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.
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.
Related Posts (on one page):
- Does Arizona v. Gant Extend Beyond Passenger Compartments?:
- 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?:
- One Lesson of Arizona v. Gant,
- The Holding of Gant, and Some Initial Questions as To Its Application::
- Supreme Court Limits Search-Incident-to-Arrest Exception:
Excuse me while I pick my jaw up off the floor.
Then, maybe, I'll have something insightful to add.
I've never read a concurring opinion in which the Justice clearly that he disagrees with the opinion that he's joining. The cojones on that man . . .
Their not on the same side, Scalia just prefers to be wrong like Stevens not wrong like Breyer (while all the while maintaining that they are both wrong and that he is the only one on the Court with the right answer).
This is one for the ages.
Tiochfaidh ar la!
Presumably, they're going to tow the car anyway, so the only difference is the cops will search the car at a lot rather than on the side of the road. I don't see why they wouldn't go this route.
Does this decision impact on that practice as well? What makes a post-towing search reasonable if there's no officer safety issue nor reasonable suspicion of evidence?
Since current Fourth Amendment jurisprudence offers many opportunities for the federal government to avoid the warrant requirement, I don't see how incorporation would help.
I agree that the current law is a bit of a mess, but when you have a standard as vague as "reasonable," that seems like a foreseeable issue.
Perhaps to ward off the "he says he's an originalist, but he joined the majority in ____" complaints.
Because there is intrinsic value in being right, even if you can't convince anyone else that you are right.
At any rate, I think it's valuable for future lawyers, judges and academic-types to have his semi-concurrence on the record at the very least as an exercise in how the 4A might be construed.
Let me see if I can remember... there are three justifications:
1) Preventing claims by prisoners that something was stolen/damaged while the cops had it
2) Preventing contraband from entering wherever (although I think that's more needed on inventory searches of persons and effects when arrested)
...
can't remember the third one, sorry.
Indeed, you have tension between creating uncertainty by having vague standards or having strict standards that do not properly capture the nuances of each individual case. The framers obviously chose the latter, for good reason.
It already came; they lost.
On topic: does the "reasonable expectation of evidence" plank limit the applicability of this? Every traffic stop just needs to be for erratic driving and there's reasonable expecation that you'll find booze or drugs in the car.
In this particular case, the car was in the suspect's driveway at the time he was arrested. I don't know if the police would have really had any justification to tow it.
Excuse me while I pick my jaw up off the floor."
Anyone who would need to "pick [his/her] jaw of the floor" after seeing that lineup is not very familiar with the Supreme Court. This is the Apprendi 5 -- look it up. These five have been together on the most important criminal procedure cases in the last decade -- most notably Apprendi, Ring &Blakely. They are the five who favor bright line rules, while the other four are more wishy-washy and like balancing tests and the like. A few years ago, there was quite a bit of writing about this -- how the Apprendi split signaled a split amongst formalists (the Apprendi 5) and pragmatists (being Breyer, Kennedy, Rehnquist &O'Connor -- not totally clear yet whether Roberts and Alito are like the WHR &SOC).
Is it the offense for which he was arrested (suspended license) or the offense for which he was pulled over that counts?
I'm still digesting the legal arguments on this, although my tentative thought is that it seems like a correct analysis. You can't search a whole house incident to arrest, just anything in the defendant's immediate reach. So you shouldn't be able to search a car when the defendant can't reach any of it. But just on a practical basis, this is going to have a big impact, because it's an exception the police use a LOT.
Good point, I missed that from my first pass through the opinion.
Presumably, Justice Kerr would agree with that preference, at least.
Officer may order you back into the vehicle for his safety, but if you live in a free state where such things are allowed, a nice reply would be "there's a loaded firearm in the vehicle - I figured you'd be happier with me out here and it in there". :)
because that would be dumb from an officer safety standpoint. i'm certainly not going to do it. ever.
if they want to eliminate search incident for MV's, more power to them. i get paid by the hour, not by how much evidence i get.
As a non-lawyer, even this exception boggles me. Why can police say, "Oh, there might be some evidence in this car. Let's search it without a warrant to see!"?
Wouldn't the same justification hold true for homes? "Oh, there might be some evidence in this guy's home. Let's search it without a warrant to see!"
