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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.

Related Posts (on one page):

  1. Does Arizona v. Gant Extend Beyond Passenger Compartments?:
  2. 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?:
  3. One Lesson of Arizona v. Gant,
  4. The Holding of Gant, and Some Initial Questions as To Its Application::
  5. Supreme Court Limits Search-Incident-to-Arrest Exception:
Soronel Haetir (mail):
I think you're missing the entire point that the reasonable beleif is tied to the offense of arrest.

In that way I would think the standard would be closer to Terry.

Would a reasonable person think that evidence for the particular crime is in the vehicle? So far we have two answers, for driving infractions like a suspended license the answer is 'no' because there isn't really any possible further evidence.

In Thornton the answer was yes. I haven't looked at Thornton to see what the exact circumstances were but will give a specific example I think would be covered.

A person with an outstanding warrent for drug trafficking is pulled over and arrested, I believe Gant would allow a SIA.

Another person pulled over on a warrent for a year old bank robbery probably not. An hour old bank robbery the answer would almost certainly be yes. Where that yes turns to no is where the reasonableness question will have to get thrashed out.

A week but the same car? Two days but a different car?

And those issues are why I think this is close to Terry in that the reasonableness must be informed by experience.
4.23.2009 12:06am
OrinKerr:
Soronel,

Perhaps while you were typing, I amended my post a bit at the end to add or elaborate on this:

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.
I'm curious, how would you respond?
4.23.2009 12:13am
AMichiganWolverine:
Isn't reason to believe used in the arrest warrant context when entering the home of the person the warrant is for? Don't you need reason to believe (something less than probably cause) that the person is home? So perhaps there is a body of case law to draw on with that.
4.23.2009 12:20am
Soronel Haetir (mail):
I would respond by saying that most cases where the offense of arrest actually has evidence that could be found Gant would most likely allow the search. Again with the proviso of my bank robbery example that the reasonableness of there being evidence of some crimes drops off as time goes by.

Gant was a special case in that was no possibility of evidence being found that was in any way related to his suspended license.
4.23.2009 12:22am
Anon21:
Soronel Haetir:
Gant was a special case in that was no possibility of evidence being found that was in any way related to his suspended license.

Well, perhaps not such a special case. Pretextual stops, in which an officer pulls someone over solely for the purpose of rummaging around in his/her car to see if the officer can find evidence of non-specific criminal activity, will almost always rely on traffic violations. Thus, the same would presumably hold for arrests based on such pretextual stops, unless the interaction between officer and driver revealed some new, more serious basis for believing a crime has occurred, whether that be physical symptoms of impairment or identification as an individual wanted on another charge. I would expect Gant to significantly cut back on the number of car searches officers are actually able to perform, because a lot of arrests in these situations are being made for offenses for which no real physical evidence can possibly exist.
4.23.2009 12:28am
OrinKerr:
AMichiganWolverine,

Yes, that's the Payton case I discuss above.

Soronel,

I agree that there won't be a reasoable belief where there could be no belief -- that is, as you put it, there is "no possibility." I'm wondering about where the line is drawn, though.
4.23.2009 12:46am
einhverfr (mail) (www):
Although nobody ever cites oral argument, it seems to me that Soronel is absolutely right as the oral argument provides a great amount of context as to how THIS court might rule in the future. Of course, this does not impact how a different court might read the decision. Oral arguments however do shape the context of a decision and are often interesting to look to in order to understand what the Justices are tackling.

Scalia brought up in oral arguments the concern that it looked like the police used the arrest as an excuse to look for anything else they could charge the person with. This was a fishing expedition, and hence unreasonable.

This suggests that if someone is pulled over for DUI, a SIA would be permitted because often such a search would find open containers, etc. which although separate offences, are ALSO evidence of the main charge.

On the other hand, driving without a license. What are you expecting to find searching the car? The driver's license the guy didn't have? SIA would presumably not be permitted in that case.
4.23.2009 12:51am
Soronel Haetir (mail):
If I had to guess, while it will take time the police will figure out whatever magic words satisfy the judge, so long as the possibility of finding evidence related to the offense of arrest exists. And that will be the standard.

Just like Terry where very few searches are ruled inadmissable, I think the same will be true here.

