Officer Jones: Which box should I check off, inventory search, search incident or because we could?

Officer Smith: It’s Tuesday. Tuesdays are always inventory search, kid.

Officer Jones: Sorry, I forgot.

At Concurring Opinions, Santa Clara Lawprof Kyle Graham bemoans his plan to engage in empirical analysis of the impact of the 2009 Supreme Court decision in Arizona v. Gant.

A little while back, I was considering whether to undertake an empirical study into whether law enforcement officers were relying on the inventory-search exception to the warrant requirement more often after the United States Supreme Court’s 2009 decision in Arizona v. Gant, which pared back the search-incident-to-arrest exception to the warrant requirement insofar as it applies to vehicle searches.

Some have suggested that, given the number of exceptions to the warrant requirement that exist, the diminution of one exception will simply lead to the expansion of another. I thought that the post-Gant scenario would provide as good a setting as any to test this hypothesis, especially since it’s been said that officers are relying on the inventory-search exception to the warrant requirement more often in the wake of the Gant decision.

Graham offers no hint who has been spreading these vicious rumors, but surely it would be useful to know whether the Supreme Court’s decision is having an impact on the manner in which cops conduct vehicle searches and seizures.  Unfortunately, this study was not to be.

I decided not to perform the study, however, after a casual conversation with a local police officer. After I described the proposed inquiry to him, he said, in essence, “Don’t bother.” When I asked why, he told me that the numbers would almost certainly be skewed by the fact that the post-Gant era has coincided with substantial layoffs at local law enforcement agencies, due to the recession.

As a scholar, it would seem that Graham would immediately respond that he can address this problem in about 30 seconds with some quick statistical fix to adjust for the reduced number of cops due to layoffs.  Well, maybe more precisely he can get a frosh taking Statistics 101 to handle it for him, without missing a single fraternity party.  But there was more bad news.

These layoffs would affect my results, the officer added, not only because they resulted in fewer officers, but also because (given last-hired, first-fired seniority rules) more recently hired officers were disproportionately affected by these cuts, and more recent additions to the force tend to be more eager than senior officers are to impound vehicles and perform inventory searches on them. And so, if the data reflected fewer inventory searches, or about the same number of searches, these totals might represent the recession-affected demographics of local police departments, as much as anything else.

This argument, unlike the raw numbers of cops being paid, is far more persuasive.  Rookies are enthusiastic.  Rookies get bored sitting around waiting for the donuts to come out of the oven.  Rookies want some action.  “Senior officers,” not so much.  They’ve been there, done that.  The thrill of catching some punk with a few marijuana seeds in the ash tray is gone.  Old guys watch the calendar to see when they can put in their papers and go full time on their bird house building business.

What raises this to a matter of interest, as opposed to an example of desperately seeking something to write about, is that the underlying question is whether Gant changed anything.  Gant? Seriously?

If you recall, Arizona v. Gant was an outlier of the worst order, where police were so utterly cavalier as to concede that they ignored every conceivable justification for a search incident, an inventory search, any of the vast multitude of automobile search exception rationales.  It was the automobile search taken to the extreme, with a boldness that smacked of cops being so utterly disdainful that they could actually admit to a sequence of events that rarely happens, and is never openly spoken.

And this is what is worthy of empirical analysis?  Because it’s likely to happen, maybe, twice?

More to the point, had Graham persisted in his study, adjusted for the fact that cops have been laid off, and older cops are too lazy to do the job for which they’re due a pension, the outcome would have provided a basis to show what? 

The tacit requirement for such a study is that cops honestly and accurately report the basis for their conduct.  There are forms (there are always forms) with boxes to check off, or fill in, or something, to “explain” how it came about that they conducted a search.  And the boxes offer the well-recognized, well-worn exceptions.  There is no box that says, “we searched because we wanted to, and it’s not like anybody can stop us.”

Does the lawprof suspect that the police are going to write a note saying that they engage in routine violations of the 4th Amendment?  Or perhaps that they will sit their in angst-ridden struggle with their consciences to make certain that they are brutally honest in specifying the reason why they tossed a car?

The stories in the trenches of why the cops searched a particular defendant, or his car, or his bag, or whatever they had to search to find whatever they had to find, tend to be long on routine and short on detail.  Whether it’s a furtive gesture, or the plain view observation of a gun sticking out from under a car seat, or undue nervousness when subject to routine questioning during a car stop (because so many of us aren’t nervous at all when stopped by the cops), the stories all blend. 

This isn’t an accident. Regardless of whether you think cops and brilliant or stupid, they are certainly smart enough to remember the handful of explanations that make a search pass muster.  But there was never a box to check that said “because we felt like it” that had to be removed after the Supremes decided Gant.  Did anybody think otherwise? 

Kyle Graham was dissuaded from his empirical study because of a concern that the numbers wouldn’t honestly and accurately reflect police reaction to Gant.  Empiricism isn’t all it’s cracked up to be.  Of course, this isn’t exactly an “unexpected impediment,” but rather an impediment that might not be noticed or appreciated by the naive in search of an empirical study.