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One Lesson of Arizona v. Gant,
handed down today: New York v. Belton is not a "super precedent."

  Interestingly, though, the one Justice who was on the Court at the time of Belton has stayed pretty consistent. Justice Stevens did not sign on to the majority in Belton, and concurred in Belton only because he thought the automobile exception applied given the facts of that case. As he wrote in his dissent in Robbins v. California, handed down the same day as Belton, he thought at the time that the Belton rule erroneously "authorizes unreasonable searches of vehicles and containers without probable cause to believe that contraband will be found."

  Of course, Stevens did not have the votes for that back in 1981, before the Reagan and Bush appointees had arrived. Back in 1981, the likes of Justices Blackmun, Powell, and Stewart had control of the Court, and so the police were given a broad rule in their favor. It was not until these Justices retired, and were replaced with Reagan and Bush appointees like Scalia, Thomas, and Souter that Stevens would have the votes he needed to protect defendants with a more privacy-protective rule than could be mustered back in 1981.
Melancton Smith:
David Hardy points out an inconsistency between Stevens' favor of state decisis in Heller and his dismissal of it in Gant.
4.21.2009 3:28pm
Visitor Again:
Just to make it clear who voted how in New York v. Belton--STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. REHNQUIST, J., [453 U.S. 454, 455] filed a concurring statement, post, p. 463. STEVENS, J., filed a statement concurring in the judgment, post, p. 463. BRENNAN, J., post, p. 463, and WHITE, J., post, p. 472, filed dissenting opinions, in which MARSHALL, J., joined.

Yes it was the Republican-appointed justices who did the damage to the fourth amendment. All in the majority were appointed by Eisenhower and Nixon. The Democrat-appointed justices all dissented. So I'm glad to see later Republican-appointed justices joining in to partially undo the damage wreaked by former Republican-appointed justices.
4.21.2009 3:31pm
Visitor Again:
I should say that both the Democrat-appointed justices dissented in Belton because Brennan, albeit a Democrat, was appointed by Eisenhower, who later regretted the appointment.
4.21.2009 4:02pm
allan (mail):
A question: why did the Court not get into the exclusionary rule stuff?

Gant was arrested and, presumably, his car would be towed to an impound lot. When it got to the impound lot, the police would have done an inventory of the contents and found the items. Thus, the items would have been found.

So, one would think that the prosecution could have argued inevitable discovery. Or, if the prosecution was more ambitious, it could have argued that the evidence should have been allowed as an exception to the exclusionary rule.

Maybe the issue was not raised, so it was not addressed.
4.21.2009 4:31pm
Andrew J. Lazarus (mail):
Roe shaped public perception of Blackmun so much it hid how pro-police he was on Fourth Amendment cases.
4.21.2009 4:36pm
GA Onlooker:
allan, Grant's vehicle was parked in his own driveway. Impoundment wouldn't fly.
4.21.2009 4:36pm
Jacob Berlove:
The link to super-precedent erroneously starts with "hhttp"
4.21.2009 4:49pm
Anderson (mail):
It was not until these Justices retired, and were replaced with Reagan and Bush appointees like Scalia, Thomas, and Souter that Stevens would have the votes he needed to protect defendants with a more privacy-protective rule than could be mustered back in 1981.

Man, I could *feel* Prof. Kerr smiling as he wrote that.
4.21.2009 4:51pm
Jacob Berlove:
Of course the trend may in time reverse again with the Bush II appointees likely being even more pro-police than Stewart, Powell, and Blackmun.
4.21.2009 4:52pm
Daniel San:
allan
The prosecution would have made a factual record on it, showing that the vehicle would have been impounded and that there was a policy for inventory of impounded vehicles. I doubt that they would have bothered to do that at a supression hearing when the law was on their side. Few prosecutors will go to extra effort to address the possibility that SCOTUS may reverse course on the operative law. BTW, it doesn't look like this would be a good case to argue impoundment.
4.21.2009 4:52pm
SHG (www):
For context, the New York Court of Appeals, on remand, refused to adhere to the Supreme Court decision and ruled the search unconstitutional under the New York Constitution, Article I, Section 12.
4.21.2009 4:55pm
Oren:

For context, the New York Court of Appeals, on remand, refused to adhere to the Supreme Court decision and ruled the search unconstitutional under the New York Constitution, Article I, Section 12.

The wonders of Federalism!
4.21.2009 4:58pm
Anon21:
SHG:
For context, the New York Court of Appeals, on remand, refused to adhere to the Supreme Court decision and ruled the search unconstitutional under the New York Constitution, Article I, Section 12.