It does change the landscape of pretextual stops a great deal though, either the officer has to not arrest ASAP the the offense they have or not arrest at all until they get consent. I see the most change coming from this in cases where there is an existing warrent for something, not traffic infraction pull overs.
4.23.2009 12:54am
BRM:
My impression is similar to what others have said here. I think it is an objective standard based on the specific offense of arrest. If that offense is one where additional evidence could reasonably be located in the car, then the search is constitutional. The offense of arrest opens up the possibility to search if it is a crime that would be objectively reasonable to find in the car of the person who committed the offense at the moment of arrest. In that case, the police wouldn't need any specific belief about the person actually being arrested.

I thought this was Scalia's entire concern in Thornton and I think it is the Court's concern in Gant.

The issue is clouded because often when a person is arrested from a car for a crime that could have evidence in the car (i.e. drugs, guns, other contraband), the police will have probable cause to search the car. (or else why would they be arresting the suspect?) If the police see you driving down the road smoking a joint, they have probable cause to search your car for drugs under the automobile exception. Likewise if they pull you over for speeding, see shotgun shells in the back seat, and learn that you are a felon.

The tough cases will be where the driver is pulled over for a traffic violation, but then arrested under an outstanding warrant for an underlying crime (such as drugs or guns) for which it would be plausible to find evidence in the car. I don't think Gant would support searching in that case, because offense of arrest occurred at a past time, and it would not be reasonable to find further evidence of the past offense supporting the arrest warrant in the car despite the intervening time.

But perhaps the "offense of arrest" in Gant is meant to be categorical. In that case, it is at least plausible to believe a car driven by a person wanted on an outstanding warrant for felon in possession of a firearm might contain firearms. If we end up in this situation under a categorical approach, then it could be important how likely it is in that specific situation to find evidence of the offense in that car at that moment.

To me, the easiest way to solve the issue, the most clear and perhaps what Justice Scalia has in mind, is to say that police can search if it is objectively reasonable that a car driven by a person just arrested from that car could contain evidence of the specific "offense of arrest" at the moment of arrest.
4.23.2009 2:07am
GV:
If history is any guide, lower courts will soon stretch the concept of "reason to believe" to the point of meaninglessness and will otherwise so riddle this new bright-line rule with exceptions that it will result in little practical change. The Government is already coming up with creative ways to avoid the reach of Gant -- for example, by relying on the inventory search doctrine and inevitable discovery. I'm sure this case will spawn lots of academic commentary where the Court is applauded for what it has done. But nothing will change. Given the state of current Fourth Amendment jurisprudence, it's nearly impossible to get a 4th amendment suppression motion granted, regardless of the odiousness of the police's behavior.

For better or worse, Americans are now comfortable with the police having lots of power that they could never have possessed in early 19th century America. It's a radically different country now, so maybe that's a good thing. But given that attitudes have so dramatically changed, in my opinion, there's little reason to speculate on what the Court actually meant with its "reason to believe" language. Lower courts will simply adopt the most anti-criminal-defendant interpretation possible.
4.23.2009 3:06am
MJH21 (mail):
Prof Kerr,

I think that the last really good discussion from the Court on what probable cause means was Maryland v. Pringle, 540 U.S. 366 (2003) where the Court said "We have stated, however, that '[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt' . . . ." Id. at 371. Sounds a lot like the "reasonable to believe" standard they talk about in Gant.

Anecdotal evidence only, but the circuit that I practice in - and others if memory serves me - takes the same view. See United States v. Hardin, 539 F.3d 404, 416 n.6 (6th Cir. 2008)("[G]iven that the [Supreme ]Court has treated phrases such as 'reasonable ground for belief' as defining probable cause. . . we believe . . . that 'reason to believe' is a functional equivalent of probable cause.")
4.23.2009 7:51am
Kenvee:
It seems to me that "reason to believe/reasonable belief" is necessarily a lower standard than probable cause. Both because of Alito's statement in his dissent, and more importantly because if the search was based on probable cause, it would already be admissible through the automobile exception and we wouldn't need to look at the SIA exception. I've been discussing this with a colleague, and the best we can come up with is that it's more than reasonable suspicion (because a belief is stronger than a mere suspicion) but less than probable cause.

As a practical matter, I can't think of a fact pattern where we would have slightly more than reasonable suspicion but not quite PC. It's just so nebulous. I have a feeling this will end up being judged by RS rules.
4.23.2009 9:30am
Soronel Haetir (mail):
Kim,

Amd that's why the tie-in to the offense of arrest is so important.

