Supreme Court Limits Search-Incident-to-Arrest Exception:
The Supreme Court handed down Arizona v. Gant
this morning, imposing a new limitation on the search incident to arrest power when the police want to search an automobile. Under New York v. Belton
, the rule has been that the police can search the passenger area of a car when they arrest an occupant or recent occupant of the vehicle. Today, in a vote of 5-4, the Supreme Court added a new limitation: The police can search a car following arrest only if they could have a reasonable belief 1) that the person arrested "could have accessed his car at the time of the search" or 2)"that evidence of the offense for which he was arrested might have been found therein."
In the majority opinion by Justice Stevens, the Court concludes that these limitations are proper because the absence of these limitations simply gives the police too much power, power that cannot be justified by the reasonableness requirement of the Fourth Amendment. Stare decisis
does not prevail because it is pretty clear to the majority that searches absent an evidentiary or police safety nexus are unconstitutional, and that the police are just going too far relying on the traditional broad reading of Belton
Stay tuned for more Gant
-blogging throughout the day.
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?
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.
When Is It "Reasonable to Believe" That Evidence Relevant to An Offense is In A Car? Does that Require Probable Cause, Reasonable Suspicion, or Something Else?:
Imagine the police arrest the driver of a car, and they handcuff and put him in the back of the squad car. The police want to search the car for evidence, but they don't have probable cause to believe there is evidence in the car. The police can't search the car based on officer safety concerns because the driver is now in the back seat of the squad car. However, yesterday's decision in Arizona v. Gant
holds that there is another rationale the police may be able to rely on to search the passenger compartment of the car: the police can search if they have facts that make it "reasonable to believe the vehicle contains evidence of the offense of arrest." Here's my question: What level of certainty does the "reasonable to believe" standard require? Is that probable cause? Reasonable suspicion? Something else?
At first blush, my thought was that "reasonable to believe" surely can't mean probable cause: Under the automobile exception, the police can search any part of a car that might store evidence if they have probable cause to believe that evidence is in the car. That's true without an arrest, and it's why the police almost never get a warrant to search a car. Notably, Justice Alito in his dissent assumes that "reason to believe" is different from probable cause. (Alito asks, "Why, for example, is the standard for this type of evidence-gathering search 'reason to believe' rather than probable cause?") But if it's not probable cause, what is it?
Let's take a look. We start with the holding of Justice Stevens' majority opinion in Gant
that adopted the "reasonable to believe" test:
[W]e hold that 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.
The analysis section of the opinion offers this explanation:
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.” Thornton,541 U. S., at 632 (Scalia, J., concurring in judgment). 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. See, e.g., Atwater v. Lago Vista, 532 U. S. 318, 324 (2001); Knowles v. Iowa, 525 U. S. 113, 118 (1998). 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. . . .
So the test is straight from Justice Scalia's concurrence
in Thornton v. United States
. Let's turn to that next.
Unfortunately, Justice Scalia's opinion is not particularly clear on what the "reasonable to believe" standard means. As I read the opinion, there are two potentially relevant passages. First, Scalia quotes a source that used a "reason to believe" formulation, an 1872 edition of Bishop's Criminal Law treatise, 1 J. Bishop, Criminal Procedure §211, p. 127 (2d ed. 1872), which Scalia quotes as follows:
"The officer who arrests a man on a criminal charge should consider the nature of the charge; and, if he finds about the prisoner’s person, or otherwise in his possession, either goods or moneys which there is reason to believe are connected with the supposed crime as its fruits, or as the instruments with which it was committed, or as directly furnishing evidence relating to the transaction, he may take the same, and hold them to be disposed of as the court may direct." Bishop, supra, §211, at 127.
(emphasis added). Although this formulation uses the "reason to believe" language, it seems to be referring to the relevance point ex post after the evidence is found, not how much certainty must exist ex ante before the search can occur. So that doesn't seem very helpful.
The second passage is more directly useful. Scalia's opinion in Thornton
suggests that the "reasonable to believe" standard was applied in United States v. Rabinowitz, 339 U.S. 56 (1950)
, an early search-incident-to-arrest case involving a business. Scalia explains that in Rabinowitz
we did not treat the fact of arrest alone as sufficient, but upheld the search only after noting that it was “not general or exploratory for whatever might be turned up” but reflected a reasonable belief that evidence would be found. 339 U.S., at 62—63;
If you look up Rabinowitz
, however, it does not actually use the "reasonble belief" formulation. Here's the relevant passage from Rabinowitz
In the instant case, the search was not general or exploratory for whatever might be turned up. Specificity was the mark of the search and seizure here. There was probable cause to believe that respondent was conducting his business illegally. The search was for stamps overprinted illegally, which were thought upon the most reliable information to be in the possession of and concealed by respondent in the very room where he was arrested, over which room he had immediate control, and in which he had been selling such stamps unlawfully. Harris v. United States, 331 U. S. 145, which has not been overruled, is ample authority for the more limited search here considered.
