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September-October 2009

Vehicle searches, post-Gant

What the recent Supreme Court decision means for vehicle searches once a driver has been arrested

Riley Shaw

Assistant Criminal District Attorney in Tarrant County

On April 21, 2009, the U.S. Supreme Court, in Arizona v. Gant,1 revisited its long-standing vehicle search incident to arrest holding in New York v. Belton2 and reversed course, holding that warrantless vehicle searches incident to arrest are not permitted unless 1) it’s reasonable to believe that the arrestee might access the vehicle at the time of the search (apparently meaning that the arrestee is unsecured and within reach of the vehicle), or 2) it’s reasonable to believe that the vehicle contains evidence of the offense of arrest.

Chimel and Belton

One of the limited exceptions to the Fourth Amendment’s prohibition against warrantless searches and seizures was articulated in Chimel v. California.3 In that case, police officers obtained an arrest warrant for the defendant for burglarizing a coin shop, went to his house, and arrested him inside. Then officers performed a non-consensual, warrantless search of the entire house. The question before the court was whether the warrantless search of the whole house could be justified as incident to the arrest.

In holding that the search’s scope was unreasonable under the Fourth and Fourteenth Amendments, the Supreme Court approved of “wingspan” searches, meaning it is reasonable for an officer to search an arrestee to remove weapons or find evidence (and thereby prevent its concealment or destruction) and to search the area into which an arrestee might reach to grab a weapon or conceal or destroy evidence. There is no justification under Chimel, however, for routinely searching any room other than that where an arrest occurs or for looking through desk drawers or other closed areas in that room.4

Twelve years later, the Supreme Court, in New York v. Belton,5 re-examined its holding in Chimel and relaxed the rules in the automobile context by allowing officers to search a vehicle passenger compartment incident to arrest without respect to officer safety or evidentiary justification. In Belton, a lone police officer stopped a vehicle with four men inside. The officer discovered that none of the men owned the vehicle, and he smelled burnt marijuana and saw an envelope on the floor that he believed contained marijuana. He ordered the men out of the car, placed them under arrest for possession of marijuana, patted them down, and separated them; however, he had only one pair of handcuffs, so he could not secure them all. The officer picked up the envelope and confirmed that it contained marijuana, then searched the rest of the passenger compartment; he found a jacket belonging to Belton, unzipped the pocket, and found cocaine. He seized the cocaine and drove the four men to the police station. Belton was charged with possession of the cocaine and was subsequently convicted.6

The U.S. Supreme Court reviewed the case and issued an opinion that revisited Chimel and the cases construing it, noting that the Chimel standard was difficult to apply in specific cases primarily because “courts have found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant.”7 To provide clear guidance to officers in the field, the court articulated a new standard for vehicle searches, stating that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile … [and] may also examine the contents of any containers found within the passenger compartment.”8 In support of this new standard, the court noted that articles in an automobile’s passenger compartment are almost inevitably within an arrestee’s reach where he might grab a weapon or evidence.9

Arizona v. Gant

Belton had been the law of the land for the past 28 years, but its reign ended in April when the Supreme Court, without expressly overruling Belton, handed down its opinion in Arizona v. Gant. In Gant, three officers were investigating a drug house. While there, they arrested two people and placed them in two patrol cars for offenses unrelated to Mr. Gant. Shortly thereafter, Gant drove up to the house, parked his car, and got out. He walked 10 or 12 feet toward one officer, at which time he was arrested for driving while his license was suspended. A third patrol car and two more officers arrived. After Gant was handcuffed and placed in the back of the third cruiser, two officers searched his car incident to arrest and located a bag of cocaine in the pocket of a jacket in the passenger compartment. Gant was charged with possession of the cocaine, convicted, and sentenced. At the motion to suppress hearing, Gant argued that Belton did not authorize searching his vehicle because he posed no threat to officers after he was handcuffed and in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. Gant’s motion to suppress was denied, he was convicted, and the appeal worked its way to the Supreme Court.

The U.S. Supreme Court, in its review of the facts in light of the caselaw discussed above, clarified that the safety and evidentiary justifications underlying Chimel’s reaching-distance rule limit Belton’s scope. Accordingly, the majority held that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. The court further held that circumstances unique to the automobile context will 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.10

After applying the law to the facts, the majority held that the search in Gant was unreasonable under the Fourth Amendment. The differences between Gant and Belton were many: Belton involved a single officer and four unsecured arrestees; plus, Belton was already under arrest for marijuana that the officer had smelled and seen in the vehicle prior to searching it and finding additional drugs. On the other hand, Gant involved five officers and three arrestees, all of whom had been cuffed and placed in patrol cars before the search; plus, Gant was arrested for a driving offense for which police could not expect to find evidence in the passenger compartment of his car.

In rejecting other courts’ broad reading of Belton as always allowing a vehicle search incident to arrest of a recent occupant, the Gant majority noted that the Belton holding does not change the fundamental principles established in Chimel regarding the basic scope of searches incident to lawful custodial arrests. The majority stated, “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.”11 In addition, the majority noted that, rather than providing simplicity and clarity, the broad reading of Belton had generated inconsistent results in its application, particularly regarding how close in time to the arrest and how proximate to the arrestee’s vehicle an officer’s first contact with the arrestee must be to bring the encounter within Belton’s purview and whether a search is reasonable when it commences or continues after the arrestee has been removed from the scene.12

The Gant opinion was a 5-1-4 decision, and the majority opinion was authored by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsberg. Justice Scalia also authored a concurring opinion in which he argued that when a person is arrested, he should be moved away from the vehicle, patted down for weapons, handcuffed, and secured; therefore, there should realistically be no officer safety issue with regard to the arrestee and what might be in his vehicle.

