In April 2009 the U. S. Supreme Court handed down an opinion in Arizona v. Gant; this case has the potential of being quite significant in effect. This little essay is an attempt to eke out the principal parts and offer the casual reader some of the background that precipitated the holding in the opinion. Why would a person in an automobile be concerned? Millions of folks in motor vehicles have encounters with law enforcement officers—some are reasonable, but most are distressing or at least unpleasant. The opinion in Gant has the effect of placing a restriction on police behavior and reins in what could be described as an abuse of past rulings in conducting warrantless searches of motor vehicles. It is a change-of-course turning more toward a fundamental principle of the Fourth Amendment to the U.S. Constitution.
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures shall not be violated, . . ..
The words seem understandable and straightforward, but there is a collection of U.S. Supreme Court cases with decisions which seem to depart from that characteristic particularly over the past sixty years. One might ask the question: ‘what search would be reasonable absent a warrant issued by a court’? The general rule of the Court is that all such are unreasonable save for a few particular exceptions. One exception has to do with motor vehicles; the automobile has led to many ‘exceptional’ cases.
In the discussion which follows only the popular name of a case is noted in italics; the reader who wishes to do careful research will find the complete official citations for the U.S. Supreme Court and the Arizona Supreme Court cases referenced in the text at the end of this essay.
In the good old days matters seem to have been closer to the Fourth Amendment. In 1948 a statement in McDonald is exemplary of that sense:
“The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted.”
A couple of years later in 1950 the Court veered away in Rabinowitz in which case a warrantless search would be reasonable if law enforcement officers had a reasonable belief, considering all the circumstances, that evidence would be found. This gave the police officer a bit of a license to search; he needed only to articulate ‘reasonable belief’ later. Then in 1967 in Katz the Court ruled that persons may expect that their oral telephonic conversations from within a telephone booth would be protected even when there is a listening device installed—on the outside of the booth. That finding would seem a step closer to the Fourth Amendment.
Two years later in Chimel the Court laid out the standards for a search (i.e., that would be reasonable without a warrant) following a valid arrest. The officer may search the person of the arrestee for a weapon or evidence which might be destroyed, and further, he may search the area within the immediate control of the arrestee for a weapon or evidence. The setting of Chimel was a house; nonetheless, the same principles were employed in the setting of motor vehicles which had come into widespread use along with that of illegal drugs. The problems in the automobile context lay with the definition of area within immediate control.
In the 1981 case of Belton, the Court sought to establish a bright line rule. A warrantless search contemporaneous with and incident to a lawful arrest could be conducted throughout the entirety of the passenger compartment of the motor vehicle including any containers inside with the logic that an arrestee might reach for a weapon or evidence within that area. During the nearly thirty years which followed, law enforcement officers ran roughshod over the degree of contemporaneousness of the search and the ‘reach’ of the arrested person. A multitude of examples include instances where the individual was handcuffed and in custody in the rear of the police vehicle during the search, a circumstance in which the arrestee could hardly have had access to the passenger compartment. Footnote 5 of Gant indicates that, under Belton, police officers made arrests simply to condone exploratory searches. Police could generally stop someone in an auto for a minor violation of a statute, make a lawful arrest, and subsequently conduct a search of the vehicle. This type of abuse by law enforcement officers, termed ‘a broad reading of Belton’, evidently prompted the Court to act.
There were and continue to be lengthy arguments among jurists over what seems to be a relatively straightforward topic. It would be a mistake to think the matter is simple. Gant is evidence. Mr. Gant was arrested for driving with a suspended license; subsequently, the auto was searched, and cocaine was discovered. A major issue was whether the evidence should be suppressed as fruit of an unreasonable warrantless search. The evidence was admitted, and Gant was convicted of various offenses in 2002 at trial; the Arizona (AZ) Court of Appeals reversed; the AZ Supreme Court denied review. The State of AZ petitioned the U.S. Supreme Court for certiorari. The U.S. Supreme Court granted same, vacated the judgment of the AZ Court of Appeals, and remanded in light of an opinion rendered by the AZ Supreme Court in Dean wherein the finding on the issue of evidence suppression appeared at odds or inconsistent with that of the trial court in Gant. Upon remand, the trial court again decided the suppression issue the same way as it had done previously; again, the AZ Court of Appeals reversed—the same as it had done previously. The AZ Supreme Court in 2007 then agreed to review; it did so and affirmed the AZ Court of Appeals decision. This ‘Battle of the Courts’ led to the present case which is the subject of this essay. The U.S. Supreme Court in Gant affirmed the finding of the AZ Supreme Court.
The holding in Gant is the current rule; it is very particularly worded. The following excerpt from the majority opinion is underlined where special attention is due.
“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.”
At first glance one might conclude that the rule is that of Chimel but with a vehicle setting. Care must be taken, however, with “offense of arrest.” In the 2004 case of Thornton, while the opinion was based on Belton, the observation of two Justices was incorporated into the Gant holding—namely, that police may search upon reasonable belief there is evidence within the vehicle relevant to the offense of the arrest. That raises the question of how the courts will assess ‘reasonable belief (on the part of police officers) that evidence of the offense of the arrest’ will be found. Suppose someone is stopped and arrested for driving with a suspended driver’s license. Further, suppose the vehicle contains contraband that is carefully hidden from the view of an officer who is merely looking into the vehicle from the exterior unable to detect the contraband. Under the ‘broad reading of Belton’ the officer would conduct a warrantless search of the passenger compartment of the vehicle and likely make a discovery. Under Gant he would not be allowed to conduct the search for want of reasonable belief that evidence of a suspended driver’s license would be found. On the other hand someone might be stopped for speeding; and if the police officer then believes he detects the aroma of marijuana or believes he sees packaging which suggests cocaine, he could arrest for violation of drug use. In that event the officer may, under the Gant rule, search the vehicle.
Why be concerned? The average person ought to be aware of his/her Fourth Amendment rights and how the law enforcement community regards them. There is a gap between a person’s view of his or her own privacy and the actions of the police. Accordingly, the individual may wish to model his/her behavior.
In the wake of Gant will the police alter their approach and behavior (remember, they still have the power at that particular instant on a street or highway)? Will Gant result in fewer evidence suppression hearings? Will the costs of defending against abusive police action in the vehicle context be lessened? Though Gant is an improvement over Belton, I tend to think the answers to all three above questions are in the negative.
Arizona v. Gant, U.S. Supreme Court No. 07-542 (U.S. 4-21-2009)
McDonald v. U.S., 335 U.S. 451, 69 S.Ct. 191
U.S. v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430
Katz v. United States, 389 U.S. 347
Chimel v. California, 395 U.S. 752
New York State v. Belton, 453 U.S. 454
Arizona v. Dean, 206 Ariz. 158, 418 Ariz. Adv. Rep. 70, 76 P.3d 429
State of Arizona v. Gant, 216 Ariz.1, 162 P.3d 640
Thornton v. U.S., 541 U.S. 615, 124 S.Ct. 2127