Arizona v Gant: Does it matter?

Supreme Court Review

Volumn 2009, Issue , 2009, Pages 275-317

  Armacost, Barbara E ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

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EID: 84859127238     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/653650     Document Type: Review

References (160)

1. 129 S Ct 1710 (2009).
2. 453 US 454 (1981).
3. Gant, 129 S Ct at 1722 (noting that the broad 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").
4. 395 US 752 (1969).
5. See Thornton v United States, 541 US 615, 628 (2004) (listing reported cases). Some courts even permitted a search incident to arrest of an automobile after the arrestee had already left the scene.
6. See, for example, United States v McLaughlin, 170 F3d 889, 890-91 (9th Cir 1999). In Belton itself the search occurred after the arrestees were outside of the vehicle, but the Court nowhere explained why this fact did not make the search impermissible.
7. Thornton, 541 US at 624 (O'Connor, J, concurring).
8. See also id at 627 (Scalia, J, concurring in the judgment) ("Conducting a [search incident to arrest] is not the Government's right; it is an exception-justified by necessity-to a rule that would otherwise render the search unlawful.").
9. See notes 77-85and accompanying text. The SITA is justified only if police actually take the suspect into custody. For purposes of this article, I will use the word "arrest" to mean "custodial arrest." See Knowles v Iowa, 525 US 113 (1998) (holding that police may not do a search incident to a citation).
10. Arizona v Gant, 162 P3d 640 (2007).
11. Gant, 129 S Ct at 1714.
12. Id at 1714, 1719, quoting Thornton, 541 US at 632. By Gant's second holding I mean the Court's rule permitting a search of the vehicle for evidence of the crime of arrest.
13. Gant, 129 S Ct at 1719 n 4 ("Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that the real possibility of access to the arrestee's vehicle remains.").
14. See, for example, Maryland v Wilson, 519 US 408, 414 (1997)
15. Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 71, 33 (1994) (noting that in 1994 alone there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops).
16. For empirical evidence of police protocol of securing arrestees before searching, see Myron Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 Wis L Rev 657, 674-76.
17. See Pennsylvania v Mimms, 434 US 106, 110 (1997) (ordering the suspect out of the automobile and "[e]stablishing a face to face confrontation diminishes the possibility . . . that the driver can make unobserved movements . . . [which] reduces the likelihood that the officer will be the victim of an assault."). The Supreme Court has held that police officers who execute a traffic stop may-with no additional justification-order the driver and any passengers out of the automobile.
18. See id at 111; Maryland v Wilson, 519 US 408, 414-15 (1997).
19. 541 US 615 (2004).
20. Id at 628 (Scalia, J, concurring in the judgment).
21. See, for example, Petitioner's Brief on the Merits, Arizona v Gant, No 07-542, 24-27, 29-37 (S Ct filed May 12, 2008) (citing statistics of officer assaults and shootings during arrests, including traffic arrests) ("Petitioner's Merits Brief").
22. Amici Curiae in Support of Petitioner, Arizona v Gant, 129 S Ct 1710, 24-33 (S Ct filed May 19, 2008) (arguing that police need a clear rule in the dangerous and uncertain circumstances surrounding arrests of potentially dangerous individuals)
23. Motion for Leave to File and Brief of Amicus Curiae National Association of Police Organizations, Inc. in Support of Petitioner, Arizona v Gant, 129 S Ct 1710, 2-4 (S Ct filed April 2008) (citing evidence from FBI Uniform Crime Report that 42 percent of officer killings and assaults occurred while officers were conducting traffic stops or making arrests and arguing for a clear rule)
24. Motion to File Brief and Brief Amici Curiae of Americans for Effective Law Enforcement, Inc., the International Association of Chiefs of Police, the National Sheriff's Association, the Arizona Law Enforcement Legal Advisors' Association, and the Arizona Association of the Chiefs of Police, Arizona v Gant, No 07-542, 11-16 (S Ct filed Mar 25, 2008) (describing dangers inherent in traffic stops and arguing for clear rule to protect officer safety).
