New Standard for Vehicle Search Incident to Arrest

Few areas of the law have been as subject to shifting constitutional standards as that of the exception to the warrant requirement for a search “incident to arrest.” There has been a “remarkable instability in this whole area.” (Chimel v California, 395 US 752, 770 [1969][dissent]). Since this observation was made 40 years ago, there have been two more major shifts in the standard, as it pertains to the motor vehicle setting.

In 1981, the breadth of the exception underwent a dramatic expansion as a result of the Supreme Court’s decision in New York v Belton, 453 US 454. The Court there held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” and any containers therein.” (453 US 454, 460). The holding was based upon a “generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within `the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].’ Chimel, 395 U.S., at 763.” (Id.).

For 28 years, 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.” (Arizona v Gant, 566 U.S. —– , —- S.Ct. —-, 2009 WL 1045962 [U.S. Ariz.], at 9). “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.” (Gant, at 14). (All subsequent parenthetical references are to the Gant Slip opinion as it appears in Westlaw, unless otherwise indicated).

On April 21, 2009, the exception underwent a major contraction as a result of the Supreme Court’s decision in Arizona v Gant. The majority opinion was written by Justice Stevens, the only Member of the Court that was sitting in 1981 when it decided Belton.

In Belton, Justice Stevens had agreed with the result, but not the majority’s rationale. He wrote in his concurring opinion that “[a]fter the vehicle in which respondent was riding was stopped, the officer smelled marihuana and thereby acquired probable cause to believe the vehicle contained contraband.” (453 US 420, 451). “[I]nstead of relying on the automobile exception to uphold the search of respondent’s jacket pocket, the Court takes an extraordinarily dangerous detour to reach the same result by adopting a new rationale applicable to every `lawful custodial arrest’ of the occupant of an automobile.” (Id., at 449). In Stevens’ view, the majority in Beltonhad “misconstrue[d] the Fourth Amendment,” and its decision to permit searches in the absence of probable cause effected a “massive broadening of the automobile exception” (Id., at 452-453).

In Gant, Stevens wrote that a chorus of voices had called for the Court to revisit Belton, including courts, scholars, and Members of the Court who had questioned the decision’s clarity and its fidelity to Fourth Amendment principles. (at 7 ).

In a concurring opinion, Justice Scalia stated in Gant that Belton had to be recognized for what it was: “a return to the broader sort of [evidence-gathering ] search incident to arrest that we allowed before Chimel”. (at 16). It was badly reasoned and it had produced erroneous, and unconstitutional, results. (at 16). In his view, allowing the search of a vehicle after the occupant had been arrested and placed in a squad car was not necessary for the officer’s safety. (15).
“[P]olice virtually always have a less intrusive and more effective means of ensuring their safety – and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car.” (at 15).
Scalia wrote that the Court should “abandon the Belton-Thornton charade of officer safety and overrule those cases.” (at 16).

The majority in Gant articulated the following new standard: Police may search a vehicle incident to the arrest of an occupant, or recent occupant, only if the arrestee is “unsecured and within reaching distance of the passenger compartment at the time of the search” (emphasis added) (at 10) or “it is reasonable to believe the [passenger compartment] contains evidence of the offense of arrest” (emphasis added) (at [11], 15). “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.” (at 15).

The dissenting Justices, Breyer and Alito, complain that Gant effectively “overrules” Belton, without setting forth a sufficient basis for doing so. (at 17-19). They point out that, just 5 years ago, Belton was reaffirmed by the Court in Thornton v United States, 541 US 615 (2004), a case not materially distinguishable from Gant. (at 17). (Both Thornton and Gant were handcuffed and locked in a patrol car when their vehicles were searched [541 US at 618; Gant, at 7]).

The majority states that the doctrine of stare decisis “does not compel us to follow a past decision when its rationale no longer withstands `careful analysis.’”(at 13).

