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