I do think it will be interesting to see if this devolves to some sort of categorical approach, though we've seen how well that's worked out with the Armed Career Criminal residual clause.
4.23.2009 9:35am
Bart (mail):
"reasonable to believe the vehicle contains evidence of the offense of arrest" appears to refer to documentation, tools or product of the crime.

In Rabinowitz, it was reasonable to search for the unlawful product for which the Defendant was arrested for selling.

I have just filed a Gant motion to suppress in a case where my client was arrested for DUI, handcuffed and placed in the back of the police car. Then the officer searched the passenger compartment in what was termed a search incident to arrest and found an otherwise lawful pistol in a locked glove compartment that the police broke open. My client was then charged with unlawful possession of of a weapon by a person who is impaired by alcohol.

With my client handcuffed in the back of a police car, the officer could not be lawfully searching for weapons.

As to whether it was "reasonable to believe the vehicle contains evidence of the offense of arrest," the only hypothetical reason I can conceive is to search the vehicle for alcohol my client may have been drinking. However, is it reasonable to search a locked glove compartment in a belief that my client may have been drinking that alcohol while driving?
4.23.2009 9:47am
Virginia C (mail):
Consider the entire relevant quote from Thornton on page 10 of the Gant opinion: "when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" I think the words "might be" are extremely important here. Its one thig to say that it was "reasonable to believe evidence relevant to the crime of arrrest WILL BE found in the vehicle" and quite a different thing to say that it was "reasonable to believe evidence relevant to the crime of arrest MIGHT BE found in the vehicle." The meaning of the statement, read as a whole, conveys more of a "maybe" standard (reasonable suspicion) than a "probably" standard (probable cause).
4.23.2009 9:58am
jccamp (mail):
At the risk of going slightly off the OP, I would like to point out that in the situation of defendant Gant, had this occurred in Florida, possessing a suspended driver's license is a misdemeanor separate from driving with a suspended license. One element in either crime is whether the defendant had knowledge of the suspension. The officer(s) could have conducted a search of the vehicle for either the license itself - if it were not already found in Gant's possession - and also the mailed notice from DMV of the suspension. In the related scenario of a fail-to-appear (in traffic court) or fail-to-pay-ticket warrant, officers could have searched for the mailed notice of court appearance date. So, even though a traffic offense was the cause for arrest, there in fact may be evidence available to justify a search incident to arrest.

Although, at first consideration, the presence of such mailed notices in a defendant's auto seems non-intuitive, I think most officers would attest - and testify to - such common presence, maybe because most people put the notices in the car with the intention of actually paying the fines, appearing in court, etc, but fail to follow up.

If the arresting officer were to avail himself of this opportunity to search, then it's not a pretext. It is a lawful exercise, and if evidence of additional - and presumably more serious - violation of law are found, then I suggest that everyone benefits except the moron who broke the law and created the evidence to be seized.

And, returning to the OP, I would have assumed PC to be the burden to be met in such search. I'm not sure now what to say in my next class.
4.23.2009 10:01am
33yearprof:
The Supreme Court's Fourth Amendment case law has done more to convince American's the "constitutional right" is meaningless and that the Justices are deciding cases based on their biases (cops are "professionals," cops shouldn't fear liability -- good faith &qualified immunity, cops are never thugs, etc).

The Supreme Court isn't supposed to be a group of teen aged police "groupies" but intellectually bankrupt theories like those (whatever they are) espoused in this case certainly erode the security a citizen may have in the Bill of Rights. Add in "rational basis" review (the anything beyond a pack of "gibbering monkeys" is OK standard) and there is nothing left. Gant is the outlier.

The rule is THE POLICE WIN on whatever theory is necessary to justify the desired result. Ah, ... result-oriented trash. You can only fool the public for so long.
4.23.2009 10:01am
Soronel Haetir (mail):
33yearprof,

Something I found striking from the opinion was the listing of how many times the Court has wavered in this area, first moving one direction then back.

It seems very different from say 8th amendment decisions which seem to be moving in just one direction. 4th amendment jurisprudence seems to be a huge pile of maybes and special cases and exceptions and and and ...
4.23.2009 10:08am
33yearprof:
The officer(s) could have conducted a search of the vehicle for either the license itself - if it were not already found in Gant's possession - and also the mailed notice from DMV of the suspension. In the related scenario of a fail-to-appear (in traffic court) or fail-to-pay-ticket warrant, officers could have searched for the mailed notice of court appearance date.


