Is Gant the biggest (criminal procedure) case since Miranda?
Who knows?
Miranda is arguably the biggest 5th Amendment case of all time.
Will Gant be the biggest 4th Amendment case?
For 28 years, police officers all over the United States had a “free” search of the passenger compartment of vehicles after they had arrested an occupant out of a vehicle.
[1] No more.
First, what do we mean by “free?”
All legal “rules” must be tied to a rationale – a reasoning. We all learned that in law school. Some how the search incident to arrest rule became unanchored from its rationale, i.e. the search incident to arrest doctrine as applied to vehicles had, over the last 28-year period, lost its “reason” for existence.
Originally, the rationale for the search incident exception to the warrant requirement was to protect officers from an arrestee’s lunging to access a weapon or destroy evidence.
In order to understand the importance of this issue (and the Gant decision), attorneys (and officers) must understand the following “trilogy” of United States Supreme Court cases, which culminates in Gant.
Chimel v California (1969)
The holding in the landmark case of Chimel v California
[2] was basically that, after the lawful arrest of Chimel, officers could not search other rooms in the house because Chimel could not access them.
In Chimel, officers arrested the suspect and then discovered valuable evidence related to the crime in another room. The Supreme Court said that the search incident doctrine required that the search be limited to areas where Chimel could access a weapon or destroy evidence, areas within Chimel’s immediate control at the time of the arrest.
New York v Belton (1981)
Twelve years later the United States Supreme Court tackled a search incident to arrest case involving a vehicle. This occurred in New York v Belton.
[3] In Belton, an officer lawfully arrested four occupants of a vehicle, one of whom was Belton, and placed them at the four exterior corners of the vehicle. The officer did not handcuff the arrestees. The officer found Belton’s jacket in the back seat, unzipped a pocket and found drugs. . The Court decided to create the “bright-line” rule in this situation that officers could always search the passenger compartment of a vehicle, and closed containers therein, incident to the valid custodial arrest of an occupant of the vehicle.
Most state courts, including Illinois, interpreted this to mean that officers could search the passenger compartment whether the arrestee was handcuffed or not. Illinois courts went even a step further ruling that locked containers in the passenger compartment could be searched incident to a valid custodial arrest. In People v Tripp,
[4] for example, the Illinois court of Appeals, District 1 held that officers could search a locked foot locker in the passenger compartment, explaining as follows:
“Even though the defendant may no longer have access to the vehicle and may be restrained in custody, the police are still free to search the vehicle.
Bailey, 159 Ill.2d at 506, 203 Ill.Dec. 459, 639 N.E.2d 1278. Further, it has been held that locked glove compartments are subject to search as containers within the vehicle.
See United States v. Woody, 55 F.3d 1257 (7th Cir.1995).
In the present case, defendant was arrested after he failed to produce his driver's license and insurance and the police subsequently discovered a handgun beside the front passenger seat. At this point, defendant was under arrest for a weapons charge as well as a traffic violation. The officers were free to search the passenger compartment of the vehicle (
Bailey, 159 Ill.2d at 506, 203 Ill.Dec. 459, 639 N.E.2d 1278), including any containers found within the passenger compartment, such as locked glove compartments (
Woody, 55 F.3d at 1270), or a coat pocket that was zippered closed (
Belton, 453 U.S. at 460, 101 S.Ct. 2860). Based upon Belton and Bailey, we therefore find that the search of the locked footlocker, found within the passenger compartment of
*954
defendant's vehicle, was properly searched incident to his lawful arrest.”
But the United States Supreme Court had never decided the specific issue of whether passenger compartments or closed containers could be searched incident to a valid custodial arrest after the arrestee had been handcuffed – at least until Gant.
Arizona v Gant (2009)
In Gant, officers arrested Gant as he got out of his vehicle based on an arrest warrant for a suspended license. The officers then handcuffed Gant and searched the passenger compartment of his car, finding a weapon and drugs.
Both the Arizona Court of Appeals and the Arizona Supreme Court determined that Belton could not be construed to extend the search incident doctrine to situations where the arrestee had been handcuffed.
[5]The United States Supreme Court in Gant held that a car may not be searched incident to arrest after the arrestee has been handcuffed and placed in the patrol vehicle because at that point there is little chance that the arrestee can get to a weapon or evidence.
Other Vehicle Search Theories That Remain Viable
Although the search incident to arrest doctrine has been altered probably forever, the other long-standing theories for searching a vehicle remain the same. They are:
probable cause (the automobile exception);
[6]probable cause (warrant);
[7]consent;
[8]Terry doctrine;
[9]emergency / exigency doctrines;
[10]inventory;
[11] and
miscellaneous doctrines / theories.
[12]Issues Raised by Gant But Not Resolved
The Supreme Court resolved an important issue in Gant but raised some others. A couple of those issues will be important to Arizona attorneys and will inevitably have to be resolved by Arizona courts:
1. Will officers be permitted to search for evidence related to the arrest?
The majority stated, in dictum, that although officers cannot automatically conduct a search incident to arrest after the arrestee has been handcuffed, officers may search for evidence related to the arrest. This may be referred to as the “Scalia doctrine” as it was he who proposed this approach to the search incident doctrine in a case several years ago.
