and the arrested person is secured, why should there be a right to search the car at all? Why not insist on a warrant?

It seems awfully artificial to say that when a person is stopped driving and arrested, his 4th amendment rights depend on what he was arrested for (drugs v. traffic violation).
4.21.2009 2:00pm
CDU (mail) (www):

To the extent that I have acquired the reputation of a lefty, that is due to the overall red-shift of US politics. (Over here, Obama would be a centre-right Christian Democrat, etc.)

Or from this side of the pond, the blue-shift of European politics.
4.21.2009 2:01pm
Bruce:
I haven't read the case but here's a hypo that occurs to me. Police stop a vehicle and secure all of the passengers. They decide to arrest the driver and let everyone else go. Now can they search the vehicle for weapons? Do they have to let everyone loose first before they do the search?

Actually, focusing on the wording of the test, I'm unclear how it's supposed to work in practice. Do the passengers have to remain unsecured within reaching distance during the entire search for the search to be lawful? If the police back them up to do the search, then it seems that in itself eliminates the justification for the search. This is starting to look like a flat-out prohibition on warrantless searches of vehicles except for evidence of the crime of arrest.
4.21.2009 2:09pm
Skyler (mail) (www):
Bruce this was essentially one of the objections Scalia appeared to make. The decision allows cops to game the rule this way. He thought they should have gone farther to protect individual rights.
4.21.2009 2:14pm
Michael Masinter (mail):
Scalia's concurrence argues for overruling Belton. The majority does not refuse to overrule Belton; it notes in footnote 9 that no party before the Court has asked it to overrule Belton. Perhaps, then, the answer to Professor Kerr's question is that, in any case in which an officer conducts a post handcuffing warrantless vehicle search that yields evidence of a crime other than the crime for which the defendant was arrested, and does so without probable cause to believe that crime had been committed, the defendant will be well advised to argue from the motion to suppress forward that Belton should be overruled. It will be a rare case in which an officer legitimately can claim that a handcuffed suspect still poses a danger requiring a vehicle search because of his reach.
4.21.2009 2:18pm
Bretzky (mail):
Bored Lawyer:


What I don't understand is the justification of the second prong -- they can search the automobile for evidence related to the offense which underlies the arrest. This in turn differentiates cases (like drug cases) where it is reasonable to believe that the car contains evidence of such a crime, with those where that is not a reasonable expectation, e.g. traffic violations (like Gant, which involved an arrest for driving with a suspended license)

But if the car is secured and the arrested person is secured, why should there be a right to search the car at all? Why not insist on a warrant?

The Court has based that exception on the mobility of the vehicle. If the police don't search the vehicle then and there, it may be driven away. The Court has said that it is very debatable as to whether searching the car then is really more intrusive than holding the car until a warrant can be obtained.

From what I've seen in a few other posts, the police cannot impound a person's car just because they've arrested the driver. It seems that they need some different justification for doing that and if they cannot search the vehicle on the spot, the driver may contact someone else to drive it away and do whatever they want with it. Although, the police can lawfully prevent a person from entering his home while they are waiting to get a search warrant, so who knows why a car is really all that different.
4.21.2009 2:18pm
Skyler (mail) (www):
The difference, Bretzky, if the premises are correct, is that they may not get a warrant to search a car that has been involved in nothing more than being driven by someone who is driving with a suspended license.
4.21.2009 2:30pm
DennisN (mail):
@ Skyler


Dennis, you seem to be reading this opposite from me. It is not granting a new right to the police. It is taking away their power to search everything and anything at will.


I'm arguing "right" from the proposition that, if you use words in your decision, someone will parse those to discover a new right. Everything you say will be used against you. ;-) That's what Footnote 4 was warning against.
4.21.2009 2:32pm
Bretzky (mail):
Skyler:

Yes, but I don't think that's what Bored Lawyer was getting at. The issue that I was addressing is: if the police have secured the vehicle, why do they not have to wait until a warrant has been issued to search it even if they have probable cause to do so.
4.21.2009 2:39pm
Marks fan:
I'm not sure what to make of the effect of Scalia's concurrence. He says that he would allow searches only for evidence related to the offense leading to arrest, and he criticizes the other prong of the Stevens standard on some of the grounds in the post and comments.

