Supreme Court Limits Auto Searches Incident to Arrest

The Supreme Court today decided Arizona v. Gant, the case many defense lawyers have anxiously been awaiting. And, it's good news.

The Supreme Court today sharply limited the power of police to search a suspect's car after making an arrest, acknowledging that the decision changes a rule that law enforcement has relied on for nearly 30 years.

In a decision written by Justice John Paul Stevens, an unusual five-member majority said police may search a vehicle without a warrant only when the suspect could reach for a weapon or try to destroy evidence or when it is "reasonable to believe" there is evidence in the car supporting the crime at hand.

The Court didn't completely overrule Belton v. New York, but said it has been misapplied by courts. [More...]

"Blind adherence to Belton's faulty assumption would authorize myriad unconstitutional searches," Stevens said, adding that the court's tradition of honoring past decisions did not bind it to continue such a view of the law.

"The doctrine of stare decisis does not require us to approve routine constitutional violations."

More on Belton:

Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis.

The bottom line:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Justices Alito and Roberts dissented (along with Kennedy and Breye.)The opinion is here (pdf).

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    Thomas, wow (none / 0) (#1)
    by progrocks on Tue Apr 21, 2009 at 03:32:30 PM EST
    Scalia I could have forseen, but Thomas in the majority, that is shocking.  And too bad the "liberal" Breyer is always on the wrong side in crim law cases.

    As Tracy Ullman (none / 0) (#3)
    by KeysDan on Tue Apr 21, 2009 at 03:52:24 PM EST
    might say: "and how do we explain a Judge named Scalia?"

    This is the 3rd time this term (none / 0) (#4)
    by magster on Tue Apr 21, 2009 at 03:58:42 PM EST
    where I recall Thomas breaking with Scalia.  Is Thomas positioning himself to the center to have more power on the court (knowing that Obama will keep the court from getting more conservative).

    He didn't break with Scalia (none / 0) (#7)
    by Bemused on Tue Apr 21, 2009 at 04:22:20 PM EST
    Scalia also joined the majority and wrote a concurrence basically saying he'd rather just overrule Belton but faced with a choice between Stevens' distinguishing of Belton and the minority's desire to maintain the expansive reading of it and broad exception to the warrant requirement he chooses Steven' approach as the lesser evil because it is more consistent with his view of the 4th.

    Forget what I said (none / 0) (#8)
    by magster on Tue Apr 21, 2009 at 04:23:15 PM EST
    Doublechecked myself. Dumb comment.

    Wow (none / 0) (#2)
    by jbindc on Tue Apr 21, 2009 at 03:41:12 PM EST
    Looks like they are going to have to rewrite a bunch of scripts for cop shows!

    Or they get a new storyline. n/t (none / 0) (#9)
    by inclusiveheart on Tue Apr 21, 2009 at 04:23:42 PM EST
    Sounds reasonable to me. (none / 0) (#5)
    by sarcastic unnamed one on Tue Apr 21, 2009 at 04:06:59 PM EST

    Solution. Keep the arrestee (none / 0) (#19)
    by oculus on Tue Apr 21, 2009 at 07:42:36 PM EST
    following pat down for wearpons next to the car door

    There is probably (none / 0) (#6)
    by Bemused on Tue Apr 21, 2009 at 04:18:58 PM EST
     I'm confused as to why Alito and Breyer think the new rule (and I will agree they make a decent argument it is a new rule overruling Belton as opposed to a clarification limiting Belton) will be difficult for law enforcement to understand. there is a difference between finding it a hindrtance and not understanding it. The rule is:

    "Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest."

      That seems pretty clear to me. If the police stop someone for a traffic violation or to serve an outstanding warrant they can't search the car unless a reasonable person would believe the occupants could obtain a weapon or destroy evidence in the car, which can't be done once they have been removed from the car and secured.

      As for a reasonable belief that evidence of the crime of arrest would be found in the car that would allow for a search where a car is stopped on BOLO or hot pursuit from a crime, but the cops can't search for drugs etc., just because they have lawfully stopped the car for one violation  based on  reasonable suspicion to believe evidence of some other crime will be found.

      The cops can still in many instances impound cars and conduct an inventory search when the driver is arrested and they can as always get a search warrant if they have probable cause to believe evidence of that other crime will be found in the car.

      I do wonder if some police forces will now instruct cops to keep at least one occupant in the car and search  just so they can argue he had access during the search-- at least in cases where they don't think the person is really dangerous but might have drugs.

      I can see situations where backup would be called and the driver required to keep his hands on the wheel while a second or third cop searches.

    any more thoughts on the inventory exception? (none / 0) (#15)
    by Jeralyn on Tue Apr 21, 2009 at 05:54:48 PM EST
    What if they stake the guy out at home because they have an arrest warrant based on a just unsealed Indictment, and when they see him leave the house in his car, they stop and arrest him, handcuff him and put him the back seat of their car. Then they search his car on the spot, calling it an "inventory" search, and find drugs and money.