Be realistic. How many people receive their mail at their car? How many store their mail in their car? Only the defendant not the thousands of other traffic stop "customers" whose privacy is INVADED by fishing police officers. The Constitution is supposed to protect those thousands as well as the defendant (it's the nature of appeals court work that the appealing defendants ARE always guilty; that fact should be meaningless to the court's legal review).

A Fourth Amendment that is reduced to verbal jousting about gibberish, is worthless on the street. Except to the police, of course.
4.23.2009 10:15am
jccamp (mail):
Actually, it is very common to find notices of suspension and notices of court dates in automobiles, shoved in with the insurance and registration. As I said, people put the notices there intending to do something - go to court, pay the fine, whatever - and never follow through. I don't claim it's logical. I do claim it's commonplace.
4.23.2009 10:21am
jccamp (mail):
And, on that subject, many people with marginal life styles don't have checking accounts, for instance. They pay their bills in cash or money orders every month. A check of their automobiles will turn up all kinds of paid and unpaid mailed notices and bills, for utilities, rent, court dates, car insurance, and tickets, among others. Lack of car insurance, missed court dates and unpaid tickets are the primary cause of license suspensions.
4.23.2009 10:29am
Xenocles (www):
"reasonable to believe the vehicle contains evidence of the offense of arrest."

Not to sound stupid or out-of-date here, but aren't you supposed to have evidence of an offense prior to the arrest?
4.23.2009 10:32am
Visitor Again:
"Reason to believe" means reasonable, the standard of the fourth amendment. The belief must be reasonable. Singularly unhelpful, I know, but so is the Court's opinion. I hope it means more than the standard of a Terry stop; that standard means nothing. The police stop who they want when they want and worry about legalities later.

In its attempt to accommodate the police, the Court went way too far on automobile searches. Now it is retrenching, but it is creating an unholy mess for the police, lawyers and the courts as well as the public, which undoubtedly is entitled to know with clarity when and when not they are subject to police invasion of their privacy. With the possible exception of Scalia--and this is one of the few times I've agreed with him--they don't have the guts to say what needs to be said.

The Founding Fathers would have been horrified that the police could become a roving paramilitary force stopping every traveller for the most minor of traffic violations and then searching the entire vehicle for evidence or weapons. Probable cause, if not a warrant, ought to be required for vehicle searches. Vehicles could be safeguarded while a warrant is sought by telephone, computer or other communicative means. I'm shouting in the wind, but that's my view.
4.23.2009 10:34am
jccamp (mail):
33yearprof -

And, to judge from whit's postings, at some states tend to agree with you and have limited law enforcement search options and opportunities. Police officers, with good-faith motives, tend to do the maximum allowable under law when it comes to exercising authority. You really should reserve your criticism for the lawmakers who create the environment, not the cops who have to function within it.

Gant seems to be a perfect example of officers exercising previously allowed behavior, and having their seizure suppressed. Paraphrasing the one quoted officer, I did it (searched) because I could (lawfully). I don't see his statement as grounds for criticism. He didn't make the rules. He simply operated under them.
4.23.2009 10:37am
jccamp (mail):
"Not to sound stupid or out-of-date here, but aren't you supposed to have evidence of an offense prior to the arrest?"

For instance, if a person is arrested for DUI, based on his/her physical condition, odor of alcohol, etc, officers can then search the vehicle for further evidence, like a fifth of bourbon on the seat. In someone is arrested for bank robbery, shortly after the alleged robbery occurred, a search of the car may be allowed for additional evidence like fruits of the crime, instrumentalities, etc. (although in this situation, a warrant would probably be better. Why take a chance?).
4.23.2009 10:42am
Xenocles (www):
@jccamp:

Perhaps, but in this case the original arrest was for driving with a suspended license. Surely the police already had all the evidence they needed to make that arrest without searching the car. The eventual drug charges resulted, as I read it, solely from the evidence recovered in the search.

There's no reason to believe that waiting for a warrant would result in the destruction of any evidence. If the police had "reason to believe" there was evidence of further crimes in the car surely they could have posted an officer at the car and talked to a judge.
4.23.2009 10:55am
33yearprof:

There's no reason to believe that waiting for a warrant would result in the destruction of any evidence. If the police had "reason to believe" there was evidence of further crimes in the car surely they could have posted an officer at the car and talked to a judge.