If Scalia labelled his opinion as concurring in judgment only, then it seems to me that his narrower rule would would apply under Marks, as he was a 5th vote.

But his opinion, despite its content, is labelled as a plain concurrence, and the Stevens opinion is labelled as "of the Court."

So my questions, for anyone who knows, are:

1. Under Marks, do those labels trump the plain disagreement in the content of the opinions?

2. If so, why does a concurring Justice who disagrees on a key part of the holding -- as opposed to adding some "bonus" points on top of agreeing with the main opinion -- self-label as concurring in opinion rather than only in judgment?
4.21.2009 2:51pm
martinned (mail) (www):
@Marks fan: I'm not sure if an opinion that involves overruling an earlier SCOTUS precedent counts as "narrow" in any sense of the word. More importantly, though, is that Scalia concludes by saying that he "join[s] the opinion of the Court". So everything he said in the rest of his opinion is essentially dicta, insofar as his conclusion is concerned. (= his conclusion is not based on those arguments, but on the SCOTUS politics he discusses in the last paragraph of his opinion.) The reason why he did it this way, as he explains in his opinion, is to avoid the legal uncertainty that would follow a 4-1-4 ruling.
4.21.2009 2:57pm
Marks fan:
Oh, my mistake. Thanks, Martinned. I just saw on the other thread, and in the opinion itself, his line about preferring certainty to a 4-1-4.

On the separate and fascinating question of what constitutes the "narrowest" grounds under Marks, I recommend Judge Boggs's dissent in Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002). He questions whether Justice Powell's Bakke concurrence was truly narrower than Justice Brennan's plurality. Interesting stuff.
4.21.2009 3:25pm
Matt Orso (mail):
I'm curious how the Gant holding affects lower courts that have applied Belton to non-auto contexts. For examples of these types of cases, see United States v. Tavolacci, 704 F.Supp. 246, 252--53 (D.D.C. 1988) (citing cases applying Belton to non-automotive factual scenarios).

It seems that if you limit Belton searches to those conducted when either (1) an arrestee is unsecured and within reaching distance of a car, or (2) the search is for evidence related to the crime of arrest, then you must also limit non-automotive searches incident to arrest that Belton once justified. This means that once an arrestee is secured, no longer should law enforcement be able to search a container simply because it was within a suspect's grab area when the arrest was initiated. It doesn't look to upset searches of containers found on the person, like the cigarette box in United States v. Robinson. But I do think it applies to a case like the one I cite at the end of this sentence, where a pouch had been moved beyond the arrestee's reach before it was searched, and the court upheld it as a search incident to arrest, citing Belton. See United States v. Brown, 671 F.2d 585 (D.C.Cir.1982) (per curiam) (search valid as long as limited to "containers in hand or within reach when the arrest occurs" (emphasis added)).
4.21.2009 3:29pm
ShelbyC:

Just like in DC v. Heller where they could easily have incorporated...


How could they have done that? The issue wasn't before the court.
4.21.2009 3:33pm
Kenvee:
Skyler:

The difference, Bretzky, if the premises are correct, is that they may not get a warrant to search a car that has been involved in nothing more than being driven by someone who is driving with a suspended license.


No, that's not it at all. Gant only applies to warrantless searches. The police can still get a warrant any time they like, as long as they have probable cause to believe that evidence of a crime is in the place they seek to search. If they arrest someone for traffic tickets but have PC to believe that he's the Roadside Strangler and has a body in his trunk, they can get a warrant to search it, no matter what he was arrested for. Gant deals with one of the exceptions to the warrant requirement, namely a search incident to arrest.
4.21.2009 4:08pm
Mackenzie (mail) (www):
@Matt Orso:

That's what I was trying to get at when I suggested that the relevant time in the analysis is significantly shifted--I don't think it's limited to car search cases. I always read Belton to simply define the scope of a Chimel search incident to arrest within the context of an automobile. I think the Court's shift in Gant to evaluating the search as of the time it is conducted necessarily also shifts the time for any search incident to arrest, whether or not a car is involved.

I'm not sure what practical effect it will have, but it seems like a theoretically significant change.
4.21.2009 4:12pm
Mackenzie (mail) (www):
@Kenvee:

It goes even further--if you have probable cause, you don't need a warrant under the vehicle exception. The search incident to arrest exception only really applies where there is no probable cause.
4.21.2009 4:14pm
Matt Orso (mail):
Mackenzie:

I fully agree with your take that the change is theoretically quite significant. If lower courts read it as you and I do, then this shift in the relevant time should apply across the board to all search-incident-to-arrest cases, and the practical effects would be large.

