Posted on
April 21, 2009 in
- Texas narcotics cops get an anonymous tip that someone is carrying drugs in his car.
- They call a cop in a marked unit to follow him.
- The uniformed cop watches for a traffic violation (changing lanes without signaling is popular).
- The uniformed cop stops the suspect, arrests him for the traffic violation, cuffs and stuffs him, then searches his car “incident to arrest”.
The rationale of this last bit — the search of the passenger compartment of a car incident to arrest — was that Chimel v. California allowed police to search the space within an arrestee’s immediate control — “the area from within which he might gain possession of a weapon or destructible evidence.” The idea was to protect the officers at the scene and prevent the destruction of evidence.
New York v. Belton held that the space within an arrestee’s immediate control included the passenger compartment of a vehicle and any containers therein. This rule was used for 28 years to justify searches of the passenger compartments of vehicles even after their arrested occupants had been cuffed in the back of patrol cars (and therefore could not possibly gain possession of any weapon or destructible evidence).
Belton was “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there [was] no possibility the arrestee could gain access to the vehicle at the time of the search.” (Arizona v. Gant.) This was a stupid perversion of the Chimel rule. It was designed to allow the police unwonted intrustion into our private lives. Criminal defense lawyers fussed about it, and courts upheld it.
Until today.
Today, in Arizona v. Gant, the United States Supreme Court held (affirming the Arizona Supreme Court’s ruling) 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.”
The consent exception to the warrant requirement survives, of course, as does the probable cause + motor vehicle exception (where, for example, the police smell marijuana smoke in the car). Also, the Court concluded in Gant, “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.'” So an arrest for a drug offense might justify the search of the car, but an arrest for driving without a seatbelt would not.
The State, wrote the Court,
seriously undervalues the privacy interests at stake. . . . A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found int he vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.
Thanks for noticing.
But here’s the problem:
Although it appears that the State’s reading of Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years, many of these searches were not justified by the reasons underlying the Chimel exception. Countless individuals guilty of nothing more serious than a traffic violation have had their consitutional right to the security of their private effects violated as a result.
To those individuals, and to those who went to prison because of evidence found in illegal Belton searches, the criminal justice system can only say, “too bad.”
While not applicable to the facts in Gan (AZ law would have allowed it but no on bothered)t, the vehicle in the situation you describe would almost certainly be subject to impoundment whereupon an inventory search would still be allowed.
A win for liberty for sure butlike most SCOTUS pronouncements it will take time to see what happens in the Real World.
Yeah, I left “inventory search” out of my list of warrant exceptions remaining, but:
Impound and inventory car legally parked on private property?
Arizone law evidently allows for the impoundment of a vehicle driven by someone with a suspended license. I do however have a hard time believing many officers would bother when the car is already parked on the arrestee’s property.
I also have a hard time believing that many jurisdictions would be interested in the hassels a wholesale impoundment policy would entail.
Here’s the decision itself for others who are curious…
https://www.supremecourtus.gov/opinions/08pdf/07-542.pdf
Thank you.
California vehicle allows an officer to impound any car controlled (doesn’t have to be driven) by the arrestee. VC 22651(h). In other words, who needs the search incident to arrest exception to the warrant requirement in California. Officers can impound and search the legally parked vehicles of the arrested, and do everyday.
The Supremes give, and the Fifth Circuit takes away. I think this is a great case, and the conclusion seems like a no brainer given the facts of the case.
The sociological ramifications could be huge if this curtails Zero Tolerance policies. We all know Zero Tolerance Zones are always in the poorer parts of town, or areas of our communities where blacks, and hispanics live.
I hope it is not just another fart in the wind, like many past legal precedents that sound good when released, but become a cruel joke as the lower courts giggle and shrug them off like water from a duck’s back.
Pardon my ignorance, but how does a stop for a routine traffic violation call for someone to be arrested? Assuming no outstanding warrants.
An excellent question, Kris. Here’s the answer. Most traffic offenses (at least in Texas) are “arrestable.”
This is absurd…so now officers will just leave a person in the vehicle and conduct the search, thereby putting themselves at risk of someone grabbibg their firearm etc….is that what the Unsupremes would like?
Thank goodness for the inventory search exception.
grabbing…I will correct now before some typo NAZI strikes.
