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Does Arizona v. Gant Extend Beyond Passenger Compartments?:
In Tuesday's decision in Arizona v. Gant, the Supreme Court limited the search incident to arrest power as follows:
[W]e hold that [New York v.] Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 U. S. 615 (2004) , and following the suggestion in Justice Scalia's opinion concurring in the judgment in that case, id., at 632, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.
  I wonder, do the "circumstances unique to the automobile context" justify a search of a car's trunk, not just the passenger compartment?

  The question is interesting and potentially important because the scope of search incident to arrest under New York v. Belton is limited to a search of the passenger compartment of a car. Belton stated its holding as follows: "we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." In plain english, Belton allows a search of the interior but not the trunk.

  Gant plainly limits the reachable area aspect of Belton, briging it closer to Chimel, such that the passenger compartment can be searched only when he can actually access the passenger compartment. But does the new exception allowing searches "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle" apply beyond the passenger compartment of the car?

  Here's an example of facts that will raise the question. The police pull over a driver and arrest him. They develop a reasonable belief that there is evidence of the crime in the trunk of the car (perhaps the driver keeps looking nervously at the trunk area). However, the police do not quite have probable cause that there is evidence in the car. The police search the trunk and find the evidence. When charges are brought, the defendant moves to suppress the evidence seized from the trunk. Should a court suppress that evidence or not?

  Before Gant, this would have been easy: The evidence should be suppressed. After Gant, however, I think the better answer is that the court should not suppress the evidence, and that this particular aspect of Gant actually expands police power. Nothing in the reasoning of Justice Scalia's concurrence in Thornton (adopted in Gant) seems to be limited to the passenger compartment of the vehicle. Instead, it seems to talk about vehicles generally, and the general interest in collecting evidence there. The formulation of the proposed test adopted in Gant then speaks only of cause to believe the evidence is in the vehicle, and he unique circumstances of cars, not anything specifically about passenger compartments.

  A contrary reading could lead to some strange results. It would be pretty odd if the test were focused on cause to believe the evidence is in the car somewhere, but then allowed only a search of the passenger compartment. If the police had cause to believe the evidence was in the trunk, but they knew there was no relevant evidence in the passenger compartment, the contrary reading would allow them to search only where they knew the evidence wasn't actually located. That would be quite odd. I suppose one way out of this would be to read the new exception as implicitly limited to cause to believe evidence is in the passenger compartment, but that seems hard to square with the actual language used in the opinions. So I think Gant probably does extent beyond passenger compartments.
The Original TS (mail):
I think you are exactly correct, Orin. It has been interesting, and a little disturbing, to watch the "search incident to arrest" doctrine move, step by step, from protecting officer safety to just another evidence-gathering technique. With Gant, the exception has now officially completely consumed the rule.
4.23.2009 2:10pm
Avatar (mail):
It depends what he's being arrested for, doesn't it?

If he's under arrest because he's fleeing from a robbery, then searching the trunk is probably reasonable - you're looking for the stolen goods that are related to the robbery you've just arrested him for.

If he's under arrest because his tail light is out, then not so much.
4.23.2009 2:13pm
gsmcneal (www):
Orin,

Thanks for this post, here were some of my thoughts on this, really just sketching them out and would love to hear your thoughts and those of others (apologies for the length):

Let's take the same fact pattern in Gant, but with a tweak, Gant is in the back of the police car and says (truthfully or not) "My license is not suspended, I just came from the courthouse and have a piece of paper from the judge that says my license is valid, it's in my glovebox." (Or even better he leaves the "in the glovebox" part out.) So, there is no officer safety or evidence destruction rationale. But what about the "evidence relevant to the crime of arrest" rationale? It seems it's triggered, but what is the scope of that search?