However, courts could pretty easily confine Gant to the automotive context if they desire, at least until the Supreme Court more explicitly states that it applies to all SIA scenarios. I see lower courts reaching divergent conclusions while sorting it out.
4.21.2009 4:27pm
whit:

It goes even further--if you have probable cause, you don't need a warrant under the vehicle exception.


federally, yes. many states (including those i've worked) do not have a vehicle exception. iow, you need an actual SEARCH INCIDENT *to* arrest to search a car.

in hawaii, you couldn't even search a car INCIDENT to arrest.
4.21.2009 5:48pm
EconGrad:
[Partially repeated from my comments in the other post.]

Note to self, when stopped by the police:

1. Pull over in a parking lot - not on the side of the road. No reason to impound a car that isn't a hazard to anybody.

2. Exit vehicle with DL and registration in hand.

3. Lock doors, pocket keys.

When/if officer insists you get back in the vehicle (for his/her safety) advise them there is a loaded firearm in the vehicle and you figured he'd want you outside and it inside.

No justification to search or impound anything.

Of course you'll set off 1000 red flags in the cop's head and probably make the whole scene more "interesting" than it needed to be, but from a procedural standpoint it seems like a good plan (assuming your possession of a firearm within the interior of your private conveyance is lawful).
4.21.2009 5:57pm
zippypinhead:
Of course you'll set off 1000 red flags in the cop's head and probably make the whole scene more "interesting" than it needed to be, but from a procedural standpoint it seems like a good plan (assuming your possession of a firearm within the interior of your private conveyance is lawful).
Well, that's one guaranteed way to see what a Terry frisk is like up-close-and-personal. And if you're in a jurisdiction where police SOP is to run all encountered firearms, including those possessed by CCW permit holders, through a trace system, before Officer Friendly is done you're going to either open your car, or it's going to be opened for you the hard way. And you're going to be a LOT later getting home for dinner than you otherwise would have been.

Lesson One for Law Enforcement Encounters: Avoid setting off ANY "red flags," let alone 1000 of them...
4.21.2009 7:30pm
einhverfr (mail) (www):
Bretzky:

Yes, but I don't think that's what Bored Lawyer was getting at. The issue that I was addressing is: if the police have secured the vehicle, why do they not have to wait until a warrant has been issued to search it even if they have probable cause to do so.


I don't think 2-way radio was a big thing for police in 1925..... I don't even think any one-way police radio systems were installed prior to 1928. So the motor vehicle exception really predated reasonable communications allowing a police officer to secure a vehicle and still get a search warrant.

Arguably, radios, cell phones, and the like have made the motor vehicle exception obsolete. Getting a search warrant in these cases could be made fast enough to make this exception unreasonable.

I think it is time to address whether the motor vehicle exception is mandated by the technological constraints of 1798, or whether it is obsolete with the development of modern communication systems.....
4.21.2009 7:48pm
Disintelligentsia (mail):
The thing I find most interesting in the decision is not the decision but the split - definitely not your usual conservative v. liberal with Kennedy in the middle. Stevens and Thomas on the same side is pretty different.
4.21.2009 8:16pm
geokstr:

einhverfr:
Arguably, radios, cell phones, and the like have made the motor vehicle exception obsolete. Getting a search warrant in these cases could be made fast enough to make this exception unreasonable.

My vast experience with the actual process by which one gets and executes a search warrant is gleaned from "Law and Order". On the episode I recall, it had to be approved by a judge and then the officers had to have a piece of paper in hand signed by the judge before proceeding with the search. It had been confirmed by phone that the warrant had been approved and was on the way. But because the delivery of the warrant was a few minutes late, the detectives disabled the front door lock to keep the suspect from entering his own apartment until it arrived to prevent him from destroying the evidence. Because they prevented him from entering, all the damning and incontravertible evidence was deemed inadmissable. Is that realistic?

Can this all be done electronically now, i.e., by radio? Or do they still have to wait for the actual receipt of a hard copy of the search warrant?
4.21.2009 8:31pm
einhverfr (mail) (www):
geokstr:

Any reason why it would be particularly difficult to hook some sort of warrant application (and maybe even touchpad signature) into the computer systems which are in police cars?