25. See, for example, Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Respondent, Arizona v Gant, No 07-542, 8-11 (filed July 25, 2008) (arguing that "the current search-incident-to- arrest doctrine encourages officers to arrest people whom they would not otherwise arrest, in order to conduct exploratory searches they would not ordinarily be allowed to conduct").
26. See, for example, David A. Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretext Stops, 87 J Crim L & Criminol 544 (1997) ("Driving While Black") (Pubitemid 127445688)
27. David A. Harris, Car Wars: The Fourth Amendment's Death on the Highway, 66 Geo Wash L Rev 556 (1988) ("Car Wars").
28. See Whren v United States, 517 US 806, 813-16 (1996).
29. See Gant, 129 S Ct at 1720-21 (noting the widespread observation that a broad reading of Belton gives police limitless discretion to conduct exploratory searches and citing sources).
30. John Wesley Hall, Column from the President: A Great Awakening, 33 Champion 5 (June 2009). Hall is the President of the National Association of Criminal Defense Lawyers, Inc.
31. Brian Smith, Local Opinions Mixed on Vehicle Search Decisions, Richmond Register (May 2, 2009), available online at http://www.richmondregister.com/ archivesearch/local-story-122215814.html (quoting Gerald Ross, staff attorney advisor for the legal training section of the Department of Criminal Justice Training at Eastern Kentucky University).
32. See South Dakota v Opperman, 428 US 364 (1976).
33. 395US 752 (1969).
34. Marron v United States, 275US 192, 199 (1927) (cited in Chimel ).
35. See Go-Bart Importing Co. v United States, 282 US 344 (1931)
36. United States v Lefkowitz, 285US 452 (1932).
37. 339 US 56 (1950).
38. 331 US 145(1947).
39. Rabinowitz, 339 US at 62-63.
40. See Chimel, 395US at 760 n 4
41. citing Ker v California, 374 US 23, 42 (1963)
42. Abel v United States, 362 US 217 (1960)
43. Draper v United States, 358 US 307 (1959)
44. Kremen v United States, 353 US 346 (1957) (per curiam)
45. Chapman v United States, 365US 610 (1961)
46. Jones v United States, 357 US 493 (1958)
47. Chimel, 395US at 767-68
48. citing United States v Kirschenblatt, 16 F2d 202 (2d Cir 1926) (concluding that the search incident to arrest doctrine had come to resemble the general warrants against which the Fourth Amendment was adopted).
49. Chimel, 395US at 754.
50. This point was implicit in Chimel but not completely clear until the Court's opinion in United States v Robinson, 414 US 218 (1973).
51. Chimel, 395US at 763.
52. In United States v Robinson, 414 US 218 (1973), the Supreme Court held that an arrest triggers a full search of the person of the arrestee (including pockets and containers) without the case-by-case analysis ordinarily required by Chimel. In Robinson, the defendant was stopped and arrested for driving on a revoked license. Id at 220. When the officer conducted a search incident to arrest of the arrestee, he found a crumpled cigarette package, opened it, and found gelatin capsules that were later determined to contain heroine. Id at 222-23. The Supreme Court held that if the custodial arrest is lawful, a full search of the person of the arrestee-including pockets and containers- "requires no additional justification." Id at 235.
53. 453 US 454 (1981).
54. See Wayne R. LaFave, 3 Search and Seizure: A Treatise on the Fourth Amendment § 7.1(c) at 515-16 (West, 4th ed 2004).
55. See Robinson, 414 US at 235-36 (1973).
56. 541 US 615 (2004).
57. 128 S Ct 1710 (2009).
58. Belton, 45 3US at 460 n 3
59. Gant 129 S Ct at 1722-23 1724- 25(Scalia, J, concurring) 1725(Br eyer, J, dissenting) 1727 (Alito, J, dissenting).
60. Belton, 453 US at 468.
61. Gant, 129 S Ct at 1719.
62. Id at 1723, quoting Belton, 453 US at 460.
63. Belton, 453 US at 459-60 (emphasis added).
64. In Robinson, 414 US 218, the Supreme Court held that upon arrest, police may do an automatic and virtually unlimited SITA of the person of the arrestee. It likely does not include body cavity or other such intrusive searches.
