August 2009, Page 58

Search & Seizure Commentary
By Timothy H. Everett

Arizona v. Gant: The End of the Belton Rule as We Knew It
On April 21, 2009, in Arizona v. Gant,1 a split (5-4) Supreme Court held that the broad rule of New York v. Belton,2 justifying the warrantless search of a car incident to the arrest of a recent occupant for any offense, finds no support in the reasonableness clause of the Fourth Amendment, given that a custodial arrest removes any genuine concern that the arrestee will escape and obtain a weapon from the car or destroy evidence in the car. The case marks a stark departure from what the Belton rule had come to represent — a police entitlement to search in the absence of genuine concern for their safety or the preservation of evidence. The Gant majority rejected the prevalent view that Belton held that the search incident to arrest exception to the warrant requirement authorizes police to search the passenger compartment of a car even after the arrestee is in the custody and under the control of the police. In reaching that conclusion, the Gant court ended the Belton rule as it had been understood and applied by most courts for the last 28 years.

The Gant court further held that police may not search a car for evidence under the search incident exception unless they have a reasonable basis for believing that there is evidence in the car that is relevant to the crime for which the arrest has been made. While the court did not specify whether a reasonable basis is distinguishable from probable cause or a reasonable suspicion, the new rule holding police to rational justification is a radical departure from Belton as it had been applied by most courts. Thus, an arrest for a motor vehicle offense will not justify any car search under the re-mapped Belton rule. This constitutional shift alone removes police prerogative to make a pretextual arrest motivated by a desire to conduct a car search for evidence unrelated to the crime of arrest.

The Gant holding makes such sense that it will be more difficult in the future to explain how Fourth Amendment doctrine in this area got so far off the reasonableness track in the decades since Belton:

After Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat. Because Gant could not have accessed his car to retrieve weapons or evidence at the time of the search, the Arizona Supreme Court held that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California … and applied to vehicle searches in New York v. Belton … did not justify the search in this case. We agree with that conclusion.3

The majority did not formally overrule Belton,4 but it roundly rejected the prevalent understanding of Belton, first apprehended by Justice Brennan in his dissent in Belton5 and later followed by many, if not most courts,6 that searches of the passenger compartment of an arrestee’s car are categorically reasonable under all circumstances. Yet the Arizona Supreme Court was not drawn along by the constitutional undertow that had kept most lower courts in thrall with a categorical application of the Belton rule for over a quarter century.7 And the Supreme Court’s holding in Gant was not altogether unpredictable, given outspoken criticism of Belton even by justices who had concurred in the result in Thornton v. United States, a 2004 case that rejected the claim that the Belton exception to the warrant requirement for searches of automobiles is inapplicable “when an officer does not make contact until the person arrested has left his vehicle.”8

In Thornton, Justice O’Connor expressed her “dissatisfaction with the state of the law in this area” and agreed with Justice Scalia that “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California. …”9 Also concurring in the result in Thornton, but eschewing the majority’s doctrinal map, Justice Scalia dismantled the justifications conventionally offered for car searches under the search-incident-to-arrest exception to the warrant requirement — officer safety and prevention of concealment or destruction of evidence. Justice Scalia pointed out that an arrestee securely in police custody would have to be “‘possessed of the skill of Houdini and the strength of Hercules’” to escape back to his car to threaten officer safety or obtain access to a weapon or evidence.10 He championed a return to a pre-Chimel and pre-Belton standard under which car searches would be limited to “cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”11

The court in Gant first reconnects the Belton exception to the warrant requirement with its underlying justification through the reasonableness clause of the Fourth Amendment:
Under [a] broad reading of Belton, a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle’s passenger compartment will not be within the arrestee’s reach at the time of the search. To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would thus untether the rule from the justifications underlying the Chimel exception. … Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.12
The second significant constitutional adjustment announced in Gant is its adoption of a rule, previously suggested by Justice Scalia in his Thornton concurrence,13 that police may not search a car for evidence that is unrelated to the crime for which the suspect has been arrested. At the same time, if the police do have reason to believe that the car has evidence relevant to the crime of arrest, the police may search the car for that evidence without having to use Chimel values to justify the search as necessary to ensure police safety or to prevent concealment or destruction of evidence:

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” … In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. … But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.14

The Gant decision is significant first for retethering the search incident to arrest exception to the warrant requirement to its original justifications in the reasonableness clause of the Fourth Amendment. The Gant retrenching of the Belton rule also shows the willingness of some justices on the court to question the functional yield of Fourth Amendment rules, especially categorical rules that, when broadly applied, lead lower courts to decide suppression issues without deciding whether a challenged police search or seizure is genuinely reasonable under the circumstances.15 Only those few warrantless searches and seizures considered to be de minimis intrusions are spared scrutiny under a reasonableness standard of justification.16 That is not to say that the court will revisit and do a reasonableness check on every recognized exception to the warrant requirement. However, the government’s argument touting the Fourth Amendment value of a bright line rule was roundly rejected in Gant. The court saw that the authority to conduct a Belton search had become a dysfunctional constitutional rule that more accurately could be described as a police entitlement to search.17

By holding police to the reasonableness standard in the Fourth Amendment, the Gant ruling strikes a blow against pretextual arrests that, until now, would have justified car searches for evidence unrelated to the arrest offense.18 At the same time, the court held that police post-arrest searches of cars for evidence relevant to the arrest are constitutional if there is a reasonable basis to believe the car contains evidence relevant to the arrest offense. The court has yet to consider what constitutes a reasonable basis, so we can expect that part of Gant to provide immediate fodder for dispute in the lower courts and the need for fine-tuning by the Supreme Court in a not-too-distant term.19