Yes, you have to submit an affidavit. Yes, the affidavit needs to be signed. I don't see why one couldn't, say, fax it from the police officer's car.
4.21.2009 8:52pm
einhverfr (mail) (www):
(note, that would not necessarily require a paper original, and the faxed copy might need to be initialled when convenient, but I don't see that as a 4A issue, so much as a process control/CYA issue)
4.21.2009 8:54pm
Oren:
As I understand, electronic signatures are legal in the US, at least for Federal purposes.


Because they prevented him from entering, all the damning and incontravertible evidence was deemed inadmissable. Is that realistic?

Not even close. First, inevitable discovery.

Second, officers may prevent a suspect from entering his own house while they secure a warrant if they have PC to believe he will destroy evidence. Illinois v. McArthur is practically identical facts.
4.21.2009 9:26pm
Oren:


federally, yes. many states (including those i've worked) do not have a vehicle exception. iow, you need an actual SEARCH INCIDENT *to* arrest to search a car.

Does that matter since the evidence seized can be used in a Federal Court? I suppose your DA won't be happy about it, but would the USA in Seattle be all that upset if you send him a casefile with a little note "evidence inadmissable in WA but OK for you"? He might turn down the case if it's not big enough, but I can't imagine it's a huge deal . . .
4.21.2009 9:32pm
geokstr:
Thanks, Oren and Einhverfr, for the education.

I guess planning to take the bar exam after seeing all the "Law and Order" reruns wasn't such a good idea after all.

:-(
4.21.2009 9:35pm
t-boy (mail):
Favorite quote from the case:

When asked at the suppression hearing why the search was conducted, Officer Griffith responded: "Because the law says we can do it."

Not exactly probable cause. At least he was being honest though.

I think this decision shows that there is always some wiggle room around Stare decisis if the justices want it bad enough.
4.21.2009 9:57pm
whit:
geo et al...

there are a # of ways to get a warrant. we can do "telephonic warrants" but they are a pain since you have to tape record the entire conversation and jump through various hoops.

we have done those before, but the best way is to secure whatever scene you are at, drive to the judge's house (if the courts are closed), get the warrant signed, then return to the scene. obviously, this is impossible without sufficient personnel to both secure the scene to wait behind while you drive to the judge's house, get it signed and come back.

also, we have to, before we present to a judge, have a prosecutor review our warrant (or else the prosecutor's office gets all snippy).

this is not an easy process to do from the side of the road. even worse for a trooper who is in the middle of nowhere to take care of and his nearest backup is 1/2 hour away, etc.


the last "in the field warrant" iwas on worked thusly.

we went to a house where we had reliable information (signed statement) from a witness that johnny dirtbag was in the house. we had a warrant for his arrest. mom steadfastly refused to provide consent to search, and denied that he was inside the house, saying he had left . omg she LIED. imagine that.

we secured the scene, while one officer wrote up the warrant, drove to the judge's house, got it signed, drove back, and we served mom and made entry. son was hiding. we arrested son and charged mom with hindering prosecution.

writing and getting the warrant took maybe about 45 minutes.
4.21.2009 10:07pm
whit:

Does that matter since the evidence seized can be used in a Federal Court? I suppose your DA won't be happy about it, but would the USA in Seattle be all that upset if you send him a casefile with a little note "evidence inadmissable in WA but OK for you"? He might turn down the case if it's not big enough, but I can't imagine it's a huge deal


unless we are working on a federal task force, we are prohibited from searching under FEDERAL guidelines. iow, we'd be knowingly violating the law, and thus subject to dept. discipline. as WA peace officers, we operate under WA standards and rules of privacy.

but yes, if i found a bunch of guns, i could probably pass it off to BATFE or something.
4.21.2009 10:11pm
jccamp (mail):
einhverfr -

In reality, there is no such thing (in Florida) as a telephonic warrant. Typically, a supporting affidavit will need approval by some level of commanding officer, and then 2nd level approval by a prosecutor - who will never let the affidavit survive unchanged - before a judge ever sees it. Judges, often as not, will require other alterations, deletions, whatever before signing. Start to finish, a search warrant that gets signed in less than 6 or 8 hours - during business hours - is something just short of miraculous. After hours and weekends? Forget it. An affidavit with errors in spelling, grammar, and especially clarity will be re-written multiple times at each level before being signed. And the affiant generally needs to be someone with personal and first hand knowledge of the supporting facts (allegations?), because even one small misstatement by a proxy operating from 2nd hand knowledge imperils the validity of the warrant. So, that TV scenario when the detectives call some mysterious office person and command "get me a warrant for so-and-so location"...it never happens.

