Tuesday, April 21, 2009

SCOTUS rolls back police search authority at traffic stops

Here's some good news for liberty-loving drivers:

The US Supreme Court today issued a rare pro-4th Amendment decision to restrict vehicle searches incident to arrest. In a 5-4 ruling, the high court held in Arizona v. Gant that "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."

The majority lamented that "Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result."

In a concurring opinion, Justice Scalia wrote that:
Law enforcement officers face a risk of being shot when-ever they pull a car over. But that risk is at its height at the time of the initial confrontation; and it is not at all reduced by allowing a search of the stopped vehicle after the driver has been arrested and placed in the squad car.
Bottom line, said the court: "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."

Though Gant is a relatively narrow ruling, one hopes it portends a renewed commitment to basic Fourth Amendment protections which have been battered and abused by the Court recent years.

RELATED: See the SCOTUSWiki page on the case.

MORE: From Mark Bennett at Defending People, Mark Sherman at the Huffington Post, Debra Weiss at the ABA Journal, Orin Kerr at the Volokh Conspiracy, Gideon at A Public Defender, and Scott Greenfield at Simple Justice.

AND MORE: See a discussion of the case from the TX prosecutors' user forum.


Anonymous said...

Actually, this is HUGE. The first real roll-back in ages, and one that will prevent probably 99% of the searches in my jurisdiction.

Anonymous said...

Anon, you still have the inventory search issue to be wary of. I don't know the rules for impounding vehicles, but I believe them to be fairly loose.

Back when I was in college a few years ago, I took a civil liberties class that had one student who was actually a high ranking police officer of some northeast Texas podunk. When discussing warrantless searches of vehicles, said officer said that if the driver refused a consent search, his preferred method of searching the vehicle was just to arrest the driver and impound the vehicle, and conduct the inventory search back at the station instead of at the road side.

Now, of course, being that it's a podunk, that officer may well be overstepping his bounds. However, no one, including officers in other larger jurisdictions, piped up about how that was an abuse of the impound policy, so either it's not or it's at least widely thought to be that wide open.

doran williams said...

Yes, this could be a very big deal, particularly if stoopped drivers respond correctly: Get out of your car, after parking it off road if possible, and walk away from it in the direction of (toward) the peace officer who made the stop.

This ruling will have no effect on "inventory" searches if an arrest is made and the vehicle is impounded.

Scalia was in the majority? Did I read that correctly?

Anonymous said...

Doran, it's an odd majority. Essentially, it's Thomas/Stevens/Souter/Ginsberg of one mind, Alito/Roberts/Kennedy/Breyer of another, and Scalia has come to a third conclusion.

Scalia, essentially, wants to dispose of the whole "officer safety" argument entirely, and say that search incident to arrest only applies if the cops are searching for further evidence of the crime the suspect has been arrested for. But since no one else agrees with him, he's basically got a choice of leaving the current system in place or doing this artificial narrowing to the conditions in Chimel(where the search is justified by officer safety if the suspect is unsecured in proximity to the area to be searched).

He concludes the former "opens the field to what I think are plainly unconstitutional searches - which is the greater evil" and so joins with the latter.

123txpublicdefender123 said...

I agree that this is a HUGE, not a narrow decision at all. I can't tell you how many of my drug cases involve people who are arrested for driving with a suspended license or for a warrant, followed by the cops searching the car incident to arrest and finding drugs. Of course, they can still impound the vehicle and do inventory searches, but that takes a lot more time and energy, so, as a practical matter, I think this will have a measurable effect in reducing searches of vehicles incident to an arrest.

Of course, I suppose the cops could now intentionally keep the person by the car so they can search instead of putting him or her in their patrol car. It should be interesting to see how this plays out in departments around the country.

I'm just thrilled that the 4th Amendment came out on top in a SCOTUS case. I can hardly believe it!

Gritsforbreakfast said...

123txpublicdefender - the reason I said it was "narrow" is that it only applies when there's an arrest. Most traffic stops don't involve putting the driver in cuffs in the back of the police car, so as Scalia noted, the court's existing precedents would allow searches in those circumstances. Scalia wrote:

"It must be borne in mind that we are speaking here onlyof a rule automatically permitting a search when the driver or an occupant is arrested. Where no arrest is made, we have held that officers may search the car ifthey reasonably believe “the suspect is dangerous and . . . may gain immediate control of weapons.” Michigan v. Long, 463 U. S. 1032, 1049 (1983). In the no-arrest case, the possibility of access to weapons in the vehicle alwaysexists, since the driver or passenger will be allowed toreturn to the vehicle when the interrogation is completed.The rule of Michigan v. Long is not at issue here."

Anonymous said...