The court went out of its way to say "Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" (Opinion at 10, citing Thornton). Based on this language, couldn't the officer in my hypo conduct a Thornton search of the car for the "paper from the judge"? The scope of a Thornton search is fairly broad, reaching all of those areas "readily accessible to a 'recent occupant.'" In Thornton the Court reasoned that Thornton's firearm was "no more inaccessible than were the contraband and the passenger compartment in Belton." Do you think that reasoning has fallen by the wayside as well? In which case must the "evidence relevant to the crime of arrest" search be limited only to the glovebox or where the evidence might be found? If that's the case, then it is the equivalent of a search pursuant to the automobile exception, the two exceptions would merge.

I don't think the merger is the necessary conclusion, otherwise the Court would have merely said "if evidence relevant to the crime of arrest is present, then the automobile or some other exception will apply." In fact, in a few places in the opinion the Court references other exceptions separate and apart from the search incident based on "evidence relevant to the crime." Similarly, Justice Scalia in his Gant concurring opinion reinforces the evidence rationale stating that a vehicle search incident to arrest is reasonable "only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred." (Scalia concurring at 2-3) The Court adopts Scalia's evidence based search rationale (Opinion at 14) and that rationale was based on his concurrence in Thornton. So, if the search is for evidence, we still don't know what the scope of the search is. Is it limited like an automobile exception search, or is the "readily accessible to a 'recent occupant'" language from Thornton still valid? On the one hand, it seems logical to conclude that the scope is narrowed because that "readily accessible" language speaks to the destruction of contraband or grabbing of a weapon, but those are Chimel rationales and the Court tells us that there is a separate evidentiary rationale that doesn't flow from Chimel. Where do they get this from? Well, they rely on Scalia's concurring opinion in Thornton, but his concurring opinion there relied on Rabinowitz, which was overruled by Chimel.

What Scalia said in Thornton, referencing Rabinowitz, is important, he wrote "we did not justify the search…as a means to prevent concealment or destruction of evidence. Rather, we relied on a more general interest in gathering evidence relevant to the crime for which the suspect had been arrested." He continued "There is nothing irrational about broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested. The fact of prior lawful arrest distinguishes the arrestee from society at large, and distinguishes a search for evidence of his crime from general rummaging. Moreover, it is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended." Continuing, he wrote that Belton searches should be limited "to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle."

Remember in Rabinowitz the officers were armed solely with an arrest warrant. Nonetheless they proceeded to search Rabinowitz's desk, safe and file cabinets for evidence of his crime (fake stamps). The Rabinowitz court, citing to Marron v. U.S. 275 U.S. 192 described the scope of a valid search incident to arrest in terms similar to Thornton and Belton stating "[The area searched was within Marron's] immediate possession and control. The authority of officers to search and seize the things … extended to all parts of the premises used for the unlawful purpose." (Rabinowitz at 434 citing Marron v. U.S.) On the question of whether the search was reasonable, Rabinowitz relied on Harris where Harris was arrested in his living room, but the police searched adjacent rooms to find canceled checks which were admitted against him. The Harris court stated "The canceled checks and other instrumentalities of the crimes charged in the warrants could easily have been concealed in any of the four rooms of the apartment. Other situations may arise in which the nature and size of the object sought or the lack of effective control over the premises on the part of persons arrested may require that the searches be less extensive. But the area which reasonably may be subjected to search is not to be determined by the fortuitous circumstances that the arrest took place in the living room as contrasted to some other room in the apartment." (Harris v. U.S. 331 U.S. 145). Given these interpretations of reasonableness and the scope of a search incident to arrest, it seems reasonable to allow an officer acting under the Gant "evidence relevant to the crime" rationale to conduct a search just as expansive as the Thornton and Belton searches. In my hypo, could one argue that the officer is not limited to the glove box, he can look in the center console and a jacket on the seat (any open or unopened containers in the passenger compartment) as both are "readily accessible to a 'recent occupant.'". Granted, Stevens and Souter in Belton thought that the Belton rule wrongly permitted officers to open containers and would have rejected that portion of the rule, however it's not clear what they think about the Gant "evidence relevant to the crime" search. If Gant is premised upon the Scalia Thornton concurrence, and that was premised upon Rabinowitz it seems there is an argument that an "evidence relevant to the crime search" under Gant is of a different nature and scope than an automobile exception search. But really, I'm just not sure and I could be missing something obvious.