This does not appear to be correct. In People v. Belton, 55 N.Y.2d 49 (1982) (accessed via Lexis), the Court of Appeals held that the search in question was valid under Article I, Section 12, and affirmed the conviction.
4.21.2009 5:15pm
OrinKerr:
Anderson,

That obvious, eh? ;-) I was trying to figure out how much to ham it up; that was about the mid-point of the options.
4.21.2009 5:19pm
PubliusFL:
It looks to me like impoundment was authorized under ARS 28-3511. So, like allan, I wonder why inventory search and inevitable discovery were not discussed in this case.
4.21.2009 5:41pm
BRM:
To be fair, appointees of Democratic presidents haven't been much of a presence on the Court since the New Deal appointees retired or died (and Justice Fortas was forced to resign). The Court hasn't had a majority of Democratic appointees since the 60s.
4.21.2009 5:51pm
Visitor Again:
Gant was arrested and, presumably, his car would be towed to an impound lot

You presume a lot. Read the opinion. The defendant was arrested after his car entered his own driveway. Why would the police have authori8ty to impound a car on the driver/owner's property?
4.21.2009 5:54pm
PubliusFL:
Visitor Again:

See my comment, the second above yours. Arizona law explicitly authorizes impoundment of a car driven by someone with a suspended license. The statute does not appear to have any exception for when the vehicle is located on the driver's or owner's property.
4.21.2009 6:14pm
Visitor Again:
It looks to me like impoundment was authorized under ARS 28-3511. So, like allan, I wonder why inventory search and inevitable discovery were not discussed in this case.


See my comment, the second above yours. Arizona law explicitly authorizes impoundment of a car driven by someone with a suspended license. The statute does not appear to have any exception for when the vehicle is located on the driver's or owner's property.

Well, you're second-guessing the police, not the Court because there is no indication the car ever was impounded and no indication the matter was raised below or in the briefs before the Court.
4.21.2009 7:07pm
einhverfr (mail) (www):
PubliusFL:

The representatives of Arizona stated that impoundment did not happen because the individual was arrested after he left the vehicle and had pulled it into his driveway.

Whatever the rule states textually, the issue didn't come up in argument.
4.21.2009 7:08pm
einhverfr (mail) (www):
Visitor Again:

The issue was raised in oral arguments and the position of the state of Arizona was that they couldn't impound under the conditions of this case.
4.21.2009 7:10pm
einhverfr (mail) (www):
Also another lesson from Gant....

In defending a search at the Supreme Court, it is generally a bad idea to say "Here we didn't have probable cause."
4.21.2009 7:11pm
BRM:
Well, if you claim to have probable cause, and are forced to elaborate the basis, you might be called out as giving the worst definition of probable cause Justice Souter has ever heard.
4.21.2009 7:23pm
Oren:


See my comment, the second above yours. Arizona law explicitly authorizes impoundment of a car driven by someone with a suspended license. The statute does not appear to have any exception for when the vehicle is located on the driver's or owner's property.

Impounding a car from someone's property, even pursuant to a vehicle-related arrest, would amount to an unreasonable seizure in-and-of-itself.
4.21.2009 7:29pm
Visitor Again:
The issue was raised in oral arguments and the position of the state of Arizona was that they couldn't impound under the conditions of this case.

Thank you. So why all the fuss from some others about the Court not delving into it?
4.21.2009 7:33pm
SHG (www):
The United States Supreme Court having disagreed with our perception of the requirements of the Fourth Amendment to the United States Constitution and reversed our earlier decision, this case comes once again to this court. Defendant urges that, although the search in question has been held valid under the Federal Constitution, we should hold that it violated section 12 of article I of the State Constitution, a contention not confronted when the case was previously before us. The identical wording of the two provisions does not proscribe our more strictly construing the State Constitution than the Supreme Court has construed the Federal Constitution.


On remand, the search was upheld on other grounds, the automobile exception rather than a search incident to arrest, and the conviction affirmed.
4.21.2009 7:39pm
shertaugh:
BRM wrote:


". . . The Court hasn't had a majority of Democratic appointees since the 60s."


Orin, is the correct appellation "Democrat[ ] appointees"?
4.21.2009 8:20pm
einhverfr (mail) (www):
Visitor:

Thank you. So why all the fuss from some others about the Court not delving into it?


Some folks don't read the oral arguments?
4.22.2009 12:05am
Visitor Again:
Some folks don't read the oral arguments?

Well I didn't read the oral arguments, obviously, but I did scan the briefs and read the opinion, which gave no hint of inevitable discovery through inventory search being an issue, either below or before the Court. Even had the Arizona A.G. said inevitable discovery was an issue, it would have required a remand, would it not, since not raised below and not diwscussed in the briefs? Otherwise disposition of the case on that ground would violate due process, the defendant not having been giv4en full and fair opporunity to be heard on the point.
4.22.2009 7:54am
nonconsenter:
BRM: Well, if you claim to have probable cause, and are forced to elaborate the basis, you might be called out as giving the worst definition of probable cause Justice Souter has ever heard.

Actually, unless there is another instance, Justice Souter called out police who claimed they did not have probable cause to get a warrant as having the worst view of probable cause he's ever heard.
4.22.2009 11:33am

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