The court did not eliminate inventories of vehicles which are made after an arrest.

The officers should have made an inventory of the vehcile prior to impoundment. They would have been on solid ground.

Anonymous said...

1.) Warrantless inventory searches are unaffected by this decision. The Tucson Police could not do a warrantless inventory search in this case because the car was parked in the defendant's driveway. Consequently there was no basis for impounding the car and doing an inventory search before the tow truck arrived. After the fact they tried to justify it as a warrantless search incident to arrest under Belton. It didn't work.

2.) All that Texas law enforcement needs to do to accomodate itself to this decision is to contact reputable Arizona law enforcement agencies (i.e., NOT the Maricopa County Sheriff) and see what they've been doing for the past two years since the Arizona Supreme Court issued its opinion.

123txpublicdefender123 said...

Scott, I know you are saying this is narrow because it only applies to arrests, but I'm telling you that it affects a lot of cases. I have had literally hundreds of cases of people who were arrested from their car for a warrant or for driving with a suspended license. The cop would then call out the drug dog to search the vehicle incident to arrest or search the entire car himself. This happens ALL the time. This decision by SCOTUS makes that a much more difficult proposition.

Most of the time, officers do NOT have probable cause to do a warrantless search under the vehicle exception. And a lot of agencies don't do inventory searches because it takes a hell of a lot of time. Instead, if they do impound the vehicle, they just send it to the lot.

Anonymous said...

Correct, this does nothing in the way of inventory searches.

In this case, the police could not justify the increased search adequately and thus the search was thrown out at the supreme court level.

I must say that I have never actually searched an entire vehicle based on this type of case with the exception of marijuana. But of course that fell under the "plain smell" exigent circumstance, which amounts to probable cause.

This won't affect my way of doing business in ANY way.

Anonymous said...

Oh by the way, I must add that I agree with the supreme court's decision.

Mark#1 said...

It's very big. Formerly, they could search the vehicle upon arrest, even when the car was to be released to another occupant. Now, to get into the car absent other probable cause, the cops have to impound the vehicle.

Todd said...

All this is going to do is keep the officers from releasing the car to another person at the scene so that they can conduct an inventory. 123publicdefender123, I disagree that an inventory is a big hassle. At least, it isn't for large agencies. It may be an issue for more rural areas though.

Anonymous said...

Mark #1,

If they're releasing the car to a third party at the scene, then the police have a right to search the car for weapons under the officer safety exception to the warrant clause. Sorry.

Anonymous said...

Perhaps this decision will make the inventory seach open to legal challenge? It seems like one of Texas's many attempts to circumvent Marbury V. Madison in my book.

Anonymous said...

The discussion from the prosecutor forum is rather terrifying. Does anyone know how we can get the justice department, the ACLU, and the New York Times to take notice of this?

It's my full belief that much of what happens in the Texas "justice" system is unconstitutional and only occurs because the rest of the country has no idea how bad it is here.

They understand the death penalty - but there is not way they could imagine the magnitude of civil rights deprivation that we have here because the rest of the country lives in societies that are more vigilant on such issues.

The prosecutor forum is a helpful tool because it shows what the DAs are actually thinking - in all the flagrant disregard of the constitution.

Anonymous said...

It would be great if the inventory searches were held to be invalid.

That way the police could not be held civilly or criminally liable if anything were to be missing from the vehicle.


Anonymous said...

Anon @10:17, a finding against inventory searches wouldn't stop inventory searches from actually occurring, because they do have to occur, it'd just result in the evidence found not being admissible in court.

It'd just mean that, if you want to impound a vehicle that you think contains evidence of a crime, you'd best find a PC rationale quickly or else lose your chance forever once the tow truck arrives and the inventory is done.

Or maybe it'd just be that evidence found in an inventory search that's relevant to the basic offense is admissible, and everything else isn't. So, if you've arrested the driver on possession of cocaine, and the inventory search turns up more cocaine, that's usable. But, if you arrested the driver for driving with a broken taillight, and the inventory search turns out marijuana, sorry, that's inadmissible.

I'm sure there's several other ways to limit inventory searches to avoid the current abusive form, and some easy legislative fixes too. For instance, you could just fix the issue of when the officer has the power to arrest that was blown wide open in Atwater v. City of Lago Vista and that Rick Perry's twice vetoed working fixes for, or by limiting the situations in which vehicles can be impounded.

Gant is a good first step back toward a sane policy of dealing with automobile searches.

Anonymous said...

Hey 03:24 p.m. what if you arrested someone for a DWI and found a dead body?

The dead body had NOTHING to do with the DWI.


If inventory searches would result in inadmissible evidence, police would be forced to not use them. However they would have to have legal protection from people claiming their valuables were stolen.