If I'm the government in my hypo above, I'd argue that a search incident to arrest based on the Gant "evidence relevant to the crime" rationale is distinguishable from a search under the automobile exception and the scope of that search is as broad as the searches permitted in Belton and Thornton, otherwise the "evidence relevant to the crime" rationale offered in Gant would be redundant and swallowed up by the automobile exception.

This case seemed so straightforward at first, but it's turning into something of a mystery. Of course my cursory analysis above is clearly missing something, so I look forward to the comments of others.
4.23.2009 2:19pm
OrinKerr:
Original TS,

From your perspective, isn't Gant better than Belton? Gant limits the exception in most ways -- I just wonder if it ends up expanding it in this small way.

Avatar,

I'm assuming that the officer has a reasonable belief (whatever that is); I'm just wondering if the belief includes the trunk.
4.23.2009 2:23pm
einhverfr (mail) (www):
Would US v. Carrol be of help here? After all the search in question did not involve reachable area in any way (and involved pulling upholstery off the seats). It would seem to me that if there was probable cause to search the trunk, under Carrol, no warrant would be needed. Or am I missing something?
4.23.2009 2:25pm
OrinKerr:
Einhverfr,

I'm assuming the police don't yet have PC to believe evidence is in the car, so Caroll and the auto exception cases can't apply.
4.23.2009 2:29pm
Gilbert (mail):
It would make sense not to extend Gant to the trunk if you say that the driver has a greater expectation of privacy in the trunk. I don't remember exactly where the cases fall on this, but I do remember that at least part of the automobile exception is that the interior is visible, though I also seem to remember that that wasn't the primary justification.
4.23.2009 2:45pm
Archon (mail):
Wouldn't Gant still be bound by the holding in Belton? The majority explicitly stated that Belton was not overruled, but was simply being overread.
4.23.2009 2:51pm
hattio1:
Professor Kerr asks;



If the police had cause to believe the evidence was in the trunk, but they knew there was no relevant evidence in the passenger compartment, the contrary reading would allow them to search only where they knew the evidence wasn't actually located. That would be quite odd. I suppose one way out of this would be to read the new exception as implicitly limited to cause to believe evidence is in the passenger compartment, but that seems hard to square with the actual language used in the opinions.


Of course, another way out would be to uphold the warrant requirement. You have enough evidence to establish PC and the issuing of a warrant, you search, you don't have PC, you don't search. I realize that's not what the text of the 4th Amendment says though.

As an aside I question whether continued glancing at the trunk really does create a reasonable suspicion. I'm sure there are cases out there, but is reasonable suspicion really that low of a standard?
4.23.2009 3:05pm
einhverfr (mail) (www):
OrinKerr:

Ok, one would need more info than the hypothetical provided.

What was the crime the individual was arrested for? How probable is the cause? You might also run into inevitable discovery issues if the car was subject to impound.

It seems to me that if one was arrested for, say, a DUI, that a trunk search wouldn't be acceptable under Gant but a passenger compartment search would. However, suppose cocaine was found in the passenger compartment. Would this be enough to show probable cause to search the trunk? Could the police impound and search on other bases?

It isn't clear to me what courts will rule in future cases. Personally I think that courts should see stare decisis as weak at best when covering issues which were not before the court in the previous case. For example, Heller was not about the federal machine gun statute, so anything the court said there OUGHT to be evaluated for persuasive value only. Unfortunately this is not the way things work, so it isn't clear how future courts will read this section.
4.23.2009 3:11pm
Slippery Slope (mail):
Orin-

Without expressing a view on the underlying doctrines, there are portions of the opinion that will make clear to lower courts that the Court was limiting its holding to the passenger compartment.