    Do you think today's opinion applies? (All lawyer responses welcome)


    I think that w/o probable cause (none / 0) (#20)
    by oculus on Tue Apr 21, 2009 at 07:45:16 PM EST
    the warrant must include permission to search car.  Of course, most affidavits in support of s/2 request permission to search vehicles and most magistrates grant that request.

    Inventory is something else (none / 0) (#25)
    by Peter G on Tue Apr 21, 2009 at 11:47:36 PM EST
    If the police can impound the car, they can then inventory its contents pursuant to a routine policy, to protect against danger and claims of theft, without a warrant or probable cause.  In relation to the arrest warrant on an indictment, under the new opinion in Gant there would have to be p/c to believe that evidence proving the charges in the indictment would be found in the car at the time of the stop.  I think police assertions of "voluntary consent," genuine or phony, are more likely to override the protections of this important decision than any other Fourth Amendment exception.

    A few thoughts (none / 0) (#29)
    by Bemused on Wed Apr 22, 2009 at 07:05:59 AM EST
     First if they have an arrest warrant for a person and surveillance of HIS house establishes he is inside, they will likely continue to do what they usually do now-- use the warrant as justification to enter his house to execute the arrest warrant hoping that once lawfully in his house they can find evidence in plain view or find it during a protective sweep which allows a broader search than a search than a Chimel search incident to arrest. Then, if the exception searches uncover any evidence they can use that ac probable cause to get a search warrant to do a comprehensive search of the home and any possibly also his vehichle[s].

      Cops do this now even though it would seem to me that it would be safer for everyone to wait until the person leaves his house and arrest him. Only in rare instances would the cops likely think there is "better" evidence to be found in the vehicle than would be found in the house or on the person as he walks to the car. Leaving  drugs, money or guns in an unattended vehicle is asking to get ripped off, so the evidence is very likely to either be in the house or on the person as he leaves and not already in the car.

      Now, when the person is at someone else's house and an arrest warrant would not suffice to enter that house to execute the arrest warrant the cops might find it easier to wait for him to exit than to prepare an affidavit for a search warrant to search that home based on evidence the wanted person is inside. but, that's more a practical consideration because there is still probably in most cases a higher likelihood that the evidence is inside the third party home with the wanted person than in his car.

      Occasionally, you will get the scenario where the wanted person is inside a home while the car is occupied by associates waiting outside in the car and the cops have reason to believe more or better evidence will be found in the car and in those situations I could see waiting for the person to exit the home and get in the vehicle.

      The other consideration though is that an arrest of a person in the car does not necessarily permit impounding the vehicle. If I am driving with another person in the car  and get pulled over and arrested on an outstanding warrant and the other person  is a licensed driver and the car is not defective for an equipment violation or improper registration/inspection etc., there is no reason not to permit the other person to drive the car away with my permission unbless the coops can obtain a search warrant based on probable cause evidence will be found in the car.

     In sum, I can see some situations where cops might intentionally wait for someone with an outstanding arrest warrant to enter a vehicle so it can be stopped and impounded but more rerasons why cops would often prefer to arrest him in his home.

      A different scenario is where the vehicle stop is not to execute an arrest warrant but a pretextual stop based on a real or manufactured allegation the person committed an offense in the presence of the officer. that's where Gant is likely to have the most effect and where the other exceptions including plain view and inventory search will continue to create the most issues.


    Sorry, I disagree (none / 0) (#31)
    by Jeralyn on Wed Apr 22, 2009 at 06:30:22 PM EST
    In many of my cases which involve mutiple arrest warrants being executed at the same time on numerous defendants, they don't enter the house to arrest...they stake out the house and wait to see the person drive off.

    So I don't think you can generalize that way.


    I'm not sure what you mean (none / 0) (#32)
    by Bemused on Thu Apr 23, 2009 at 07:34:20 AM EST
      As I said, if a person is in HIS house the police may lawfully enter to arrest him. If the location is not his residence an arrest warrant does not suffice for lawful entry and practical considerations may dictate waiting for him to exit rather than attempting to seek a search warrant for the location. (It may be logisitcally difficult to get a search warrant for a third party residence on short notice)

     Many dealers utilize apartments or houses that are not their residences for sale or storage so the police may not be able to enter a place the arrestee is found at a given time.

      In the sweep situation, the primary focus is on coordinating timing so that news of one person's arrest does not reach others before they can flee and/or destroy or hide the evidence.

     That would mean the police would be less likely to wait for a person to exit his home that they could lawfully enter because it would create a higher possibility that the person would get a call telling him his associates have been busted.

      You may actually be seeing something a little different. The police are outside his home waiting for the go signal when the other units have positioned themselves to be ready to arrest the others as close to simulataneously as possible but the person in the house leaves so the cops arrest him out of necessity outside his home. They then follow him in the car either until they get the go signal that the other busts are going down or they decide they simply have no choice but to stop the car because they fear he is going to a location where execution of the arrest warrant will be problematic.

