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Bye Bye, Belton?

I'm not sure what all the signs of the Apocalypse are, but right after Pestilence and Famine has got to be Antonin Scalia providing the majority for  a pro-defendant 4th Amendment decision.

One of the well-recognized exceptions to the warrant requirement is search incident to arrest.  The evolution of that has involved some twists and turns, but in 1969 the Court finally settled on a formula in Chimel v. California:  the area which could be searched was limited to the arrestee's person and those areas from which he could gain access to a weapon or evidence.  Twelve years later, the Court was confronted with the question of how that applied to the arrest of an occupant of an automobile, and held in New York v. Belton that the police can search the passenger compartment of the vehicle, including any closed containers found inside.

Belton seemed more motivated by the desire to create an easily understandable "bright line" rule than fidelity to Chimel's principles.  The Court acknowledged as much just five years ago in Thornton v. US; rejecting the defendant's argument that the search in his case was invalid because police had not initiated contact with him until he'd gotten out of the car, the Court noted "the need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment."

A clear rule is what they got, but the intervening 28 years have seen Belton's rationale stretched beyond the breaking point.  One example of that was Arizona v. Gant, the case the Court handed down on Wednesday. 

The facts in Gant were typical of many post-Belton cases:  the police had arrested Gant in his driveway after he'd gotten out of his car, on a warrant for driving with a suspended license.  After he'd been handcuffed and placed in the back of a police cruiser, the cops tossed the car, finding a gun and drugs.  The Arizona courts threw out the search, and on Wednesday five justices agreed with them. 

Actually, not even the four dissenters -- Breyer, Alito, Roberts, and Kennedy -- could muster much of a defense for Belton's rationale, concentrating instead on the virtues of Belton's bright-line rule, and the fact that the Court was overruling Belton, even though Gant had never asked them to do that.  In fact, that's where Scalia comes in.  Stevens' opinion for the other four makes much of the "broad reading" that Belton has been given in the past three decades, and argues that reading isn't justified by the facts of the typical search incident to an occupant's arrest; according to him, the Court is simply giving an interpretation of Belton which is more justifiable, by holding 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.

Scalia's view is far more restrictive:  while acknowledging the danger to police officers at a traffic stop, he points out that danger is at its height at the initiation of confrontation, but is eliminated completely by the removal and arrest of the occupant.  Once that happens, officer safety is no longer at issue, and Scalia would then limit the search of the vehicle to situations where "the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred."  As for Alito's protest that the Court should demand good reason for overruling precedent, Scalia acerbically notes that "it seems ample reason that the precedent was badly reasoned and produces erroneous (in this case unconstitutional) results."  Scalia would flat-out overrule Belton, but in order to avoid leaving "the governing rule uncertain," he joins with the majority.

So what to make of all this?  There's a temptation to read Gant rather broadly, and some justification for doing so; obviously, a lot of the searches that were upheld under Belton aren't going to pass muster now.  Still, there's some wiggle room.  First, what happens if there are multiple occupants of the car, but only one is arrested?  Arguably, the concern for officer safety would be heightened in that situation.  (In fact, that mirrors the situation in Belton, where a single police officer was dealing with four occupants of a vehicle, one of whom had an outstanding warrant.)  Second, while Gant obviously precludes a search where the defendant is handcuffed in the back of the police cruiser, what if he's still in the area of the car?  As I mentioned last year when the Court accepted cert in Gant, a ruling striking down the search "could lead to the unintended consequence of the police not securing a defendant just so they have the ability to search the car."

Finally, the big loophole in Gant could be the other exception to the warrant requirement:  the automobile exception.  Gant makes clear that the police can still search the car "if it is reasonable to believe the vehicle contains evidence of the offense of arrest."  That's not going to cut it if the offense is a traffic violation, like Gant's, but the decision is probably going to have much more limited application to drug arrests.


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