Notes
1. Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Justice Stevens, joined by Justices Scalia, Souter, Thomas, and Ginsburg, wrote the majority opinion. Justice Breyer dissented and also partially joined in Justice Alito’s dissent, in which Chief Justice Roberts and Justice Kennedy joined.
2. New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed 2d 768 (1981). Justice Stewart wrote the 6-3 majority opinion, in which Chief Justice Rehnquist joined, but with a grudging aside, “It is apparent that a majority of the Court is unwilling to overrule Mapp v. Ohio, 367 U.S. 643 (1961)[.]” Id. at 463.
3. Gant, 129 S. Ct. at 1714 (internal citations omitted).
4. Dissenting, Justice Alito writes: “Although the Court refuses to acknowledge that it is overruling Belton and Thornton, there can be no doubt that it does so.” Id. at 1726.
5. Justice Brennan wrote: “As the facts of this case make clear, the Court today substantially expands the permissible scope of searches incident to arrest by permitting police officers to search areas and containers the arrestee could not possibly reach at the time of arrest.” Belton, 453 U.S. at 465-66. The Gant court acknowledges that “Justice Brennan’s reading of the Court’s opinion [in Belton] has predominated.” Gant, 129 S. Ct. at 1718.
6. The Gant court recognizes that Belton “has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Gant, 129 S. Ct. at 1718. The court took the case to address criticism from diverse quarters: “The chorus that has called for us to revisit Belton includes courts, scholars, and members of this Court who have questioned that decision’s clarity and its fidelity to Fourth Amendment principles. We therefore granted the state’s petition for certiorari.” Id. at 1716.
7. As recounted by the Supreme Court in Gant: “The Arizona Supreme Court concluded that the search of Gant’s car was unreasonable within the meaning of the Fourth Amendment. The court’s opinion discussed at length our decision in Belton, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant. 216 Ariz. 1, 3-4, 162 P. 3d 640, 642-643 (2007) (citing 453 U.S., at 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768). The court distinguished Belton as a case concerning the permissible scope of a vehicle search incident to arrest and concluded that it did not answer ‘the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.’ 216 Ariz., at 4, 162 P. 3d, at 643. Relying on our earlier decision in Chimel, the court observed that the search-incident-to-arrest exception to the warrant requirement is justified by interests in officer safety and evidence preservation. 216 Ariz., at 4, 162 P. 3d, at 643. When ‘the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer,” the court concluded, a “warrantless search of the arrestee’s car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.’ Id., at 5, 162 P. 3d, at 644. Accordingly, the court held that the search of Gant’s car was unreasonable.” Gant, 129 S. Ct. at 1715-16.
8. Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004). The Thornton court rejected a claim that a police search of a car belonging to a person just arrested for possessing narcotics violated the search incident to arrest exception to the warrant requirement as applied in Chimel v. California, 395 U.S. 752 (1969), to areas within reach of an arrestee and as extended to car searches in New York v. Belton, 453 U.S. 454 (1981). Justice Thomas’s vote with the majority in Gant is perhaps a slight surprise, given that he joined, without signal of displeasure, the majority opinion written by Chief Justice Rehnquist in Thornton. Justice O’Connor and Justice Scalia also joined in that result, but unabashedly declared that Belton had drifted off its constitutional mooring.
9. Thornton, 541 U.S. at 624. (O’Connor, J., concurring) (emphasis added).
10. Id. at 626-27 (Scalia, J., concurring) (quoting Judge Goldberg’s opinion in United States v. Frick, 490 F.2d 666, 673 (5th Cir. 1973) (concurring in part and dissenting in part)).
11. Thornton, 541 U.S. at 632.
12. Gant, 129 S. Ct. at 1719 (emphasis added).
13. Thornton v. United States, 541 U.S. at 632 (Scalia, J., concurring) (“A motorist may be arrested for a wide variety of offenses; in many cases, there is no reasonable basis to believe relevant evidence might be found in the car. [citations omitted] I would therefore limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”).
14. Gant, 129 S. Ct. at 1719 (emphasis added). The court summed up the retrenched rule as follows: “Belton and Thornton permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand.” (emphasis added.) Id. at 1721 (citing other warrant exceptions, including automobile exception supported by probable cause and limited protective sweep supported by reasonable suspicion).
15. The adoption of the good faith exception to the exclusionary rule in cases where the police have relied on warrants that proved deficient is an example of the court’s receptivity to prosecutors’ arguments that gauging the reasonableness of police searches and seizures is of paramount importance under the Fourth Amendment in deciding whether there is a wrong calling for the exclusionary remedy under the federal Constitution. United States v. Leon, 468 U.S. 897 (1984). The court in Herring v. United States, 129 S. Ct. 695 (2009) recently decided that police-generated misinformation as to the very existence of a live warrant — which actually had been vacated — did not make police action in reliance on the warrant per se unreasonable under the Fourth Amendment so as to require the exclusionary sanction. Herring, of course, represents its majority’s receptivity to arguments that the exclusionary rule itself is not firmly rooted in the Constitution and ultimately may reflect the view that Mapp v. Ohio, 367 U.S. 643 (1961), was wrongly decided, but the justices who think so have limited their sights to detaching the exclusionary remedy from police violations of the Fourth Amendment only when those justices find the police conduct genuinely reasonable. In dissent, Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, has held out for a “‘more majestic conception’ of the Fourth Amendment and its adjunct, the exclusionary rule.” (emphasis added) Id. at 707. The more majestic conception appears to have found life in the reasonableness clause as applied in Gant to limit police to searches and seizures that are genuinely reasonable. Gant, 129 S. Ct. at 1721 (the various exceptions to the warrant requirement “together ensure that officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle’s recent occupant justify a search”).
16. See, e.g., Maryland v. Wilson, 519 U.S. 408, 410; 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (holding that “the rule of Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977), that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, extends to passengers as well”).
17. Gant, 129 S. Ct. at 1723 (“The fact that the law enforcement community may view the state’s version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement ‘entitlement’ to its persistence.” (emphasis added)).
18. Id. at 1720 (“It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment — the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.”).
19. Already Justice Alito has dissented from summary reversals in cases where he believes the court should instead begin to address the “host of uncertainties” created by the Gant rule permitting an evidentiary search of a car if police have reason to believe the vehicle contains evidence of the crime of arrest. Groomes v. United States, 129 S. Ct. 1981, 173 L. Ed. 2d 1288 (May 18, 2009) (Alito, J., dissenting) (quoting Gant, 129 S. Ct. at 1719); Megginson v. United States, 129 S. Ct. 1982, 173 L. Ed. 2d 1288 (May 18, 2009) (Alito, J., dissenting) (same).


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