Oren -
On the other hand, and especially in the post 9-11 environment, local or state officers who are cross-designated as Federal law enforcement officers - typically sworn as deputy U S Marshals or ICE officers - are not uncommon. Such officers can simply switch hats, assume the persona of Federal officer, and obtain Federal service, make arrests for trial in District Court, etc. In whit's state though, it seems as though evidence legally seized pursuant to federal process would be barred from state court regardless, at least in the circumstances described. In Florida, the state constitution generally applies U S Constitutional standards for S &S, so one can switch back and forth between Federal seizure, and then state prosecution pretty easily.

And re: inventory searches generally, most departments have clear written policies that cover when an automobile should be or must be impounded or left in place. Any vehicle, whether impounded or left in place, is generally inventoried to protect the department from allegations later of missing property. So, in the instance of offering an arrestee the option of leaving the car in place, the driver/owner/custodian must consent to (and sign) an inventory and permission to leave the auto in place or the car gets impounded. The exception, of course, would be if the car is on private property - not the same as, say, a privately owned lot with public access. BTW, the inventory is done on the scene before the auto is moved from the presence of officer and owner/driver.
4.21.2009 11:14pm
whit:

In reality, there is no such thing (in Florida) as a telephonic warrant. Typically, a supporting affidavit will need approval by some level of commanding officer, and then 2nd level approval by a prosecutor - who will never let the affidavit survive unchanged - before a judge ever sees it. Judges, often as not, will require other alterations, deletions, whatever before signing. Start to finish, a search warrant that gets signed in less than 6 or 8 hours - during business hours - is something just short of miraculous. After hours and weekends? Forget it. An affidavit with errors in spelling, grammar, and especially clarity will be re-written multiple times at each level before being signed. And the affiant generally needs to be someone with personal and first hand knowledge of the supporting facts (allegations?), because even one small misstatement by a proxy operating from 2nd hand knowledge imperils the validity of the warrant. So, that TV scenario when the detectives call some mysterious office person and command "get me a warrant for so-and-so location"...it never happens.




florida is TOTALLY different than here.

i have written warrants in 15-30 minutes (easy ones). prosecutors rarely, if ever, correct my spelling or grammar. they are frigging lawyers for pete's sake. their english is no better than mine.

6 to 8 hours?

seriously?

florida is way different than here.

and the calling a person to get him to do a warrant? happens all the time here.

if officer johnson tells me " i saw X" i can put in the warrant "officer johnson told me he saw X"

that's perfectly acceptable.
4.21.2009 11:55pm
einhverfr (mail) (www):
IANAL, but I don't see a 4A issue with electronic signatures (though I would expect manual signatures to occur on copies later for reasons explained below) in obtaining a warrant. The main purpose of a warrant is to establish a paper trail as to why a search was considered reasonable. Having been an informer whose information resulted in at least one search warrant, the bar is fairly low in this state at least.

So I don't see a problem with Officer Johnson typing a warrant on a computer in his squad car, signing his hame on a touch pad, hitting a button to fax to a judge and then calling up to confirm and discuss.

I would expect notorized signatures to be added later stating that a statement of authenticity was taken, not for 4A reasons but simply because you want to protect against "No, I didn't ask for that warrant" coming out at trial time.....

We have all kinds of quick access to judges when civil rights are to be restricted. For example, kid comes into the ER and needs a blood transfusion, and the parents state the family are Jehova's Witnesses, the doctor can call a judge and get an order to perform the operation quickly over the telephone.

