Wednesday, April 22, 2009


On April 21, the U.S. Supreme Court decided a case that significantly reduces a police officer’s ability to conduct a search incident to arrest when the person arrested was in a vehicle. The case is Arizona v. Gant.

As I’ve explained before, search incident to arrest is an exception to the 4th Amendment’s warrant requirement. The 4th Amendment requires that searches be reasonable, and the reasonableness requirement can be satisfied either by a warrant (a search warrant, in this instance) or by an exception to the warrant requirement.

The search incident exception lets a police officer search the person being arrested and the area immediately around the person (the lunge area) to find weapons and evidence. The rationale for letting an officer search has two parts: The first premise is that when an officer takes someone into custody, that creates a potentially dangerous situation; it is therefore reasonable to let the officer search for and seize any weapons that could be used against the officer (or anyone else). The other premise is that it is reasonable to let the officer search the person for evidence of crime to prevent him from destroying it.

Gant isn’t about the part of search incident that lets an officer search the person being arrested; it’s about the scope of a search of the area around the person being arrested. For arrests that are made anywhere other than in a vehicle, the Supreme Court uses a fact-sensitive test. That is, in each case the officer has to justify why he searched a particular area. So if, say, an officer arrests someone in a small motel room and then searches under the bed, claiming it’s part of search incident to arrest, the officer will have to convince the court that he had good reason to search under the bed. If, say, the suspect didn’t have shoes on and the officer were going to let him reach under the bed to get his shoes, then it would be reasonable for the officer to check under the bed.

Until yesterday, when an officer arrested someone in a vehicle, a special rule – called the Belton rule – applied to the scope of the search incident of the lunge area. In the Belton case, the Supreme Court held that a standard test defines the lunge area when someone is arrested in a car. Under Belton, an officer could search the passenger compartment of the vehicle – including the glove compartment and console – plus any containers in the passenger compartment. Containers included anything that could hold evidence or a weapon . . . bottles, a jacket pocket, a purse, etc.

The U.S. Supreme Court didn’t explicitly address this issue, but over the years most lower courts held that the officer could conduct a Belton search even though the person being arrested was in handcuffs in the back of a patrol car. Some state courts said that didn’t make any sense, because if the person isn’t going to get back in the car, there’s no reason to let the officer do a Belton search because the person can’t grab any weapons in the car or destroy evidence in it. Most courts, though, held that Belton applied even if the person was in a police cruiser and was not getting back into the car. Indeed, that’s what happened in the Belton case; Belton was under arrest and in handcuffs and definitely not getting back in the car, but the Court said the search was a valid search incident to arrest.

For several years, I’ve been speculating about whether Belton could be used to justify a search of the files on a laptop that was in the passenger compartment of the vehicle in which the driver was arrested. I found a lower-court case in which the court said the government argued that such a search would be proper . . . but since that issue really wasn’t before this court, it didn’t rule on whether such a search would be proper under Belton or not.

Well, Belton’s gone . . . that’s what Gant has done. The Gant Court held that
[p]olice 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.
Arizona v. Gant, supra.

That’s going to make things interesting. Under Belton, officers could open a container in a vehicle without having probable cause to believe it contained evidence; the Supreme Court has held that in the context of arrests, we need “bright line” rules, i.e., rules that are standardized. The rationale was that arrests can be dangerous, fluid situations and we don’t want officers having to figure out whether they can search an area or not. Now they’re going to have to do just that.

I assume (and I’d hope) that officers aren’t going to leave arrestees in a vehicle just so they can search it; that seems a very dangerous thing to do. So pretty much the only time they’ll be able to do a search incident of the vehicle is when they have reason to believe there’s evidence of the crime for which the person has been arrested. (I assume reason to believe is less than probable cause because officers can search a vehicle under a different exception, the vehicle exception, if they have probable cause to believe it contains evidence of a crime.) That’s significant: it means that if someone is arrested on a traffic violation, it’s going to be very hard for an officer to search a vehicle under the search incident exception . . . because as many defendants have pointed out, it isn’t likely that evidence of the traffic violation (not having an operator’s license, for example) will be found in the vehicle.

So where does that leave us with the laptop in the vehicle of someone who’s been arrested? It looks like it’s going to be hard to search the laptop under this exception. I suppose if an officer arrested someone for having such perpetrated a terrorist bombing, the officer MIGHT be able to search the laptop he/she found in the arrestee’s car. I’m really not sure. I am sure that this is going to make it much, much harder to use the vehicle search incident exception to search a laptop.

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