Reading the majority decision in of four Arizona v. Gant by Justice John Paul Stevens, this sentence raised hackles because of its inexplicable separation of an evidentiary search from its original rationale:
[W]e also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.
In my post-game analysis, the unusual phrase, “reason to believe,” was noted but not given thorough consideration as reflecting a new test, heretofore unknown in criminal law, to be applied to evidentiary searches of automobiles incident to arrest.
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.
To me, “reasonable to believe” is such a vague and meaningless phrase that I could not believe that it was intended to signal a massive change, a fundamental change, in what is required to conduct an evidentiary search. After all, Justice Stevens did not go any length at all to note or highlight that these words signaled a new test. Nor did he explain what this test might conceivably mean, other than the obvious, that a search would not be permitted when it is unreasonable. What a great idea, all warrantless evidentiary searches incident to arrest are good unless they are unreasonable. The would really put a crimp in the cops’ style.
Of course, if we divorce the evidence related to the basis for arrest and include evidence generally, then it would always seem reasonable to search anything one can when arresting a person, since that would be the most efficacious time to do so. You never know what you might find, and given that level of intrusiveness of a full arrest, a little search of a car hardly seems unreasonable at all. And then, there are always the pretextual stops, which makes the entire “reasonableness” and “relevance” spectrum seem plain old goofy. Imagine having greater latitude with a pretext stop than a stop for true cause? Wouldn’t that be a hoot?
But then, others may differ.
It didn’t take long before Orin Kerr opened the debate at Volokh Conspiracy on what the “new test” meant. I suspect that Kerr is one of those people who believes that every word of a Supreme Court opinion is imbued with special powers, chosen for its precise and consequential meaning. In other words, it wouldn’t be possible for the “reasonable to believe” language to be descriptive rather than conclusively a new test. Regardless, Orin doesn’t ask if this reflects a new test, but rather what the new test means. Oh crap.
The problem is that he’s given away half the battle already, starting with the assumption that it must indicate a new, different test to be applied.
At first blush, my thought was that “reasonable to believe” surely can’t mean probable cause: Under the automobile exception, the police can search any part of a car that might store evidence if they have probable cause to believe that evidence is in the car. That’s true without an arrest, and it’s why the police almost never get a warrant to search a car. Notably, Justice Alito in his dissent assumes that “reason to believe” is different from probable cause. (Alito asks, “Why, for example, is the standard for this type of evidence-gathering search ‘reason to believe’ rather than probable cause?”) But if it’s not probable cause, what is it?
If Orin is correct, or more importantly, if judges seize upon this vague language to hold that a new test was created and then decide for themselves what it means since the Supremes neglected to define it, we’re right back to the good, old wild west of 4th Amendment evidentiary searches whenever a decent excuse can be proffered. Worse still, once an evidentiary search incident is held to be constitutionally permissible based upon a “reasonable to believe” test, how long will it take for the inevitable slide down the slippery slope to the “reasonable to believe” test to find its way into collateral scenarios, replacing probable cause for the automobile exception perhaps?
Contrary to Orin’s assumption, I cannot believe that Justice Stevens, having “clarified” Belton after a mere 28 years of lower court misinterpretation, actively decided to create another source of massive confusion by casually tossing out a new test to be applied to the now clarified search incident.
The problem is that, given Justice Alito’s having pointed out the language in his dissent, one would expect Justice Stevens (or one of the other justices in the majority) to have either modified the language, responded to the criticism, defined the phrase or done something to eliminate the confusion that this language could potentially create. They didn’t.
I’m not prepared to accept at face value that this “reasonable to believe” phrase is necessarily a new test, of some ill-defined nature, with which the right to be free from unreasonable searches and seizures will not be held captive. But I similarly find it hard to explain it away either. For now, I’m sticking to the position that it is merely descriptive, but I fear that the debate opened at VC will filter down to those who are looking for a backdoor to allow searches whenever possible, and this may be just the thing to start a new round of problems.
Like I said yesterday, Gant ain’t great.
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Scott writes:
“I suspect that Kerr is one of those people who believes that every word of a Supreme Court opinion is imbued with special powers, chosen for its precise and consequential meaning.”
Scott, I think I have at least a somewhat accurate sense of how and why the words of Supreme Court opinions tend to be chosen. My clerkship at the Court was only 5 years ago, and I don’t think so much has changed.
Why did Stevens use that phrase? My guess is that he adopted it uncritically from Scalia’s opinion in Thornton because he needed Scalia’s vote as well as Justice Thomas’s to get to 5. He presumably figured that the best way to keep Scalia and Thomas on board was to adopt Scalia’s test in its entirety without questioning what it means.
Meanwhile, I don’t think Scalia was spending a whole lot of time on this issue in Thornton back in 2004. His opinion was just a concurrence, and he was indicating the possible need to depart from Belton without going into a whole lot of detail; After all, that issue wasn’t even raised in Thornton, so there would have been no particular reason for Scalia to get into the details.
As for your claim that you think “reasonable to believe” is “descriptive,” I don’t know what that means. Descriptive of what?
Oh sure, rub my nose in the fact that you were a Supreme Court clerk and I wasn’t, as if that gives you some sort of inside track as to how things work. Oh, wait a sec. It does. Never mind.
Seriously, your explanation of how the phrase was likely to have found its way into the opinion makes a great deal of sense, but militates against its having any special significance. Indeed, that would make it an example of how a phrase, somewhat incautiously used in the first place, finds its way into an opinion and is imbued with significance by inclusion or repetition. That’s my points.
As for my “descriptive” explanation, what I mean is that it merely indicates that a search, any search, is not a government entitlement but subject to whatever the relevant level of belief/test applies. It describes that the appropriate test must be applied, rather than what that test may be, which wasn’t in issue in the case and which, given judicial modesty, needn’t have been addressed..
Scott,
If I understand you correctly, you think Justice Stevens was being modest by stating a test that (deep down) wasn’t a test at all, but was rather a call to some other courts to figure out what the test should be. If I understand you correctly, I gather your answer to the question of what the new test is in Gant is that there isn’t a new test in Gant: Gant is an invitation to replace Belton with whatever test lower courts think is best.
I suppose I think that’s a pretty unlikely interpretation. I think the more likely answer is that no one at the Supreme Court was really thinking about this issue, and they had other cases to worry about and figured to just release the opinion as is and see what happens with it. The issue I’m interested in is what lower courts will do with the opinion given the uncertain clues the Court left behind.
Not exactly. It’s my view that an evidentiary search of a vehicle, once the suspect is removed and secured, is no different than any other evidentiary search, and the only question remaining is whether it falls within the dreaded automobile exception (allowing for a search upon probable cause based on exigency) or requires a warrant as would any other evidentiary search. I do not think the court meant that it should be left up to lower courts to decide, but that it’s already been decided and doesn’t break new ground at all.
On the other hand, my problem with your interpretation is that if this does constitute a new test, then what is it? I find it hard to imagine that a new test was included so casually and without any definition, which is why I don’t put much stock in the phrase as representing a new test at all.
It seems unlikely that the court would make a statement in a case intended to limit searches that resulted in the status quo.
Well, not unlikely that they would do it, but unlikely that they would have meant to do it. The dicta/descriptive angle seems to be the way to go, but cops and courts will undoubtedly try to exploit it.