Yes. In the era of RADIO, cell phones, and squad car computers there is NO reason anymore for the "open season" rule regarding vehicles. A warrant can ALWAYS be obtained before the evidence can be driven away. The S. Ct. needs to acknowledge that technology has eliminated the justification for the exception (from 1923 or so???).
4.23.2009 11:18am
pintler:
How often is the search an issue? IIRC, people give consent to search 90+% of the time.


[I have a nephew who lives near Yellowstone, and frequently transits the park in a car w/ 3 other students, on a climbing or ski trip. He reports they are routinely pulled over and asked for permission to search, apparently on the theory that 4 college students in Yellowstone must have drugs. He says they always consent rather that wait two hours for the dog. He considered this to be a normal part of life. I find this very sad.]
4.23.2009 11:59am
jccamp (mail):
Xenocles -

Well, you're right of course, as to the implications of Gant. The officers didn't search for additional evidence of the original crime, which was driving with a suspended license. They based their search on the theory that they were looking for weapons within reaching distance of the suspect, even though the suspect was now safely ensconced within a police car, handcuffed. Automobiles continue to represent an exception to normal search warrant requirements, on the theory that an auto can be quickly moved and any evidence within spirited away from the authorities. In addition, an auto may be searched "with reasonable belief" that evidence relating to an arrest may be contained within. In that case, officers are not looking for probable cause on which to base an arrest; they already have established that and have made an arrest. They are looking for additional evidence related to the same offense, such as the fruits of the crime, instrumentalities of the crime, etc.

Whether, as the 33yearprof maintains, modern technology has rendered the necessity for this so-called Carroll Doctrine exception void is another question.
4.23.2009 12:11pm
jccamp (mail):
33yearprof -

Yep, U S v Carroll (or was it Carroll v U S?) a 1925 moonshine case, I believe.
4.23.2009 12:21pm
Soronel Haetir (mail):
Pinkler,

Wouldn't a two hour delay without some level of cause be unreasonable? I thought the limit was somewhere around 15 minutes?
4.23.2009 12:21pm
jccamp (mail):
2 hours sounds pretty unreasonable to me, too. Of course, I don't suppose a carload of college kids would be very successful arguing that POV with a park ranger. And the 2 hours may be grossly inflated to pressure for a consent, hard as that is to believe.
4.23.2009 12:27pm
pintler:

And the 2 hours may be grossly inflated to pressure for a consent, hard as that is to believe.


Indeed. I have read of anecdotes from other sources where people say 'Well, I'm not in a hurry, if you're going to detain me for 2 hours, so be it' and are promptly released.
That doesn't make me less sad :-(

As to the reasonableness, this is Yellowstone, so there are a lot of square miles and not so many drug dogs, if that matters.
4.23.2009 12:45pm
Gabriel McCall (mail):
Looking purely at the literal meaning of the phrasing, I don't see very much to distinguish "reason to believe" from "reasonable suspicion".
4.23.2009 1:36pm
Profane (mail) (www):
As others have noted, a 2 hour wait seems to be inherently unreasonable.

Would a Secction 1983 lawsuit be viable if that was a consequence of a refusal of consent? Would this fail on the issue of no 'clearly established law'?
4.23.2009 1:37pm
GA Onlooker:
pintler, discussions of two hour waits after a refusal to consent could be viewed as coercive as well, notwithstanding facially unreasonable.
4.23.2009 2:25pm
whit:
gabriel, etc.

IME, the word "believe" suggest probable cause, not reasonable suspicion. over and over again, i see cases where it is reasonable to SUSPECT referencing reasonable suspicion/terry threshold and reasonably BELIEVE to reference probable cause.

BELIEVE vs. SUSPECT i have seen over and over again. the former suggests PC, the latter suggests RS.

i don't have any specific cites, although i could probably find some in both WA and HI (states where i have worked), but the pattern seems consistent on the difference between believe and suspect.

and from a common sense basis, it also works.

if i reasonably BELIEVE a person committed a crime, that is much more suggestive of probable cause.

if i reasonably SUSPECT a person committed a crime that is much more suggestive of reasonable suspicion.
4.23.2009 2:45pm
r.friedman (mail):
The source of the "reason to believe" standard is Tim Hardin's song of the same name, performed by Rod Stewart among others.

