It’s unusual when the Supreme Court hands down three major 4th Amendment decisions in the same term.  It’s more unusual when one suggests a major limitation on the exclusionary rule, while another is one of the most pro-defendant cases in recent memory.  And it’s just damned weird when Antonin Scalia, who penned his own diatribe against the exclusionary rule just a few years back in Hudson v. Michigan (discussed here), provides the 5th vote for the pro-defendant case.  In light of all that, it might be appropriate to ask where the Court is headed on search and seizure issues.

One of the three decisions, Arizona v. Johnson, doesn’t really count:  it was a unanimous decision holding that if the cops lawfully stop a car, they can frisk a passenger if they believe he’s armed and dangerous, even if the stop had nothing to do with the passenger.  This was simply an extension of the logic of Brendlin v. California that when a car is stopped, that constitutes a “seizure” for 4th Amendment purposes of any passenger in the vehicle.  Actually, as I mentioned both after oral argument and when the decision came down, the case was a victory of sorts for defendants, if only because the government was pushing for a holding decoupling a stop from a frisk:  the police could frisk anyone they believed was armed and dangerous, even if they had no basis for believing that they were engaged in criminal activity.

It’s hard to put a happy face on Herring v. US, however.  As I mentioned in my discussion of the opinion, I found the result far less problematic than Chief Justice Roberts’ suggestion that the exclusionary rule should be limited to cases of “deliberate, reckless, or grossly negligent” police conduct.  One concern I’ve expressed over the past several years is the possibility of the Court’s extending the good-faith exception to warrantless searches.  The 6th Circuit came close to doing that in a case I wrote about three years ago, and the 10th Circuit did much the same thing in a decision I talked about yesterday, US v. McCane. 

While I discussed McCane in terms of the 2nd Amendment argument raised in the case, there was also a 4th Amendment issue, which brings us to the third of the big Supreme Court cases, and the most unabashedly pro-defendant one, Arizona v. Gant.  Twenty-eight years ago, in New York v. Belton, the Court created a “bright-line” rule that the police could search the passenger compartment of a car after the defendant had been arrested.  Gant overruled that, holding that once the defendant had been secured away from the vehicle, the police couldn’t search it unless they had reason to believe it contained evidence of the offense of arrest.

McCane presented the situation where the defendant’s arrest and the search of his vehicle took place before Gant, and was clearly permissible under Belton, but not under Gant.  The McCane court took a novel, if questionable, approach to resolving this.   Citing extensively to Herring, the court held that a “good-faith” exception applied here:  the police reliance upon settled law was reasonable, and no purpose would be served by excluding the evidence just because the Supreme Court had changed its mind.

Although the same situation — pre-Gant conduct reviewed post-Gant – has occurred here in Ohio, none of the courts have gone the route of the 10th Circuit.  In State v. Thomas and State v. Clay, the 8th District tossed searches which clearly ran afoul of Gant.  In State v. Hopper and State v. Gove, although the search was conducted after the police had secured the defendant, the 8th rejected Gant arguments, and correctly so:  in both cases, there was evidence that drugs were in the car, a scenario Gant explicitly contemplated authorizing a search.

One of the problems I’d mentioned with Gant is that police might be able to get in through the inventory exception what they couldn’t get in through search incident to arrest:  if the defendant driver is arrested, the police will often impound the vehicle, and can thus argue that any evidence would have been inevitably discovered during the inventory search.  That was the thrust of Judge Gallagher’s dissent in the 8th District’s decision a few weeks ago in State v. Thomas.  The problem with that argument was that, as the majority notes, there was nothing in the record to indicate that the car was illegally parked, which would have given justification for a tow.  The police argued that it was their policy to tow a vehicle if the driver was arrested for a suspended license, as happened here, but that’s not dispositive:  the question isn’t what the policy was, but whether the police had the right to impound the vehicle.  Still, Gallagher’s point is made, and it’s an issue which could undercut much of Gant’s effect.

So what’s to be made of the 4th Amendment after this term?  Perhaps more telling is another trio of cases, which also includes Gant.  In three cases this past year, the Supreme Court overruled a prior decision.  Gant overruled Belton.  Montejo v. Louisiana (discussed here) overruled Michigan v. Jackson, which had held that once a defendant asserts a right to counsel at a court appearance, the police can’t initiate any further interrogation of him.  And Pearson v. Callahan (discussed here) overruled Saucier v. Kurtz’s holding as to the procedure to be utilized in determining qualified immunity in §1983 suits.  I can’t remember a term in which the Court overruled three precedents.  Their willingness to do so, plus the unknown that nominee Sonia Sotomayor presents on criminal cases, poses the possibility of further restrictions on the exclusionary rule in the future.