There were parties across the practical blawgosphere last night, following the Supreme Court’s shocking decision in Arizona v. Gant. From Grits to Bennett, Spencer to Guest, Even Gideon and the Pope. That our very own Supreme Court of the United States restored to the people a liberty that had been lost since 1981 is cause for celebration. That my simpatico buddy, Antonin Scalia, wrote a separate concurrence to complain that the four justice majority led by Justice Stevens had not gone far enough in restoring rights to the people, was worth a party in itself. I could hear Hosannas in the distance all night long.
When first I learned that cert was granted in Gant, it was not a happy moment. Gant had already prevailed in the Arizona Supreme Court, and the implication was that there would be no need for the Supremes to use up space on their very busy (and very small) docket to hear a case where justice already prevailed, and with such a lousy set of facts. As sometimes happens, my thoughts found their way into writing.
Arizona v. Gant is a great case to test the integrity of the Supreme Court. There is no rational justification for permitting this search under any existing exception. No threat. No search incident to arrest. No inventory search. No risk to preservation of evidence. Nothing. If they uphold the search, then they will prove that they have abandoned the 4th Amendment as to cars entirely, removing all reason from the equation. It will take some mighty efforts to explain away that one, but they are smart cookies.
The facts in Gant were ugly, with Gant taken from his own car, parked in his own driveway, arrested, cuffed and placed in the squad car. The police then searched his parked car. For many lawyers, and all cops, this might not seem surprising, given that the equation has long been “automobile + arrest = search.” This equation is derived from the confluence of two exceptions to the 4th Amendment, the automobile exception and the search incident to arrest exception.
The automobile exception is based on the notion that a car, being readily mobile, inherently presents “exigent circumstances” that preclude a police officer from obtaining a search warrant when there is probable cause to believe that the car contains evidence of a crime. The search incident to arrest exception, crafted in Chimel v. California and applied to car stops by New York v. Belton, allowed police to search the “grabbable area” around the suspect to make sure that there were no weapons that could be used to harm officers, and to preserve evidence that the suspect might otherwise destroy. These, in conjunction with a few other exceptions, like inventory search coupled with inevitable discovery, sealed the deal. There were just too many ways to approve a warrantless car search to make a judge take a challenge seriously.
Some of that changed yesterday, when the 4 plus 1 majority held that:
We hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.
That’s the good stuff. As Justice Stevens wrote, the court “tethered” the rationale for the search incident exception back to the facts that justified it in the first place. Justice Scalia, on the other hand, argued that even this give-back, allowing any search incident for weapons, was too much since it was obvious that the better, more effective and easier cure was to do exactly what the cops did to Gant, cuff him and remove him from the scene. Why sacrifice constitutional rights when the problem is better solved by better police practice?
But inexplicably, neither Justice Stevens nor my brilliant yet surly compadre, Justice Scalia, could bring themselves to make it right all the way to its logical conclusion. The majority held:
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.
It appears that many of my brethren were so swept up in the moment that this sentence didn’t receive their full attention. Nor did this sentence from Nino’s concurrence:
I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when 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.
So many nuanced problems wrapped up in these sentences, sucking the air from the party balloons. As the search incident to arrest exception, pertaining to the dual threats of harm and destruction of evidence, has now been “clarified” a mere 28 years later (and to all you folks who are still sitting in prison based upon a mistaken application of Belton for almost three decades, sorry), what conceivable reason can there be to obviate the exception for weapons yet retain the exception for an evidentiary search? Once the suspect is secured, he is no more capable of destroying evidence than he is of grabbing a toothpick and jamming into the cop’s SolaPlexus. The suspect is secured. The vehicle is secured. End of exigency.
More confusing is Justice Stevens’ “reasonable to believe” language, since (as reflected in Scalia’s sentence) probable cause used to be the threshold for a search, even under the automobile exception. Does this reflect a change in the requisite quantum of belief necessary to conduct an evidentiary search of a vehicle, even after the occupant has been seized, secured and stashed in the squad car? I don’t think the language is intended to signal a change, but it’s wording like this that opens the door to further confusion and potential rulings permitting cops to search for evidence, if not weapons, at will.
Yet Justice Scalia, while remembering to use the magic phrase “probable cause,” ignored the tether altogether when it came to searching for evidence. But he didn’t stop there, further ignoring the existence of a nexus between the reason for the stop and the basis for probable cause to search when he added the disjunctive. This, of course, plays into the Whren pretext stop, which wholly untethers the exigency rationale applicable to automobiles from the police interest in a warrantless evidentiary search. In other words, wait until the guy you’re after gets into a car and violates one of the zillion traffic regulations, then stop him on a pretext and search for evidence at will.
So is Gant a winner for the 4th Amendment? You betcha. But if we dig a little deeper, and remember way back when police weren’t given carte blanche to search automobiles whenever they wanted, it’s not nearly as much of a winner as intellectual integrity might require.
Hope everybody enjoyed the party last night. Sorry I went to bed early.
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Gant gives us (at least?) two different types of reasons not to party like it’s 1969.
As you note, among other things, the “unless it’s an evidentiary search” exception will limit this case’s usefulness.
From a practical standpoint, however, the facts of this case just won’t arise all that often. The car was parked in the driveway. That reminds me of fewer than 1% of all my car search cases.
