The Fourth Amendment lives
The Fourth Amendment has gotten its head above water for a gasp of fresh air with the United States Supreme Court's opinion in Arizona v. Gant. It is not necessarily a far-reaching opinion (because the exceptions still swallow the rule when it comes to application of the Fourth Amendment), and it's holding is limited to a fairly specific set of circumstances as I'll discuss in a moment, but it does spark some hope that the Supreme Court still believes in our Constitution and specifically the Fourth Amendment. Yesterday following the opinion's release there was a ripple across the blogosphere as criminal defense bloggers celebrated and provided their commentary (see below for links).
Gant deals with the search of a vehicle incident to arrest, and it's holding is that:
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. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
Up to this point, police have routinely searched vehicles any time there was an excuse to arrest the driver (note that in S.C. you can technically be arrested for minor traffic violations such as speeding). In 1969, the U.S. Supreme Court held in Chimel v. California that police could search the area around an arrestee from which they could grab a weapon or destructible evidence, in the interest of 1) officer safety; and 2) preservation of evidence. In 1981, the U.S. Supreme Court decided New York v. Belton, which expanded this rule to the passenger compartments of vehicles and all containers therein. Despite the policy served by this rule - officer safety and preservation of destructible evidence - this has been interpreted to apply to cars even where the person arrested is handcuffed and in the patrol car, and in some cases it has been held to apply hours after the arrestee has been removed from the scene.
Justice Stevens in the majority opinion acknowledges this and says, "lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel." The majority holds that the rule in Chimel and Belton will apply in two situations: 1) "when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search," and 2) "when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle."
My first thought regarding the first circumstance was, will they now train police to leave arrestees unsecured by their car long enough to search for evidence? I believe the Court considered this as well, as they noted in footnote 4: "Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains."
Regarding the second circumstance, this leaves open a valid search incident to arrest where evidence of the crime of arrest may be found in the vehicle, such as an arrest for a drug offense, but the Court makes it clear that this does not encompass an arrest for a traffic offense - you cannot reasonably expect to find evidence of driving under suspension, for example, inside a jacket pocket in the back seat of the car.
A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.
Scalia's concurring opinion is more straightforward and honest, and I agree with his analysis. He proposes that the Court completely do away with the charade of the Belton line of cases and overrule them.
When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means ofensuring their safety—and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car. . . .In my view we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. . . .
We should recognize Belton’s fanciful reliance upon officer safety for what it was: “a return to the broader sort of [evidence-gathering] search incident to arrest that we allowed before Chimel.”
Courts need to be honest in their analysis of cases - if we are going to have an exception to the Fourth Amendment for vehicles, to allow law enforcement more leeway in gathering evidence of crimes, we need to call it that. We don't need to justify it with a non-existent concern for officer safety - I am impressed with the majority opinion in Gant and even more so with Scalia's view. Gant's case is a perfect example of police using the Belton rule for general investigation where officer safety was never an issue - the police were at his house following an anonymous tip regarding drug activity. They knew his license was suspended. When he arrived at his house driving a car, they placed him under arrest, handcuffed him, and secured him in a patrol car. They then searched his car for drugs, which they found in a jacket pocket in the back seat. There was no probable cause to search the car for drugs, there was no concern for the officer's safety, and there was no evidence of driving under suspension to be found in his vehicle.
As I said at the beginning above, Gant is limited in its application, and the Court notes that there are many other exceptions to the warrant requirement that will apply in various circumstances. Although the Court does not address this, the biggest one will be the inevitable discovery rule and inventory searches. If a person is arrested for any reason and the car must then be towed, it will eventually be subject to an inventory search; because it will be searched anyway, courts will find it reasonable for the police to go ahead and search the vehicle. This means that Gant will only apply where the car is on the arrestee's property or where there is another licensed driver in the car - in which case the car will not be subject to towing and a subsequent inventory search.
More commentary on Gant across the blogosphere: A Public Defender, Jamie Spencer, Robert Guest, John Wesley Hall, Mark Bennett, Scott Greenfield, and Paul Kennedy.