Thank you for your response. An interesting decision. I believe the officer was flexing his authoritive muscle in this case (your example), however, I was not there to see how she was behaving that influenced his decision.
Thanks again.
The facts of this case drive the decision , at least under Illinois Law…it’s the last paragraph of the opinion that is troubling in the real world. I think the police,and the courts circumvent this by doing “inventory” searches of people arrested and taken into custody for traffic violations of cars ‘parked illegally.
As I read the decision I understand it to say that inventories of a vehicle at the time of arrest are still proper and fruits of a crime found during that search can still be used to charge a suspect. Is this correct? I agree with the comment that no officer would tow a vehicle from the owners residence if that is where they happen to be pulled over; but what about other locations where the vehicle might stop? Someone elses residence a convenient store, the emergency lane on the interstate or the shoulder of the road? Inventories are not necessarily for safety purposes but to document items in the vehicle so that a suspect doesn’t come back and claim someone stole his Rolex off the console of his 1896 Toyota clunker.
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. The link follows:
https://schlissellaw.wordpress.com/2009/04/27/after-gant-is-new-yorks-car-search-rule-stricter-more-lenient-or-juuuust-right/
What will be the likely response of prosecutors to numerous current cases on the docket that involve an illegal search incident to arrest ala Gant (i.e. a traffic offender arrested and then subjected to search of car and contraband is found )?
Will prosecutors dismiss these cases for the sake of judicial economy and fair play?
I imagine their response will be just like their response to any other unavoidable bad fact: some of them will accept it and dismiss; others will woodshed their cops to make up new reasons for searches.
I apologize to those whose comments took unconscionably long to post. I will be more attentive in the future.
Kris,
Just wanted to shed some light on your question about being arrested for a traffic offense. Many states and municipalities have their traffic laws and enforce them differently. Heres an example: you are arrested in New York City for driving after your privilege to do so has been suspended in NY State, when you get stopped you will be arrested. There is no other alternative (it is a must arrest situation). If this happens somewhere upsate NY in the boonies you may be released on a summons to appear at court on a future date, the officer has discretion where in the city they dont. This came about in the city because of the people, not the cops or the government like many would lead you to believe. There were cases where people were getting into accidents and then it was found they would have a ridculous amount of suspensions (in one case over 100 suspensions on like 70 different dates), and were still driving. Of course the press had a field day and it was splattered on every front page of evey newspaper.
You can only imagine the people went crazy! They demanded something be done to deter people who were suspended from driving and hurting people, hence the mandatory arrest policy. Washington D.C. is another jurisdiction where could care less about vehicle and traffic laws and hurt innocent on a regular basis.
I hope I’ve helped clear a few things up. On another note, be careful what you wish for. Anyone intimately familiar with Miranda vs Arizona knows what I mean. that landmark case has an ironic history. Miranda had his conviction appealed on the basis that one should be read their rights and it should be clear they understand those rights before being questioned. Miranda was stabbed after that landmark decision during a card game with some shady characters. When the cops arrived they cuffed the suspect and read him his Miranda rights (i’m sure with a smile), making sure the bad guy understood he did not have to say a word about what had happened. The bad guy opted to take the cops up on his right to remain silent and eventually beat his case due to lack of evidence (I’m sure a confession may have brought about a different outcome). Like I said, careful what you wish for ;)
Just seeking clarification. If the subject of a traffic violation (taillight was out) also had an outstanding warrant (Drunk and disorderly in another state), and, upon seeing the the officers placed him under arrest such that the vehicle was impounded and searched, would that fall under the Gant protection?
Probably not. That sounds like an inventory search (assuming that the cops were permitted to impound the car, and had an inventory policy).
It would seem that a discovery request to have the inventory sheet or tow sheet produced would give fruit for a good argument if the inventory was incomplete and it could be demonstrated that it was mereely a ruse to search. Police Officers are lazy when it comes to paperwork. Checking to see if the last cars that were towed by the officer had an inventory sheet and how complete it was could cetainly show the sheets were only made when it was necessary to sieze evidence. Just a thought.
Do you think that a written police towing/inventory search policy that requires the police to stop inventorying a vehicle if they find an item of contraband and obtain a search warrant creates a due process right that the policy will be followed? Do you have any research suggestions?