First, right after noting it was adopting Scalia's rationale in his concurrence in Thorton about search for evidence relevant to the crime of arrest, the Court said:

In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein.

Subsequently, the Court distinguishes between the search for evidence when there it is "reasonable to believe" there is evidence from the search for evidence when there is "probable cause to believe" there is evidence:

If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U. S. 798, 820--821 (1982), authorizes a search of any area of the vehicle in which the evidence might be found. Unlike the searches permitted by Justice Scalia's opinion concurring in the judgment in Thornton, which we conclude today are reasonable for purposes of the Fourth Amendment, Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader.

The phrase "scope of search" at the end of the second sentence clearly is intended to refer back to the phrase "any area of the vehicle" language in the first sentence. Again, the Court limits a Gant search the passenger compartment.
4.23.2009 3:45pm
The Original TS (mail):

Original TS,

From your perspective, isn't Gant better than Belton? Gant limits the exception in most ways -- I just wonder if it ends up expanding it in this small way.


No. Gant is a disaster. The rationale in Chimel was that the search was necessary to protect officer safety and to prevent the destruction of evidence. Chimel was in a house so it made some sense. The place of arrest was equivalent to a crime scene that would pass out of police control once they left.

Belton extends that analysis to a car, a much more iffy proposition in that the police need not reliquish control of a car when the have arrested the driver. But the underlying rationale is still officer safety and the prevention of destruction of evidence.

Gant recognizes that the shibboleth of "officer safety and protection of evidence" does not pass the snicker test when the arrestee is handcuffed and in the back of a police car while the search is conducted. So far, so good. But Gant adopts Scalia's concurrence in Thornton as its holding.

Scalia's concurrence recognizes that the "officer safety" rationale is silly. But he goes on to justify the search on the grounds that the mere fact of arrest gives the police authority to search for evidence.

This is a qualitative change in Fourth Amendment jurisprudence. I can guarantee you that police and prosecutors will be jumping on this new "loophole" with both feet.

Gant stands for the basic proposition that a search is reasonable under the Fourth amendment if it is reasonable for the officer to believe that he might find evidence of a crime. Gant currently limits this doctrine to the crime for which someone has been arrested. But these limitations won't last long. Without question, law enforcement will be making vigorous efforts to see just how far this particular envelope will stretch.
4.23.2009 4:01pm
einhverfr (mail) (www):
TS:

Gant stands for the basic proposition that a search is reasonable under the Fourth amendment if it is reasonable for the officer to believe that he might find evidence of a crime.


Ummm.... Not just "a crime" but the crime that was the basis of the arrest. IOW, if you are arrested for drunk driving, they can search the car for open containers (evidence that you were driving drunk), but if you were arrested for driving with an expired driver's license, then a SIA would not pass the snicker test.

Also a wrongful arrest just to gather evidence is not likely to be looked on well by the court, and is far more likely to result in cases brought before the court or at least a paper record that the court can review than the older questions (arrested for driving with an expired license and there is a SIA that turns up nothing, you have no remedy-- if you are arrested on suspicion of drug possession as the basis for a fishing expedition that turns up nothing, you are more likely to have a remedy).
4.23.2009 4:30pm
BRM:
I thought the rationale in Chimel for allowing a search incident to arrest (other than officer safety) was to prevent destruction of evidence in the arrestee's control. If the passenger compartment is the part of the car under the arrestee's control, then Gant would only allow searching the part of the car that would be under the arrestee's control.
4.23.2009 5:12pm
The Original TS (mail):

Not just "a crime" but the crime that was the basis of the arrest.


Yes, at the moment, as I acknowledge in the sentence following the one you quote. But the history of the Fourth Amendment over the last few decades has been to start with a narrow exception and then expand it far beyond its original rationale. That's how we got to Belton and Thornton in the first place.


I thought the rationale in Chimel for allowing a search incident to arrest (other than officer safety) was to prevent destruction of evidence in the arrestee's control. If the passenger compartment is the part of the car under the arrestee's control, then Gant would only allow searching the part of the car that would be under the arrestee's control.