It is transparently obvious that the one trying to find "reason to believe" (the judge) have been "lied to", "straight-faced" (by the police). That this is the intent can be seen by the fact that the main impact of the case is to reduce the value of pretextual stops by police (no search for evidence of a broken taillight). In his concurrence, Scalia is clearly crying over violated rights.
Furthermore, Stevens found "a way to leave the past behind."

Neither Stevens nor Scalia consider this a close decision, making it "easy to give", and since Supreme Court justices are never involved in traffic stops, it follows that they were "never thinking of myself". QED
4.23.2009 5:07pm
einhverfr (mail) (www):
33yearprof:

Yes. In the era of RADIO, cell phones, and squad car computers there is NO reason anymore for the "open season" rule regarding vehicles. A warrant can ALWAYS be obtained before the evidence can be driven away. The S. Ct. needs to acknowledge that technology has eliminated the justification for the exception (from 1923 or so???).


This is my view.

Carrol v. US was from 1925. In 1928, the first ONE-WAY police radio system was installed. In short, for the police officer to get a search warrant, there would have been a long delay, one officer remaining (alone) at the scene, etc.

My paraphrasing of Carrol in vulger English is:

"Yes, probable cause is required to conduct this sort of search, and geeze it would be nice if warrants were practical. But you know, there are other cases where warrants are not practical and hence we don't require them and these cases are similar to what we see here."

The big problem though with overruling Carrol as much as I support that is that it would be immensely disruptive. It seems quite possible that a very large number of searches would be suddenly suppressed. However, if it field warrants end up being streamlined from a process point of view, it might be possible to have a slow erosion of that standard (first requiring a warrant if practical and processes are in place, then tightening this slowly so as to be as non-disruptive as possible).
4.23.2009 7:49pm
whit:

The big problem though with overruling Carrol as much as I support that is that it would be immensely disruptive. It seems quite possible that a very large number of searches would be suddenly suppressed. However, if it field warrants end up being streamlined from a process point of view, it might be possible to have a slow erosion of that standard (first requiring a warrant if practical and processes are in place, then tightening this slowly so as to be as non-disruptive as possible).



from a practicality standpoint (and i realize the law and practicality are rarely friends), um... things would need ot changed in a big way.

i know some officers that probably average at LEAST 1 vehicle search a day (incident to arrest).

imagine if every single one of those vehicle searches (incident to arrest) by every single officer who had PC to do one had to go through the courts.

either... the process would have to be significantly streamlined AND we would have to hire more judges

your average patrol officer would be tied up also much longer doing these things. you can do a stop, arrest, search, and release/cite in 15-30 minutes on a suspended license. a warrant can easily quadruple that time.


or...

cops simply would stop doing them because they would be too much of a pain.

generally speaking, imo, the best way to deter police action is to require tons of paperwork for that action. seriously. there is no better disincentive for police officers.

i know cops who work night shift and haven't done a DUI in YEARS. why? too much paperwork.

fwiw, i have had a lot of success with consent searches by simply telling people "i believe i have probable cause to apply for a search warrant, will you consent to a search of your vehicle".

as long as you use the word "apply" NOT get, it does not vitiate the voluntariness, and there you go.

we had to do that in hawaii, since we COULDN'T search vehicles incident to arrest PERIOD in hawaii.
4.23.2009 10:22pm
Just visiting:
@jccamp:


If the arresting officer were to avail himself of this opportunity to search [for mailed notices of suspension of license], then it's not a pretext.

Come on, yes it is. It might be a nice way of getting around the Gant rule if you can convince a court that the sort of marginal folks who don't have meaningful Fourth Amendment rights anyway usually carry all their paperwork around with them in their car, but we all know it is still essentially a pretext and a fishing expedition.
4.24.2009 10:35am
Benjamin Wolf (mail) (www):
New York's interpretation its State Constitution has been stricter on the police than SCOTUS' Belton decision. I wrote a postexploring whether the Gant decision made the Supreme Courts SILA rules stricter than, more lenient than, or the same as New York's existing law. I concluded that even after the Gant decision, their rules are still more lenient than New York's and therefore New York SILA jurisprudence will probably not be affected by Gant. Click here.
4.27.2009 1:04pm

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