It seems to me that similar approaches to getting vehicle search warrants would make a lot of sense. Obviously these were not issues in Carrol because none of these technologies were deployed in a way as to be useful. Even if we accept there is a reduced expectation of privacy, the justification that one can't get a search warrant in a timely fashion without leaving the seen (as was the case in Carrol) strikes me as either a process issue or an exceptional case these days. Process issues can be corrected.
4.22.2009 12:20am
whit:

The main purpose of a warrant is to establish a paper trail as to why a search was considered reasonable


no. the MAIN purpose of a warrant is to get judicial review of an executive branch member's CLAIM of probable cause.

iow the search is validated by the judiciary.
4.22.2009 12:45am
Redlands (mail):

Scalia is the only one who is standing up to out of control cops this time. How strange.



1. Why strange?

2. The cops: All of them I guess?

3. This time: Justice Scalia has sided with out of control cops before? What case?
4.22.2009 12:47am
whit:
"out of control cops?"

so the cops , who in this case were following precedent, procedure, and validated past practice are "out of the control?"

oh, if only everybody were that "out of control"
4.22.2009 12:55am
einhverfr (mail) (www):
whit:



no. the MAIN purpose of a warrant is to get judicial review of an executive branch member's CLAIM of probable cause.

iow the search is validated by the judiciary.

Sorry, I meant the warrant application.

Without that establishment the judiciary can't review the claim.
4.22.2009 1:40am
TruePath (mail) (www):
Wow, I used to think I'd finally understood the precedents about searches conducted in a motor vehicle but this just seems to raise a whole host of questions.

1) Suppose the suspect/driver exits the vehicle as soon as it is pulled over. If the reason for the arrest provides no reason to believe further evidence will be found in the car are the police now no longer able to search the car? (assume a friend is waiting to drive it home).

2) If the answers to 1 is affirmative can the police officer order the likely subject of arrest to re-enter their car? What if the subject of arrest refuses to retrieve their license and registration on the grounds they value their privacy? If the constitution prevents states from passing laws granting police the right to search the car of an arrested driver would it not also bar them from imposing sanctions on drivers who refused to reenter the vehicle for fear of a search?

3) If police procedure specifies that the safest way to investigate a DUI or traffic altercation is to keep the subjects in their cars does this allow the police to bootstrap up to searching the car even if the individual being aressted leaves the vehicle first?

4) Can someone's sucpiscious behavior in trying to avoid a search of their car be used as probable cause for a search? So is the situation analagous to the drivers trying to avoid the fake drug checkpoints?

5) Does the officer's safety search allow them to inspect the personal possessions (coat pockets, backpacks) of other passengers in the car (I suspect prior precedent says yes). If so can an officer search my coat pockets when he arrests someone sitting next to me on the subway? If not what distinguishes these situations? Does my relationship to the arrested individual matter?

6) When officers are aressting the driver of a van may they search only locations the driver himself may reach or may they search anywhere another passenger might reach on the principle that the weapon could be passed to the driver? If officers can search anywhere within a passenger's reach what distinguishes my friend standing beside the car from the one sitting inside? If officers can only search within the driver's reach what justifies searching locations requiring passenger cooperation to access (passenger coat pockets).

——-

Ultimately this whole line of cases about cars strikes me as theoretically unsound. Cars may be mobile but so are taco stands. people and cardboard boxes the homeless live in why give cars special status?
4.22.2009 4:53am
Daniel Chapman (mail):
There's a competing privacy interest when we're talking about searching the pockets of a nearby bystander. Searching under a car seat is one thing, going through a (presumably) innocent person's pockets because he happened to be standing next to someone who got arrested is completely different.
4.22.2009 7:21am
whit:


truepath, way too many questions for me. and remember case law varies SIGNIFICANTLY state to state.

i'll address one:

4) Can someone's sucpiscious behavior in trying to avoid a search of their car be used as probable cause for a search? So is the situation analagous to the drivers trying to avoid the fake drug checkpoints?



somebody's suspicious behavior can ALWAYs be used to help establish probable cause. PC is a "totality of the circumstances" thang.

iow, given a person doing X, that might be unusual but not PC to get a warrant.

given a person doing X, y, and Z that may establish probable cause.

would a person jumping out of a car upon being stopped and locking the door ESTABLISH probable cause to search? no.

would it be *a* factor in establishing probable cause? yes

again, it's a totality thang.

cops frequently make this determination "do we have enough PC to do this search/apply for this warrant?"

sometimes (usually) they get it right. but not always.

also note that (imo) a mere traffic stop (which in my jurisdiction is significantly limited in scope compared to a terry stop) where somebody jumps out of the car and locks it could quite possibly on that basis alone be raised to a terry stop because of the suspicious behavior.