[13] An example would be that, if an occupant of a vehicle is arrested on an arrest warrant for drugs, the officers may search the vehicle for drugs.
It will undoubtedly be the burden of the officer to explain how the evidence searched for in the vehicle is related to the arrest.
[14]Furthermore, the “scope” of the search, under the Scalia doctrine, might well now extend to the trunk. Under the Belton doctrine, officers could not search the trunk – only the passenger compartment. But there is no reason why the Scalia doctrine should be so limited.
[15]2. Will the Gant doctrine be extended to premises and other areas?
Defense counsel will want to expand the Gant doctrine to situations not involving vehicles. In all likelihood, Arizona courts will rule that, once an officer handcuffs an arrestee in his / her home, officers will not be permitted to search pursuant to the search incident to arrest doctrine, except possibly under the Scalia doctrine (looking for evidence related to the arrest as discussed above).
3. Will officers be able to search if there are uncuffed occupants?
Most attorneys have long forgotten that Miranda was a 5-4 decision. So was Gant. (Most attorneys have already forgotten that too.)
So what did the dissenters say? Alito, writing the dissenting opinion, mentioned something in the last footnote that might prove salient:
“I do not understand the Court's decision to reach the following situations. First, it is not uncommon for an officer to arrest some but not all of the occupants of a vehicle. The Court's decision in this case does not address the question whether in such a situation a search of the passenger compartment may be justified on the ground that the occupants who are not arrested could gain access to the car and retrieve a weapon or destroy evidence. Second, there may be situations in which an arresting officer has cause to fear that persons who were not passengers in the car might attempt to retrieve a weapon or evidence from the car while the officer is still on the scene. The decision in this case, as I understand it, does not address that situation either.”
Conclusion
So is Gant the most important criminal procedure case since Miranda?
A strong argument could be made that, as it relates to law enforcement, it might well be. Only time will tell.
There is only one thing that is certain about Gant -- and that is the holding. Around the country, the vast majority of courts had interpreted Belton to mean that officers could always search passenger compartments incident to arrest, even after the arrestee had been handcuffed and placed in the back seat of the patrol car. Those states will be required to revise their case law to comply with Gant.
[16]Will officers now leave arrestees un-cuffed while they search vehicles in order to comply with Gant and Belton? Probably. Will officers be injured – or even die – in the process?
Well, at least the courts (and officers) know now the search incident to arrest rule is anchored to a rationale, at least for the time being….
[1] In many states. officers were permitted to search even locked containers in the passenger compartment under this theory. See, e.g., People v Dieppa, 830 NE2d 870 (Il. App. 2005), where the court held that, although the arrestee was handcuffed and secured in the patrol car, officers could search a locked glove box in the arrestee’s vehicle.
[2] 395 U.S. 752 (1969)
[3] 453 U.S. 454 (1981)
[4] 306 Ill. App.3d 941, 715 N.E.2d 689 (1999)
[5] 216 Ariz. 1, 162 P.3d 640 (2007)
[6] See e.g. Chambers v Maroney, 399 U.S. 42 (1970)
[7] See e.g. Coolidge v New Hampshire, 403 U.S. 443 (1971)
[8] See e.g. Schneckloth v Bustamonte, 412 U.S. 218 (1973)
[9]See e.g. Michigan v Long, 463 U.S. 1032 (1983)
[10] The exigency / emergency doctrine has more or less been supplanted by the automobile exception. See Texas v White, 423 U.S. 67 (1975)
[11] See e.g. Florida v Wells, 495 U.U. 1 (1990)
[12] These searches are very limited in number. See e.g. New York v Class, 465 U.S. 106 where the Court held that warrantless VIN searches were justified during traffic stops.
[13] Thornton v United States, 541 U.S 615, 124 S.Ct. 2127 (2004)
[14] After the Chimel decision forty years ago, no one, except Scalia, to the knowledge of the authors, has proposed that evidence of a crime could be subject of a search without probable cause (or in the case of a weapon, reasonable suspicion). So this will be a new doctrine that Arizona courts will have to wrestle with to work out the contours. Stevens, in his majority opinion, described the level of proof as “might” be and “likelihood” that crime-related evidence would be there. Arizona v Gant, 129 S.Ct. at ___. Although this issue is somewhat beyond the scope of this brief article, it is a question which probably will arise early in the case law. Possibly the courts should choose “reasonable suspicion” as the standard of proof even though that standard has already been rejected by the Supreme Court as a “legal thicket” in Arizona v Hicks, 480 U.S. 385 (1978). Determining the parameters of this doctrine might be somewhat like punching the proverbial tar baby, so for purposes of this article, suffice it to say this will, in all “likelihood,” be an issue.
[15] Again, if the rationale for the Scalia doctrine is that there might be evidence related to arrest in the vehicle, why should the scope be limited to passenger compartment? In Belton, the United States Supreme court stated that the trunk was off-limits during a search incident to arrest as there was almost no possibility that the officer could access the trunk.
[16] That includes Illinois which had numerous cases expanding the Belton doctrine to include searches of the passenger compartment and even locked containers after the arrestee had been handcuffed.
Labels: Arizona, Illinois
