Car searches, Round 2
As Justice Frankfurter put it in a concurring opinion back in 1961, "the course of true law pertaining to searches and seizures has not -- to put it mildly -- run smooth." That's been particularly true of vehicle searches. The automobile exception and the inventory exception were created to deal with the special problems that cars presented to traditional 4th Amendment jurisprudence. Search incident to arrest has also presented problems. The purpose of that exception, of course, is to allow the police to search a defendant or the immediate area around him for weapons, contraband, or evidence, to prevent him from gaining access to those items. While the search of the person himself is clearly permissible, what if he was just taken out of a car? Can the police search the car, too? And, if so, what portions? Just the area was occupying? A glove compartment?
Back in 1981, the Supreme Court pretty much threw up its hands at all this and, in New York v. Belton, adopted a "bright-line" rule:
We hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile... It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach... Such a container may, of course, be searched whether it is open or closed...
As a reading of the opinion in Belton makes clear, the driving force was a desire for simplicity: everybody would know exactly what could be done. And that's been the law for over a quarter century.
Flash forward to 1999, where a couple of Tucson police officers go to arrest someone they suspect of drug trafficking. When they get to his house, they see the suspect pull into his driveway, get out of his car, and walk toward them. They promptly arrest him, handcuff him, and put him in the back of the police cruiser, then go about searching the car, finding a gun and a plastic baggie of cocaine.
This was a bit too much for the Arizona Supreme Court, which tossed the search. It distinguished Belton on the basis that that case dealt only with the boundaries of a search incident to arrest, while Gant presented the question of whether such a search was necessary at all; while in Belton, the four occupants of the car were standing by the roadway at the time of the search, and arguably could have re-entered the car and gained access to a weapon or destructible evidence, Gant, from his position in the back of a cruiser, handcuffed and under the watchful eye of a police officer, posed no danger of doing that.
How this is going to play out in the US Supreme Court is another matter. One of the clues might be how the latter court framed the issue, granting cert on the following question:
Does the Fourth Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured?
The facts in Gant are about as unfavorable as they could be to the prosecution for a case on this: there was no probable cause to search the car, it was legally parked so it wasn't going to be impounded and subject to a later inventory search where the gun and drugs would have been found anyway, and there was no connection between the car and Gant's arrest; it makes no more sense to have searched his car after he exited it and walked away from it than there would be to have searched his car if he'd just walked out the front door of his house. On top of that, the only way Gant would have less access to the car at the time of the search is if the police had already transported him to the station.
So why'd the Court take the case? Given what they said in Belton, it's hard to believe that they're going to require a police officer to make an on-the-spot determination of whether there's a "threat to safety or a need to preserve evidence." They could adopt another "bright-line" rule: when the defendant has been handcuffed and no longer has any access to the car, there's no longer any basis for searching it incident to arrest. But that creates a whole 'nuther set of potential fact situations, and could indeed lead to the unintended consequence of the police not securing a defendant just so they have the ability to search the car.
If I had to guess, I'd say that the Court's going to focus on the "recent occupant" part of the equation, and hold that as long as the defendant hasn't been transported from the scene, the police still may search his vehicle incident to that arrest. That has the sole virtue of simplicity, and one might legitimately argue that that virtue is not sufficient to overcome the damage such a decision would do to any logical construct of Fourth Amendment law, particularly as it applies to cars. Then again, one might legitimately argue that there's not much damage left to be done.
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