Some states, apparently, have a “if the D pulls over to a safe spot, then no towing the car” rule, but that doesn’t seem to apply in Texas.
Ergo, it’s not just car + arrest = search, it’s now-that-I’m-arresting-you-I’m-gonna-tow-your-car, therefore inventory search that gets most folks.
While you are absolutely right about the driveway detail, the inventory search aspect deserves some greater attention. Too many lawyers and judges are very careless about them, as are cops and prosecutors in claiming the exception. Inventory searches are permitted for very specific reasons and under relatively specific circumstances. Almost no roadside search can be justified as an inventory search, and few searches prior to impound by the police will meet the requirement of a proscribed procedure meeting the proscribed purposes.
There are a host of ways around the Gant ruling, but I would hesitate to give the cops enough credit to actually use them. I suspect that what will happen is that they will just tailor the story to suit the latest and greatest excuse to search, and we will be back the age-old problem of testilying to get over that nasty 4th Amendment warrant technicality.
I noticed both those quotes and even quoted them!
I had no doubt that you would immediately zero in on all the crucial elements of the decision, you old eagle-eye, you.
Pfft.
I think you and I are probably on the same page here, but I’m gonna keep yammering anyway.
While it should be obvious, I hope, that this decision will somewhat limit the cops ability to search vehicles “because they can”, I’m still not sure how many times this case will apply in real world scenarios.
Basically I’m talking about the situation where D gets arrested for a traffic warrant, or something else piddly, and then when the police are allowed to tow the vehicle. That’s (a) a pretty common scenario, although I don’t keep any kind of stats, and (b) a situation where Gant won’t help.
But, yes, there are certainly cases where the cops tow a vehicle and shouldn’t have, and then theoretically Gant could kick in.
I just don’t get it. The evidentiary search is just thrown in as a foregone conclusion. I understand they can search the car for evidence of a crime, but WHY DON’T THEY HAVE TO GET A FUCKING WARRANT????? These five supposedly brilliant minds don’t even deem it necessary to address this question?
I did think it was funny that Scalia was the only one willing to acknowledge that cops might manipulate a scene and leave it unsecured in order to justify a search. Wasn’t he the one talking about how professional our police forces are and how, as such, the exclusionary rule isn’t even really necessary? Or was that Kennedy?
Read Scalia’s Thornton concurrence, 541 U.S. 615, 625 (2004). In the Thornton concurrence, better than in his concurrence in Gant, Scalia spells out his rationale and the historical precedent for searches incident to arrest for the purpose of gathering evidence of the crime for which the arrest is being made. Basically “[a]n officer making an arrest upon a criminal charge may also take from the prisoner the instruments of the crime, and such other articles as may be of use as evidence upon the trial.” Thatcher v. Weeks, 11 A. 599 (1887), cited by Thornton, 541 U.S. at 629. Scalia must view the entire vehicle as “property found upon the defendant, or in his immediate possession, at the time of his arrest” which “has always been considered properly usable as evidence.” U.S. v. Wilson, 163 F. 338, 340 (C.C.S.D.N.Y. 1908), cited by Thornton, 541 U.S. at 630.
Why Scalia views the entire vehicle as within the immediate control of the arrestee for the purpose of evidence gathering but NOT for purposes of officer safety or preservation of evidence is beyond me at this point without going further into the caselaw. Suffice it to say, however, that the “evidence gathering search” portion of the Gant holding isn’t without precedent or legal reasoning, and therefore isn’t just a “foregone conclusion”. Whether or not you accept the stated reasons for this search is entirely another story.
Did Gant Create a New Test?
Reading the majority decision in
Did Gant Create a New Test?
Reading the majority decision in
I wrote a post on the meaning of Gant’s new test relative to New York law. I was particularly interested because I wanted to know how it would relate to New York’s interpretation its State Constitution which has been stricter on the police than SCOTUS’ Belton decision. I wanted to know 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.
Here’s a link to Benjamin’s post, which offers some good discussion on the New York response to the Supreme Court’s decision in Belton in a decision, People v. Blasich. Back then, New York maintained a robust independant view of search and seizure, including Blasich, the rejection of the Supreme Court’s Belton decision and again in People v. Class. On the law, New York is far more protective than the feds, but the practice tends to be substantially less so, and increasingly less so as time goes on. Technically, Gant remains more kind to the police than Blasich would allow in New York, but in practice it isn’t a whole lot different.
A fair resolution to the prior dispute. It’s good to know that we really can all just get along.
Nothing fair about it. Benjamin showed me he’s got moxie, and that was good enough for me. And so I’ve succombed to his intelligence and strength of will.
Besides, it’s not like he’s some Austin, Texas wussie boy, after all.
Excuse me, but that’s “the best damned criminal defense Wussie Boy in Austin, Texas”, thank you very much.
Oooooooops, did that sound too much like advertising?
Uh yeah, that’s what I meant to say.
Aw, shucks, you’re just sayin’ that.
And I may not be a wussie boy from Austin (though my uncle lives there), but I am a good ‘ole boy from Nashville, TN. 🙂
Judging Empathy: Is It Just the Five Percenters?
Judging Empathy: Is It Just the Five Percenters?
When President Obama announced that he would seek to appoint a justice to the Supreme Court who had empathy, Orin Kerr at Volokh Conspiracy attempted to figure out what he meant.