The 9/11 Exception To Gant

Question:  What’s a court to do when a search clearly and fundamentally violates the 4th Amendment’s prohibition, and falls squarely within the confines of a Supreme Court decision rendered just in the last term?

Answer:  Invent a new exception.

Eastern District Judge Nicholas G. Garaufis was not going to hold that police were required to place a backpack in their patrol car without knowing what was inside it.  The problem was that by the time the police searched the backpack, the defendant had been subdued and taken into custody.  The backpack was no longer within his reach, and there was no possibility that the defendant could take any action with it. Judge Garaufis had a problem in People v. Morillo.

While the Magistrate Judge (who conducted the suppression hearing) recognized that this case fell within the Supreme Court’s Gant,and the 2d Circuit’s Gorski, decision,


However, the magistrate judge asserted a different grounds for the search: There was “a reasonable risk to the officers that they were transporting something in their vehicle that could injure the handler.

Nothing about the contents of the bag suggested that contained therein was anything potentially harmful to the officers.  The problem was that they had no idea what, if anything, was in the bag.  Thus, the total absence of information of what the defendant might possess gave rise to a wholesale “reasonable risk” of harm.

And what did Judge Garaufis think of this “ignorance is bliss approach?”


Specifically, Eastern District Judge Nicholas G. Garaufis held that, in the post-9/11 world, the danger a backpack might pose while in the trunk of a police car justified an officer’s search of an arrestee’s bag, even though it was no longer within the defendant’s reach.

“The circumstances of this case fit squarely into this justification for conducting a warrantless search of luggage,” he concluded. “Morillo’s furtive and evasive behavior gave the officers reason to believe he was hiding something potentially dangerous in his backpack at the time of his arrest.”

The judge added, “Officer [Patrick] Finnegan testified that ‘I need to know what’s…in that backpack and also what’s going in my car as I transport it to the stationhouse.’ According to Officer Finnegan, this was necessary for the safety of himself, his partner, the prisoner and the people around.”
The echo of “9/11 changes everything” still rings rather loudly around New York, as it likely does elsewhere as well.  Before that, judges might have been reluctant, in the face of an information void, to permit the blind assumption that unknown contents of a backpack have such a strong potential to be harmful that they are, even when distant from the reach of a defendant, subject to warrantless search. 

What’s fascinating about this approach is that it gives police officers greater authority to search because of ignorance than they would have if they possessed information.  For example, if they were stopping the defendant because they believed he had just engaged in a narcotics sale, and the backpack contained narcotics, they could not search.  No way, no how.  Why?  Because the drugs weren’t a potential threat to their safety. 

But in this case, the police sought to stop the defendant for committing the heinous offense of riding a bicycle on the sidewalk, whereupon the defendant fled and a chase ensued.  They had no information that the defendant was violent, or possessed any contraband or weapon.  For those who ask, “well then, why would he flee,” it’s hardly unusual when a person is an illegal immigrant, or has an open warrant for smoking on the subway, to try to get away from the cops.  It doesn’t make them good people, but it doesn’t make them vicious criminals either.

Knowing nothing about the suspect beyond that he’s a bicycle offender who doesn’t want to get pinched, the court found it reasonable to fear that the backpack presented a danger to the police.  Ignorance= warrant exception, a remarkable equation.

So much for Gant. We’re back to “9/11 changes everything.”  Who needs information, or a basis to believe, anymore, when total ignorance vitiates all the rules.

H/T The Blind Guy

2 comments on “The 9/11 Exception To Gant

  1. Jonathan C. Hansen

    Fourth Amendment law is so riddled with exceptions and permeated with convoluted logic that an intelligent person, after reading the amendment and then the case law that has evolved, would be utterly confused. From the assumptions that the average person knows that he/she can just walk away when asked a question by a policeman, or that consent to search entails permission to have one’s body cavities explored or one’s automobile disassembled, the essence of the Fourth has evaporated. Seems like any residue left is about to be tossed in the circular file as well.

  2. Blind Guy

    I am pretty sure Gant was decided after 9/11 and I bet the Supremes had even heard about it. Maybe Judge Garaufis just wanted them to be certain.

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