65. Belton, 453 US at 459, 461
66. quoting Robinson, 414 US at 235.
67. Chimel, 395US at 753.
68. Id at 762-63. See Robinson, 414 US 218, 235(holding that the SITA is "not only an exception to the warrant requirement of the Fourth Amendment but is also a 'reasonable' search under that Amendment").
69. Gant, 129 S Ct at 1728-29 (Alito, J, dissenting).
70. Id at 1724 (Scalia, J, concurring)
71. id at 1725(Br eyer, J, dissenting).
72. Id at 1725(Sc alia, J, concurring).
73. Id at 1726 (Breyer, J, dissenting). Justice Breyer joined Justice Alito's dissent except as to Part II-E, which defended Belton and Chimel.
74. See Brief Amicus Curiae of the ACLU and the ACLU of Florida in Support of Respondent, Arizona v Gant, No 07-542, 17-19 (S Ct filed Oct 19, 2007)
75. Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Respondent, Arizona v Gant, No 07-542, 8-11, 15-25 (S Ct filed Oct 19, 2007).
76. See Harris, Car Wars, 66 Geo Wash L Rev at 567-76 (cited in note 22)
77. see LaFave, 3 Search and Seizure § 5.2(e), (f), (g) at 114-25 (cited in note 50) (discussing problem of pretext search and possible solutions).
78. 532 US 318 (2001) (holding that the Fourth Amendment permits a suspect to be arrested for a non-jailable criminal offense such as failure to wear a seatbelt).
79. Virginia v Moore, 553 US 164 (2008) (holding that a police arrest in violation of a state law making a particular violation subject to citation only does not require exclusion of evidence under the Fourth Amendment).
80. 517 US 806 (1996).
81. See, for example, Randall Kennedy, Race, Crime, and the Law 137 (1997) (arguing that police use race as evidence of the increased risk of criminal conduct)
82. Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L J 214, 220, 236-39 (1983) (criticizing the use of race as a signal of involvement in criminal activity)
83. Angela J. Davis, Race, Cops, and Traffic Stops, 51 Miami L Rev 425, 431 (1997) ("Empirical evidence suggests that race is frequently a defining factor in pretextual traffic stops.").
84. Randall Kennedy, Blind Spot, Atlantic Monthly 24 (Apr 2002).
85. See, for example, Harris, Driving While Black, 87 J Crim L & Criminol at 572 (cited in note 22).
86. See Whren v United States, 517 US 806 (1996).
87. See, for example, Pamela S. Karlan, Race, Rights, and Remedies in Criminal Adjudication, 96 Mich L Rev 2001 (2001) (describing the barriers facing § 1983 suits for damages or injunctions under the Equal Protection Clause).
88. 532 US 318 (2001).
89. See id at 371-72 (O'Connor, J, dissenting).
90. See United States v Robinson, 414 US 218, 224 (1973) (opining that the search incident to arrest is comprised of "two distinct propositions . . . that a search may be made of the person of the arrestee . . . . [and] that a search may be made of the area within the control of the arrestee").
91. Police did not claim that the cigarette package felt like a weapon, which would have justified removing and perhaps opening it under the "plain feel" doctrine. See Minnesota v Dickerson, 508 US 366 (1993).
92. Robinson, 414 US at 234 & n 5.
93. Chimel v California, 395US 752, 763 (1969).
94. 541 US 615, 630 (2003).
95. Id at 630 (Scalia, J, concurring).
96. Arizona v Gant, 129 S Ct 1710, 1719 (2009).
97. A 2005report by the Bureau of Justice Statistics found that 57.6 percent of all searches of drivers or their vehicles during a traffic stop were conducted with the consent of the driver. Bureau of Justice Statistics, Contacts Between the Police and the Public 2005, 6 (2007). The Texas Department of Safety has collected four years of data on traffic searches. In the third and fourth year of the study, when the department kept the most comprehensive statistics, it reported that approximately 36 percent of searches were conducted pursuant to consent.