Hmm, not so helpful. Harris v. United States
, cited in Rabinowitz, isn't helpful for our purposes, either. Indeed, Harris
states at page 154 that no
"mere evidence" can be searched for incident to arrest, which presumably went out the window with Warden v. Hayden
in 1967 (if not before).
So maybe Justice Scalia in Thornton
had some more general sense of what "reasonable to believe" means in Fourth Amendment law? I'm not aware of the Supreme Court using "reasonable to believe" elsewhere in Fourth Amendment law, but I am aware of three different lines of cases that have used "reason to believe." Now, it's not obvious to me that a "reason to believe" standard is the same as a "reasonable to believe" standard. You could have a reason to believe X, and yet countervailing considerations could make it unreasonable to believe X. But it seems more likely that they are meant to be the same; note that Justice Alito's dissent in Gant
repeatedly refers to the majority's standard as a "reason to believe" standard, not a "reasonable to believe" standard. See also United States v. Gorman, 314 F.3d 1105 n.4 (9th Cir. 2002) (noting that the terms are often used interchangeably, at least in the Ninth Circuit).
So perhaps the Fourth Amendment lines of cases using a "reason to believe" standard can reveal the answer.
First, in Ornelas v. Ruiz
, 161 U.S. 502 (1896), the Supreme Court adopted Chief Justice Marshall's formulation of probable cause he used in the Aaron Burr treason case (for which he sat as a trial judge):
I understand probable cause to be a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it.
While on one hand this seems to equate "reason to believe" with probable cause, the actual language was "good reason to believe." Plus, Marshall's formulation is pretty unknown today; it seems unlikely that Scalia or Stevens had that in mind.
A more prominent use of the "reason to believe" language in Fourth Amendment law comes in Payton v. New York
held that "for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within."
The Supreme Court has never said how certain "reason to believe" is in the Payton
setting, but there is an acknowledged circuit split on the issue. Most circuits have never quite defined it, but treated it as "something less" than probable cause. See United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005) (citing cases). In contrast, the Ninth Circuit and a few dissenting opinions elsewhere have said that "reason to believe" means probable cause, see United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir. 2002). That may indicate that "reasonable to believe" is some standard less than probable cause, albeit nothing ever really defined in the law.
Finally, the Supreme Court has also used "reason to believe" to allow a police officer to frisk a suspect in Terry v. Ohio
. Here's what the Court said in Terry
there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174 -176 (1949); Stacey v. Emery, 97 U.S. 642, 645 (1878). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.
If Justice Scalia's Thornton
concurrence was trying to use the same concept as Terry
, then I suppose we could look at whether "a reasonably prudent man in the circumstances would be warranted in the belief" that there was evidence relevant in the arrest in the passenger compartment of the car. Maybe, although it's not entirely sure to me how that applies: I think of the reasonably prudent person as a person who assesses risks of harms, as in Terry
or the usual tort law standard, and who can accurately identify when a particular precaution is justified in response to the harm.
But how does that apply to assessing the likelihood that relevant evidence would be found in a car? When a person assesses the likelihood that evidence is in a car, it's just an estimate of probability: There is no countervailing judgment or balance to be performed. Perhaps the officer is supposed to consider how invasive the search of the car is going to be and then make an on-the-spot judgment of Fourth Amendment reasonableness, so that the search itself is reasonable in an ex ante cost-benefit sense? That's possible, I suppose, but it seems a bit detached from the reasonable basis language: the test is reasonable basis to believe evidence is inside, not a reasonable basis to believe the search would be reasonable.
So where does that bring us? In the end, I find myself not entirely sure what the standard is. My best guess is that "reasonable to believe" is the sort of undefined reasonableness used by most lower courts in the Payton
setting. See United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005) (citing cases). Based on my research, that's probably the best answer to the question. But as I said, I'm not entirely sure of that.
Of course, if you think I'm missing something, please consider offering your thoughts in the comment thread.
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.
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
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.