      It would appear axiomatic that when the police are attempting to arrest multiple defendants "at the same time" waiting for the various people  to leave  locations on their own initiative would prevent police from attaining their objective of arresting the people as close in time as possible because it would be extremely fortuitous for all of them to decide to leave their locations at the same time and the cops have no control over when they do decide to leave.

      The police can control when they choose to enter a location they can lawfully enter. You may be confusing an arrest outside the home caused by the person's decision to leave it with one caused by the cops' decision to wait until he gets in a car.



    First thing to do when stopped (none / 0) (#10)
    by Ben Masel on Tue Apr 21, 2009 at 05:12:57 PM EST
    Get out of the car before the officer orders otherwise. Sit crosslegged on the ground, so it's clear you're not attempting to flee, and pose no threat to the officer's safety.

    Very suspicious. Must have something worth (none / 0) (#21)
    by oculus on Tue Apr 21, 2009 at 07:46:14 PM EST
    searching for in the vehicle.  Plus, I agree w/the next comment.  Dangerous for the arrestee.

    Do NOT do what Ben suggests, EVER! (none / 0) (#30)
    by Bemused on Wed Apr 22, 2009 at 07:56:01 AM EST
      Not only would you be risking your life, that maneuver could easily be exploited as evidence of suspicious behavior helping to establish probable cause to search the vehicle. Remember, we are discussing exceptions to the warrant requirement here. The police always have the option of seeking a search warrant and once they get one it is extemely difficult to get a search declared invalid for lack of probable cause and even if it is found to be invalid for lack of PC the leon good faith exception can still often be used to allow for admission of the evidence obtained under the defective warrant.

    "Get out of the car before the officer" (none / 0) (#11)
    by sarcastic unnamed one on Tue Apr 21, 2009 at 05:19:32 PM EST
    Get out of the car before the officer orders otherwise.
    Gauranteed to get a cop all up in your sh*t, as well as a gun drawn on your *ss.

    Hasn't been my experience. (none / 0) (#12)
    by Ben Masel on Tue Apr 21, 2009 at 05:21:03 PM EST
    Lucky you. (none / 0) (#13)
    by sarcastic unnamed one on Tue Apr 21, 2009 at 05:23:28 PM EST
    I recently got a speeding ticket (none / 0) (#14)
    by Capt Howdy on Tue Apr 21, 2009 at 05:34:32 PM EST
    and almost got shot when I tried to open the door because my drivers window was broken and I could not roll it down.

    Yes, that's been my experience... (none / 0) (#27)
    by PostModernPatriot on Wed Apr 22, 2009 at 12:17:36 AM EST
    ...just about.  I'm a 40-ish white female and look very non-threatening.  I've been stopped for traffic vios a few times in fairly suburban neighborhoods.  Cops get very antsy if I even look like I might open the car door.  When I go to grab my purse to get my license, I look them in the eye and explain what I'm about to do before I do it.  I'd be truly afraid to take it upon myself to just exit the car on my own, even in my station in life.  Let alone if I was a twenty-something male.

    A Rude Inquiry... (none / 0) (#16)
    by Brillo on Tue Apr 21, 2009 at 06:11:47 PM EST
    Just how White are you?  ;)  Older maybe?  Clean cut?  Driving a slightly beat up Volvo station wagon with a baby on board sticker or some such?  

    Cause I'm fairly certain that this suggestion would get some of us shot, or at the very least arrested.  


    Having seen a pic (5.00 / 1) (#17)
    by CoralGables on Tue Apr 21, 2009 at 07:23:53 PM EST
    of Ben, this request gives me one of those semi smirks knowing the writer is treading into ground of which he is unknowing.

    I've seen aa photo of Ben and heard (none / 0) (#22)
    by oculus on Tue Apr 21, 2009 at 07:47:28 PM EST
    of his "contacts" with law enforcement.  Seems they probably know who he is by now.  

    before the Democratic convention (none / 0) (#26)
    by Ben Masel on Tue Apr 21, 2009 at 11:48:34 PM EST
    the Denver City Attorney sent a memo to every cop, with my picture clipped from my Myspace, and the notation "Unless you see him punch somebody, call our office before arresting him."

    Terrific. You've made your mark. (none / 0) (#28)
    by oculus on Wed Apr 22, 2009 at 01:05:03 AM EST
    But I've found I've been safe (none / 0) (#18)
    by CoralGables on Tue Apr 21, 2009 at 07:29:35 PM EST
    shutting off the engine and placing my hands on top of the steering wheel so my hands are visible. Of course, I'm also one of those older clean cut white guys that could be driving a Volvo with a baby on board sticker so don't trust me.

    My advice to anyone contacted by (none / 0) (#23)
    by oculus on Tue Apr 21, 2009 at 07:48:10 PM EST
    law enforcement is to exactly what you do.  

    Good ruling. (none / 0) (#24)
    by Green26 on Tue Apr 21, 2009 at 10:12:59 PM EST
    This is closer to what the rule should have been all along.

    Given this Court, this surprises me.