98. Steven R. Wolfson, Racial Profiling in the Texas Department of Public Safety Traffic Stops: Race Aware or Race Benign? 8 Scholar 117, 172-73 (2006).
99. See also Dennis Rosenbaum and Alexander Weiss, Illinois Traffic Stops Statistics Study: 2008 Annual Report 10 (2008) (finding that 91 percent of drivers gave police their consent to search)
100. Robin Engel et al, Project on Police-Citizen Contacts: Final Report 2006, 53 (2006) (a 2006 report on traffic stops in Philadelphia found that consent searches made up 68.5percent of total searches and 41 percent of drivers were searched based solely on consent).
101. Schneckloth v Bustamonte, 412 US 218 (1973) (holding that a person's knowledge that he has the right not to consent is only one factor to be taken into account in determining whether his consent was voluntary)
102. Ohio v Robinette, 519 US 33 (1996) (holding that a suspect who has been lawfully seized need not be advised that he is "free to leave" before his consent to search will be found voluntary).
103. If police tell the arrestee that they can (and will) arrest the driver and impound the vehicle if consent is not forthcoming, this statement of fact is unlikely to be treated as a threat for Fourth Amendment purposes. See LaFave, Search and Seizure § 8.2(c) at 69-75 (cited in note 50).
104. Robinson, 414 US at 235.
105. 500 US 565 (1991) (authorizing a search of the entire vehicle if police have probable cause to believe there is evidence of crime within).
106. See South Dakota v Opperman, 428 US 364, 368 (1976)
107. Colorado v Bertine, 479 US 367, 375(1987). In analyzing impoundments, lower federal courts carefully scrutinize the existence and sufficiency of standardized impoundment policies and most require an affirmative showing that impoundment was justified by public safety or community care taking purposes.
108. See, for example, United States v Bridges, 245F Supp 2d 1034, 1034-35 (SD Iowa 2003) (finding impoundment unlawful where no written policies and purpose not related to public safety or community caretaking)
109. United States v Donnelly, 885F Supp 300 (D Mass 1995) (finding impoundment unlawful because policies did not adequately constrain police discretion to impound)
110. United States v Best, 415F Supp 2d 50 (D Conn 2006) (finding impoundment lawful because ordered pursuant to standardized procedures and for legitimate community caretaking purposes).
111. Gant, 129 S Ct at 1714.
112. US Const, Amend IV. While Fourth Amendment cases use various phrases to explain the meaning of probable cause, virtually all Fourth Amendment holdings use this precise term except in cases where only reasonable suspicion is required.
113. Gant, 129 S Ct at 1714, 1721, 1723. I am assuming that "reason to believe" and "reasonable to believe" mean the same thing.
114. Thornton, 541 US at 632.
115. See California v Acevedo, 500 US 565 (1991).
116. Gant, 129 S Ct at 1721
117. (citing United States v Ross, 456 US 798, 820-21 (1982)). The dissent also seems to agree that the majority's test is not equivalent to probable cause.
118. Gant 129 S Ct at 1731 (Alito, J, dissenting).
119. Id at 1725(emph asis added).
120. Id at 1724 (quoting Michigan v Long, 463 US 1032, 1049 (1983)).
121. Thornton, 541 US at 632.
122. Id at 630 (emphasis added). Justice Scalia's reasoning in Thornton harkened back to a pre-Chimel line of cases in which post-arrest searches relied on a "more general interest in gathering evidence" relevant to the crime of arrest. Id (citing United States v Rabinowitz, 339 US 56 (1950)). In applying the Rabinowitz rule, most lower courts required only probable cause for the arrest without regard to the likelihood that evidence of the crime of arrest would actually be found at the place of arrest. Thus the arresting officer was permitted to conduct a search of the entire premises in which the arrestee had a "possessory interest" as long as the defendant was arrested on the premises and not elsewhere.
123. See generally LaFave, 3 Search and Seizure § 6.3(b) at 348-50 (cited in note 50). A few lower courts treated the arrest and search as separate events and held that the post-arrest search was justified only if police had reason to believe that "articles subject to seizure are concealed at the place of arrest" but most did not. Id
124. quoting United States v Antonelli Fireworks Co., 53 F Supp 870 (WDNY 1943).