Justice Scalia expressed concern that having an “unsecured and within reaching distance” rule will encourage officers to allow the scene to remain unsecured to conduct a vehicle search.13 As a result, Justice Scalia would limit warrantless searches to those instances where 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.14

The dissent was authored by Justice Alito and joined by Justices Roberts, Kennedy, and Breyer. Its crux is that there isn’t sufficient justification under the doctrine of stare decisis to abandon the 28-year line of caselaw that flowed out of Belton.15 (The majority responded that “stare decisis … does not compel us to follow a past decision when its rationale no longer withstands ‘careful analysis.’ We have never relied on stare decisis to justify the continuance of an unconstitutional police practice.”)16 Per the dissent, the majority’s overruling of Belton’s bright-line rule will “cause the suppression of evidence gathered in many searches that were carried out in good-faith reliance on well-settled caselaw” and will “reintroduce the same sort of case-by-case, fact-specific decisionmaking that the Belton rule was adopted to avoid.”17 Further, the dissent argued that Chimel’s reaching-distance rule was to be measured at the time of arrest rather than at the time of the search; otherwise, the dissent argued, the rule would encourage officers to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer.18 Finally, the dissent argued that part two of the new rule, which allows searches for evidence of the offense of arrest, was flawed for using a “reason to believe” standard rather than probable cause; for limiting the search to the offense of arrest; and for limiting the search to the passenger area.19

Issues for the future

Here are a few questions Gant raises that police and prosecutors should note.

1

“Unsecured and within reaching distance”:  Part one of the new rule says a search is allowed “only when the arrestee is unsecured and within reaching distance of the passenger compartment”; the opinion later states that a search is permissible “when an arrestee is within reaching distance of the passenger compartment.”20 Thus, there is at least some uncertainty whether the rule is “unsecured and within reaching distance” or just “within reaching distance.” It appears from the opinion as a whole that the court means the arrestee has to be both unsecured and within reaching distance, but we’ll have to wait and see how the courts interpret it.

2

“Reasonable to believe”:  Part two of the new rule uses “reasonable to believe” when referring to the existence of evidence in the vehicle. This standard is presumably something less than probable cause, but again, we’ll have to watch how it unfolds in court.

3

Searches under Belton rule:  What about officers who made searches based on Belton prior to the court’s ruling in Gant? At least one federal court has already considered this issue. The Tenth Circuit, in United States v. McCane,21 applied the good-faith exception to the exclusionary rule where the defendant was arrested for driving with a suspended license and the officer, after handcuffing and placing him in the back of the patrol car, searched McCane’s vehicle and found a gun—illegal for the defendant, a felon, to possess. The Tenth Circuit upheld the search because it was supported by precedent and did not undermine the principle of deterrence that underlies the exclusionary rule.

Other things to remember

It is important to remember that Gant applies only when there has been an arrest, and it is not the only exception to the warrant requirement. Other exceptions available to officers in the field include:
•    searches of the person incident to a lawful arrest;22
•    searches of the passenger compartment when there is reasonable belief that a suspect who has not been arrested is dangerous and might access the vehicle to gain immediate control of weapons;23
•    searches of the vehicle when there is probable cause to believe the vehicle contains evidence of criminal activity;24
•    limited protective sweeps of areas of a house that an officer reasonably believes harbor a dangerous person;25  
•    inventories, which must be done according to standard policy and procedures related to protecting the vehicle and its contents;26
•    dog sniffs outside vehicles during legitimate traffic stops, as long as they don’t extend the time of the stops;27 and
•    voluntary consent searches of vehicles and containers within it.28
Gant does not do away with any of the above; rather, the decision modifies only Belton. Applying Gant with the other available warrant exceptions should give an officer in the field the flexibility he needs to fully investigate criminal activity, keep himself safe, and procure evidence constitutionally.

Endnotes

1 556 U.S. ___, 129 S.Ct. 1710 (2009).
2 453 U.S. 454, 460 (1981).
3 395 U.S. 752 (1969).
4 Id. at 762-763.
5 453 U.S. 454 (1981).
6 Id. at 455-456.
7 Id. at 460.
8 Id..
9 Id.
10 Gant at 1719.
11 Id. at 1721.
12 Id. at 1720, 1721, footnotes omitted.
13 Id. at 1724.
14 Id. at 1725.
15 Id. at 1727.
16 Id. at 1722.
17 Id. at 1726, 1729.
18 Id. at 1730.
19 Id. at 1731.
20 Id. at 1714, 1723.
21 U.S. v. McCane, ___ F.3d ___, 2009 WL 2231658, C.A.10 (Okla.)(decided July 28, 2009)
22 See Weeks v. United States, 232 U.S. 383, 392 (1914).
23 See Michigan v. Long, 463 U.S. 1032, 1049 (1983).
24 See United States v. Ross, 456 U.S. 798, 820 (1982), Carroll v. United States, 267 U.S. 132, 153 (1925).
25 See Maryland v. Buie, 494 U.S. 325, 334 (1990).
26 See Colorado v. Bertine, 479 U.S. 367, 374 (1987).
27 See Illinois v. Caballes, 534 U.S. 405, 407-409 (2005).
28 See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), and Florida v. Jimeno, 500 U.S. 248, 249 (1991).