a terry stop does NOT mean PC. obviously. but (in my jurisdiction), it is a heightened scrutiny stop vs. a mere traffic infraction stop.

also, the search incident thang (at least in my jurisdiction - due to a recent case) is not necessarily thrown out merely because a person jumped from the car. we had a case like that recently, and the search incident was held up. otoh, the guy didn't lock the car. in my jurisdiction a LOCKED container always requires either a warrant or consent. a car, being locked, would presumably be a locked container.

all those facts aside, jumping out of the car upon being stopped is VERY stupid. it's the kind of crap that INSTANTLY raises officer suspicion, and can make stuff go badly. it's just frigging dumb.
4.22.2009 8:57am
Kenvee:
whit, it sounds like WA law is more similar to Texas in getting warrants. (FL sounds strange! 6-8 hours for a warrant?!) The police will sometimes have DAs review their warrant applications in big cases, to be absolutely sure they're not messing it up, but for an ordinary warrant, they just sign the affidavit, have it notarized (a fellow officer can notarize it), and take or fax it to the judge.

One of the new techniques in Texas is to get a warrant to draw blood if a DWI arrestee refuses to take a breath test. The usual procedure is to sign and notarize the affidavit at the station, fax it to the judge, and the judge faxes the signed warrant back. There is an unresolved issue now over whether judges could swear in an affiant over the phone for taking a search warrant application, instead of getting it notarized at the station, but otherwise there haven't been any serious challenges to that procedure.
4.22.2009 9:51am
einhverfr (mail) (www):
Kenvee:

I can't think of a good reason to challenge this procedure on 4A grounds. After all the only question it raises is how sure you are that Officer Johnson wrote the affidavit that is attributed to him. I would generally think that forgeries in these cases would be fairly obvious from the record of the case.
4.22.2009 10:25am
Oren:

unless we are working on a federal task force, we are prohibited from searching under FEDERAL guidelines. iow, we'd be knowingly violating the law, and thus subject to dept. discipline. as WA peace officers, we operate under WA standards and rules of privacy.

I know you are prohibited from doing it, but does WA have any strong remedies for WA officers breaking WA standards.

It's always seemed to me that S1983 functions as the strongest remedy for officers that go over the constitutional line, but alas it's only good if they go over the Federal constitutional line. . .
4.22.2009 12:14pm
Oren:


On the other hand, and especially in the post 9-11 environment, local or state officers who are cross-designated as Federal law enforcement officers - typically sworn as deputy U S Marshals or ICE officers - are not uncommon.

Dang, I got to get in on that -- instant 50-state-valid CCW!
4.22.2009 12:16pm
whit:

One of the new techniques in Texas is to get a warrant to draw blood if a DWI arrestee refuses to take a breath test. The usual procedure is to sign and notarize the affidavit at the station, fax it to the judge, and the judge faxes the signed warrant back. There is an unresolved issue now over whether judges could swear in an affiant over the phone for taking a search warrant application, instead of getting it notarized at the station, but otherwise there haven't been any serious challenges to that procedure


we had a traffic unit guy who was doing that a lot recently. there was an issue with the breathalyzer simulator (the state lab goofed) and thus breathalyzer results were inadmissible. so, every time he arrested a DUI he had to get a warrant for the person's blood.
4.22.2009 1:09pm
whit:

Dang, I got to get in on that -- instant 50-state-valid CCW!



you don't need to. any full time LEO who is authorized to carry in his state now has a 50 state valid CCW. recent legislation makes it legal to carry in all states.



I know you are prohibited from doing it, but does WA have any strong remedies for WA officers breaking WA standards.