125. 392 US 1, 21 (1968) (holding that police must be able to identify "articulable facts which, taken together with rational inferences from these facts, reasonably warrant" the stop or frisk).
126. 387 US 523 (1967).
127. 392 US 1 (1968).
128. See also Anthony Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 388 (1974) (calling the Fourth Amendment "monolithic").
129. See, for example, Mich. Dep't of State Police v Sitz, 496 US 444 (1990) (roadblocks)
130. NJ v TLO, 469 US 325(1985 ) (searches of students by school officials)
131. School District 47J v Acton, 515 US 646 (1995) random urinalysis drug testing of students).
132. 529 US 266 (2000).
133. United States v Sharpe, 470 US 675(1985).
134. See generally Moskovitz, 2002 Wis L Rev at 657 (cited in note 15).
135. Id at 682-85(citing cases). See, for example, United States v Turner, 926 F2d 883
136. (9th Cir 1991); State v Murdock, 455 NW2d 618 (1990).
137. Moskovitz, 2002 Wis L Rev at 685-88 (cited in note 15) (citing cases).
138. See, for example, People v Summers, 86 Cal Rptr 2d 388 (Ct App 1999)
139. Stackhouse v State, 468 A2d 333 (Md 1983).
140. See Arizona v Gant, 129 S Ct 1710, 1730-31 (2009) (Alito, J, dissenting) (assuming that Gant's first holding should apply to "all arrestees" and noting that if scope of a search is determined at the time of the search, the Chimel rule will "rarely come into play").
141. Thornton, 541 US at 630.
142. 533 US 27 (2001).
143. In Kyllo, Justice Scalia wrote for the Court that the use of a thermal imager to detect infrared radiation inside of a house constituted a Fourth Amendment search requiring probable cause and a warrant.
144. See Payton v New York, 445US 573 (1980). Payton, which held that police need an arrest warrant in order to enter a suspect's home to arrest him, was decided before Justice Scalia was on the Supreme Court. Of the Justices who were on the Court when Payton was decided, only Justice Stevens remains.
145. See, for example, Rakas v Illinois, 439 US 128 (1978) ("This is not an area of the law in which any 'bright line rule' would safeguard both Fourth Amendment rights and the public interest in a fair and effective criminal justice system. The range of variables in the fact situations of search and seizure is almost infinite.")
146. Ohio v Robinette, 519 US 33 (1996) ("In applying [the reasonableness] test we have consistently eschewed bright line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.")
147. Michigan v Chesternut, 486 US 567 (1988) ("Both petitioner and respondent . . . in their attempts to fashion a bright-line rule applicable to all investigatory pursuits, have failed to heed this Court's clear direction that any assessment as to whether police conduct applies to a seizure implicating the Fourth Amendment must take into account all of the circumstances surrounding the incident in each individual case.").
148. 434 US 106 (1977).
149. 519 US 408 (1977).
150. Mimms, 434 US at 110.
151. See also Wilson, 519 US 408 (reasoning that passengers as well as drivers may employ violence to prevent police from discovering contraband in their automobiles).
152. 414 US 218 (1973).
153. New York v Belton, 453 US 454, 458 (1981).
154. Gant, 129 S Ct at 1723.
155. Belton, 453 US at 458
156. (citing Wayne R. LaFave, "Case-by-Case Adjudication" versus "Standardized Procedures": The Robinson Dilemma, 1974 Supreme Court Review 127, 142).
157. See generally Rachel A. Harmon, When Is Police Violence Justified? 102 Nw U L Rev 1119 (2008) (arguing for a doctrine of excessive force that takes account of police officers' individual and institutional regard for their own safety).
158. See Gant, 129 S Ct at 1730 (Alito, J, dissenting).
159. The dissent in Mimms claimed that police generally require vehicle occupants to remain in their automobiles during a traffic stop, see 434 US at 119-20 (Stevens, J, dissenting)
160. 129 S Ct 1710 (2009).