Why should a car be treated any different than a home, a safe deposit box, an office, etc.? To me, I'd favor this bright line: No warrant, no search. Period. If you are afraid someone else will drive away with some evidence in the car, have a couple of cops watch the vehicle while you get a warrant to search it.
they can say it WITH the understanding that there already was probable cause to believe a crime in regards to that evidence had been committed AND they made the arrest. hence, search incident
in the case of a home, a warrant is required (sans exigency) because a home (the contents) has a HIGHER expectation of privacy than a car. the former is recognized as "your castle", and from a common sense standpoint, most of us think of our home as much more private than our car. furthermore, a car is mobile etc. and a home isn't. iirc, this came from (among other places) the carol doctrine.
you can favor whatever you want. the constitution doesn't REQUIRE warrants for all searches. read it. it requires they be reasonable.
As in Cady, there is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.
You aren't salaried?!
Of course not. If you salary the police officers, they have no incentive to conduct illegal arrests that then earn them overtime when they go into court to testify regarding what laws they broke.
no police agency i have ever heard of is salaried (in the respect that there is overtime paid for hours worked - we are not salaried).
in many agencies, certain ranks ARE salaried, like captain and above.
of course captains aren't expected to do any actual POLICE work anyway.
Another thing I don't understand is how someone could be "arrested" as that is commonly understood and yet still be within reaching distance of the passenger compartment. Is that only for situations where the suspect is arrested AFTER the search? As whit pointed out, wouldn't this increase the risk to the officer? "Please, just sit there with your hands on the wheel while I look through your backseat." Who's going to do that?
Re-read Hamdi v. Rumsfeld....
4 Justices (O'Connor, Rhenquist, Kennedy, Breyer) delivering the opinion of the court.
2 Justices (Souter, Ginsberg), delivering a concurring opinion where they state they agree with a different dissent (Scalia/Stevens) but join the opinion of the court anyway.
2 Justices (Scalia/Stevens!) dissenting, stating that the court didn't go far enough in protecting due process rights.
1 Justice (Thomas) dissenting (and disagreeing with everyone else), arguing that detention of Hamdi for the duration of hostilities and without further process would be Constitutional.
I see a bigger issue:
If the search occurs prior to the arrest, you don't know whether the arrest caused the search or vice versa. So IMO, the 4th Amendment would require a search incident to arrest to occur after the arrest.
It would also seem to strike the officer safety issue except in unusual circumstances, but would allow for such searches if the offence was of a certain type where evidence would most likely be found in the vehicle (DUI, etc).
That seems to be what it boils down to - it severely curtails the possibility of a LEO executing a licit fishing expedition.
Repeat after me everyone:
"I do not consent to a search."
I wonder if Carrol should be revisited. After all it was decided three years before any radio communications were available for police officers. Now we have a great many more tools to help facilitate getting warrants without necessarily having to leave the car unsecured (the rationale behind Carrol).
It seems to me that revoking the motor vehicle exception, absent unusual circumstances would not require repealing Carrol but simply reading into it the idea that warrants are good, and that the circumstances applicable to Carrol are no longer commonplace.
Sorry, I really wish you were correct but not so much.
Past SIA doctrine has always assumed that officers were allowed to assume that a captive might escape when searching for possible weapons for their own safety.
That seems to be the biggest change here.
Well, at least your car cannot be searched now as a result of a seatbelt violation!
Sure it can, just pull the motorist over on the road for a sb violation (ala Atwater v. CoLV). Arrest the driver. Oops, now the car is parked in the middle of the road and needs to be towed -- presto inventory search exception!
So, infractions like speeding, failure to wear a seatbelt, etc., can't result in your arrest. Also, interestingly, the failure to wear a seatbelt cannot alone be cause for stopping a driver. See Idaho Code 49-673.
That case existed in Texas, and turned on the fact that Texas provides broad authority to officers to arrest folks for misdemeanors. Idaho law is irrelevant.
You CAN be arrested for a sb violation in Texas, but not in Idaho, I guess.
i would bet dollars to doughnuts that SOME misdemeanors not in your presence are arrestable.
DV crimes for instance?
i don't know idaho law, but unless they make DV a felony, there would be no way to arrest on PC for a DV assault.
and lord knows that aint the case.
And you're right,einhverfr, Idaho law is irrelevant to that Texas case cited by Oren. But since he cited it in response to my initial statement, isn't it more correct that his case is irrelevant to MY statement? First in time, first in right? :)
Sometimes I wish I could put a little :) in a legal brief without the judge thinking I'm a total nincompoop. Not likely.
I suppose. Perhaps it would have been better to clarify that "you can be arrested for a seatbelt violation if your state's laws say you can."
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