That, and officer safety, were the rationales in Chimel. But that's not the holding in Gant. If it were, police couldn't search any part of the car without a warrant because no part of the car is under the arrestee's control once he's been arrested and handcuffed. That's why Gant adopts an entirely new rationale.
4.23.2009 5:27pm
OrinKerr:
Original TS,

Just so I understand, you would rather have broad rule of the Thornton majority than the narrower rule of the Thornton concurrence?
4.23.2009 5:54pm
The Original TS (mail):
Orin,

Both Thornton and Belton, as Scalia points out, are objectively silly. But at least the officer safety/protect evidence exceptions have already been expanded pretty much as far as they can go.

Now, there's a brand-new hole in the Fourth Amendment to play with. How long will it be before someone tries to expand it to, say, detention instead of just arrest? True, Gant purports to limit it to arrest but look what happened to the Chimel rationale in subsequent cases.

So yes, as bad as it was, I prefer the majority opinion in Thornton to Scalia's concurrence. Scalia's rule isn't a "narrower rule," it's a Pandora's box.
4.23.2009 6:21pm
OrinKerr:
Original TS,

Thornton and Belton are not silly at all: They had four votes, and of some pretty non-silly Justices.

I guess I'm having a hard time understanding your take; it seems very contrary to my understanding of the Fourth Amendment and my reading of Gant. For example, you state, "Gant stands for the basic proposition that a search is reasonable under the Fourth amendment if it is reasonable for the officer to believe that he might find evidence of a crime." I entirely disagree. It doesn't stand for that any more than Carroll in 1925 or any of the auto cases going back 85 years. It is an automobile rule, premised on "circumstances unique to the automobile context," and I think you're missing that if you think it suddenly creates a whole new loophole or principle of Fourth Amendment law.
4.23.2009 6:53pm
Order of the Coif:
No wonder the Supreme Court made up a "good faith" liability exception for police officers. Their Fourth Amendment jurisprudence is more complex than the brother-sister corporation disguised dividend provisions of section 304 of the Internal Revenue Code (which, at least, CAN ultimately be understood and applied by lawyers and accountants).

Constitutional rights should not be turned into an Alice-in-Wonderland mind game puzzle. No ordinary person can possibly understand the rules being applied to her. That is just wrong.
4.23.2009 7:53pm
levisbaby:
I've always wondered - does the passenger compartment allow a search of, say, the rear cargo area of an SUV?
4.23.2009 8:13pm
Soronel Haetir (mail):
OK,

I believe that TS is simply arguing that however narrow the rule from Gant may appear the lower courts are going to expand it until told not to by SCOTUS.

Given that the court already noted that happening with Belton I tend to think TS is correct from a predictive standpoint.
4.23.2009 10:41pm
Just visiting:
To me it seems simple to distinguish between the passenger compartment and the trunk on basis of reasonable expectation of privacy, as has been previously done. But I don't understand why probable cause doesn't apply to a passenger compartment search under Gant. Once the officer-protection shibboleth (sp?) is set aside, why should you be able to search absent probable cause? (Which you may well have, if you had probable cause to arrest)

I am interested in how often this will be mooted by the impound/inventory exception. Perhaps, from now on, if the police are pulling you over, you should try hard to pull your car into a legal parking spot!
4.24.2009 10:49am
The Original TS (mail):
Orin,

Yes, I think that Belton and Thornton are silly. "Silly" is probably one of the kinder characterizations.

Remember the fact pattern we are talking about. An officer pulls someone over and arrests him for, say, Driving While Intoxicated. He handcuffs the driver, puts him in the backseat of his squad car and calls a tow truck to take the car to impound. Then, ala Belton, he decides to search the car. How is "officer safety" enhanced? The driver is hancuffed in the back of the officer's squad car. Even if the driver had an AK-47 under the seat and a box of handgrenades in the glove compartment, he no longer has any access to them. The same thing applies to the "protection of evidence" rationale. The police now have possession of the car. It's going to the impound lot. The driver no longer has any access to it. There is no pressing need to preserve evidence that is already in police possession.