It's always seemed to me that S1983 functions as the strongest remedy for officers that go over the constitutional line, but alas it's only good if they go over the Federal constitutional line. . .



i'm not very schooled on the whole remedy thing... since i never do anything wrong, it's an area of the law i am unfamiliar with :l

but seriously, i am not aware of any strong remedies within the WA court system, but what i was referring to was that dept's can and will penalize an officer that they know is doing this stuff.

also, WA's civil immunity stuff (we had a roll call lesson on this recently) essentially doesn't cover you if you are doing something you know is unconstitutional under state law.

iow, if i make a "rip" iow a stop/search that i know is blatantly unconstitutional, but just to get some drugs off the street, etc. and the guy resists and gets injured, then i could be successfully sued because the transaction itself (a stop without RS or a search without PC ) led to the resistance, which led to the force that caused injury. even if the force WOULD be reasonable given a valid stop/search, since it was done pursuant to a knowingly bad stop/search, the officer becomes significantly more liable and loses all sorts of immunities protections he would otherwise have in this state.
4.22.2009 1:14pm
jccamp (mail):
Whit -

Just to clarify: no state judge (in Dade County anyway) will even look at an affidavit without a prosecutor's prior approval. No prosecutor is going to allow a work product with misspelling, grammatical errors, etc, and especially with any language which might be confusing and/or ambiguous - so now we're dealing with style, not necessarily legal requirements. As for after hours, even though there are rosters of on-call judges, it is not unusual for an on-call judge to tell the officers "call me back in the morning." Not much you can do about that, either. Next, no second hand preparation is recommended. Even the smallest of good-faith mistakes could invalidate the entire warrant. Remember, South Florida may be the most litigious society on the planet. Occasionally, one will develop a relationship with a judge which allows this system to be bypassed, but that is not something to overuse.

District Court is the preferred venue. The magistrates are professional and reasonable - and available 24 hours. AUSA's typically go with facts over style, and tend to appreciate urgency when called for.

Einhverfr -

Carroll Doctrine still works down here. You can see why.
4.22.2009 3:33pm
whit:

it is not unusual for an on-call judge to tell the officers "call me back in the morning."


wow. just wow. what exactly does 'on call' mean down there? you just have to answer the phone and tell the guy to call back in the morning. lol

y'know as much as judges get the reputation of thinking they are god incarnate (tm) etc. i have woken (presumably) some judges up in the middle of the night for warrants, and they were never anything but nice to me.
4.22.2009 3:43pm
jccamp (mail):
Oren -

"Dang, I got to get in on that -- instant 50-state-valid CCW!"


Prior to the recent legislation, the authority to carry (and arrest, serve process, etc) was limited administratively by the issuing Federal agency to those places and times when you were acting pursuant to a Federal investigation - which, of course, was pretty much all the time and anywhere you had a body temperature if you knew how to write. My authority was from Customs, which was the original program (I think). Later, when the FBI was trying to expand, they would incorporate state officers by cross designation as deputy U S Marshals. DEA also had a similar program, but I don't know what precise authority they conferred on non-Federal officers.

We used to call it the "Extremely Big Badge" - as opposed to the original Big Badge of Florida Deputy Sheriff, which, as a constitutional office, has tremendous authority in the state.
4.22.2009 3:44pm
jccamp (mail):
Whit -

My experience was mixed, maybe 35% good and 65% negative, re: judges. We had a few special judges we tried to save for those really good cases, such as the learned judge who was never reversed. You tried to get him for the warrants on a capital case, since the other felony level judges would be hesitant to suppress a warrant signed by - essentially - a law school professor. You also had the drunken judge who would sign anything, for that case with, let us say, borderline PC. Most of the time, we just took blind chance and called the next name on the roster. And yes, some of them told us "It's 2:00 AM. Don't ever call me in the middle of the night." and hung up. Public servitude of a different mode. After awhile, the real judges would recognize you and things would get easier. But if you were a uniformed guy, trying for something routine? You would never get a warrant signed until you came to someone like me to get you in the door and vouch for you. Probably the only thing that has changed from the process of the 1920's is that the cops didn't have to tip the judges anymore.
4.22.2009 3:59pm
einhverfr (mail) (www):
jccamp:

How quickly would things change in South Florida if the Carrol doctrine was reversed?
4.23.2009 12:58am
AppellatePractice (mail):
Wisconsin allows blood draw without a warrant,on the basis of exigent circumstances presented by the rapid dissipation of alcohol from the bloodstream. State v. Bohling.
4.24.2009 11:39am
Oren:


you don't need to. any full time LEO who is authorized to carry in his state now has a 50 state valid CCW. recent legislation makes it legal to carry in all states.


Full time though. I just want to be deputized as a US Marshal without having to do any work (well, I suppose I could be bothered to stop crime directly in front of me).

Shit, I'd pay good money to have that commission.
4.24.2009 8:48pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.