To further illustrate, consider the comical, in context, distinction between the trunk and the passenger compartment. Once again, the driver is handcuffed in the back seat of the squad car. There are no weapons in the passenger compartment but there is a fully-loaded machine gun locked in the trunk. How is this weapon any less of a threat to the officer than one locked in the passenger compartment given that only the police now have any access to the car?

Now there are certainly good and logical reasons to distinguish between the passenger compartment and the trunk for Fourth Amendment purposes, but concerns about "officer safety" are not among them.

The problem with Belton and Thornton is they are not "premised on 'circumstances unique to the automobile context.'" On the contrary, they are attempts to import rules that make perfectly good sense in another context into the automobile context where they don't.

Look, for example, at the "officer safety" rationale." This makes perfect sense in the context of patting someone down who has just been arrested. But when you expand it to other contexts, it makes progressively less and less sense. Once you get to Thornton, it is nonsense.

Scalia, in his Thornton concurrence, makes it clear that he thinks it is silly, too. "The first is that, despite being handcuffed and secured in the back of a squad car, petitioner might have escaped and retrieved a weapon or evidence from his vehicle--a theory that calls to mind Judge Goldberg's reference to the mythical arrestee 'possessed of the skill of Houdini and the strength of Hercules.'"

In Thornton, Scalia proposes a new rule. In typical Scalia fashion, he pretends it is really an old rule. Regardless, it has not been THE rule for quite a long time. So with respect to modern Fourth Amendment jurisprudence, it is a new rule. Just like the "officer safety" rationale, there will be attempts by law enforcement and prosecutors to expand its reach. On past form, those attempts will succeed.
4.24.2009 2:00pm
Michael Drake (mail) (www):
From section II of the Gant opinion:
In Chimel, we held that a search incident to arrest may
only include "the arrestee's person and the area 'within his
immediate control'—construing that phrase to mean the
area from within which he might gain possession of...destructible evidence
." Ibid. That limitation,
which continues to define the boundaries of the exception.... (My emphasis.)
4.24.2009 6:25pm
Michael Drake (mail) (www):
Sorry, meant to chop that last sentence so that it reads "That limitation...continues to define the boundaries of the exception...."
4.24.2009 6:26pm
einhverfr (mail) (www):
TS:

In your hypo, wouldn't Gant and Belton both be irrelevant? After all, the police wold probably argue they care doing an inventory search since they impounded the vehicle, right?
4.24.2009 7:41pm
The Original TS (mail):


In your hypo, wouldn't Gant and Belton both be irrelevant?


My hypo was Thornton. Gant was somewhat different in that the car was parked in the suspect's driveway.

Gant may already hold the seeds of its eventual expansion. Gant had not been pulled over by the police. He parked in his driveway, got out, was hailed by the officers and then walked away from him and toward the officers before he was arrested. Scalia says that it would have been OK to search the car if the police thought they might find evidence of the crime for which he was being arrested there. Why?

The argument that the defendant had recently been in the car and had access to the passenger compartment won't take you far -- or, perhaps, it takes you too far. The car was legally parked on private property. The idea that you can search a car just because a suspect has recently been in it can be all too easily expanded.

For example, suppose an officer arrests someone for drinking in a public park. The officer goes back to the suspect's car, which is legally parked, and searches it for evidence of alcohol. A legal search? If not, why not? After Gant, I suspect it is a legal search. I'm afraid we'll find out soon enough because someone is almost certainly going to try this.
4.24.2009 9:20pm
Learned Disciple (mail):
I think that you are correct that Gant's exception for evidence includes searches of the trunk, however, it is important to remember that Gant specifically limits the evidnece police can search for to evidence of the crime for which the suspect was arrested. If they arrest somebody for reckless driving, they cannot search the trunk just because he looks at it a lot.
5.4.2009 5:10pm

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