The majority also distinguishes Gant from both Thornton and Belton on their facts. Although cocaine was found in the pocket of a jacket inside the car in both Gant and Belton,1 the majority in Gant states that “it is hard to imagine two cases that are factually more distinct.” (at 14). The vehicle in Belton had four occupants and there was only one State Trooper present at the time of the search.2 Belton and the other occupants had been ordered out of the vehicle but, according to the Gant Court, none of them were handcuffed, and the State of New York had argued that it was reasonable for the officer to believe the arrestees could have accessed the vehicle and its contents. (at 8-9, 14). In Gant, there were five officers present, and Gant was handcuffed.3 (at 7, 11,15).5 Belton was arrested for drugs, whereas Gant was only arrested for driving with a suspended license. (at 6-7, 14).4 Thornton is likewise distinguishable on the ground that the defendant was arrested for drugs.(at 6-7, 14).

The Arizona Supreme Court held that, because Gant could not have accessed his car to retrieve weapons or evidence at the time of the search, 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 Belton, did not justify the search. (at 11).6 The State did not seriously disagree that Gant could not have accessed his vehicle at the time of the search, but it nevertheless asked the Court to uphold the search, arguing that Belton searches are reasonable regardless of the possibility of access in a given case because it “correctly balances law enforcement interests, including the interest in a bright-line rule, with an arrestee’s limited privacy interest in the vehicle.” (at 11). The dissenters agreed with this argument (17).

The majority rejected the argument, stating that it “seriously undervalues the privacy interests at stake.” (at 11). “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 power to conduct 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 private person’s effects.” (at 11).7

1. “unsecured and within reaching distance of the
passenger compartment at the time of the search”

Although it appeared that the State’s reading of Belton had been widely taught in police academies and that law enforcement officers had relied on the rule in conducting vehicle searches during the past 28 years, the majority opined that “many of these searches were not justified by the reasons underlying the Chimel exception.” (at 14).8

Justice Stevens explained that the experience of the 28 years since the Court decided Belton had shown that the generalization underpinning the broad reading of that decision was unfounded.9 “We now know that articles inside the passenger compartment are rarely `within `the area into which an arrestee might reach,’’453 U. S., at 460, and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches.” (at 17-18). “Because Officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains. Cf. 3 W. LaFave, Search and Seizure §7.1(c), p 525 (4th ed.2004).” (at 10[fn4]).10

In Justice Scalia’s concurring opinion, he expresses concern that the new standard being announced in Gantfails to provide the needed guidance to arresting officers and also leaves much room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search. (at 16).

2. “it is reasonable to believe the [passenger compartment]
contains evidence of the offense of arrest”

The second part of the two-part rule announced in Gant is that a search incident to arrest in the automobile context is justified “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (emphasis added) (at 6). “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.” [internal citations omitted](emphasis supplied) (at 11).11

The majority in Gant states that part two of the new rule is “[c]onsistent with the holding in Thornton v. United States, 541 U. S. 615 (2004), and follow[s] the suggestion in JUSTICE SCALIA’s opinion concurring in the judgment in that case, id., at 632.” (at 6).12 Justice Scalia stated in Thornton that “[i]f Belton searches are justifiable, it is not because the arrestee might grab a weapon or evidentiary item from his car, but simply because the car might contain evidence relevant to the crime from which he was arrested.” (541 US 615, 629). Since Thornton was lawfully arrested for a drug offense, it was reasonable for the arresting officer to believe that further contraband might be found in the vehicle.13 (Id., at 632).

In Justice Scalia’s concurring opinion in Gant, he states that “[t]his formulation of officers’ authority both preserves the outcomes of our prior cases and tethers the scope and rationale of the doctrine to the triggering event.” (at 16).

It is important to note that the search of the vehicle in Thornton did not uncover more drugs; but rather, it uncovered a handgun, and that discovery resulted in two firearm possession convictions. (Id., at 618-619). By voting to affirm, Justice Scalia upheld the admissibility of the handgun, even though it was not the intended object of the search.(Id., at 632). This would presumably be the result under part two of the rule formulated in Gant. The rule would prevent the police from conducting a search if they have no reasonable belief that evidence of the offense of arrest would be uncovered. But if a search is conducted, and it uncovers evidence unrelated to the offense of arrest, the unrelated evidence could be used against the defendant.

In Justice Alito’s dissenting opinion, he observes that “[t]he second part of the new rule is taken from Justice SCALIA’S separate opinion in Thornton without any independent explanation of its origin.”14 He asks why the standard is “reason to believe”15 rather than probable cause.16 (at 22). This, of course, raises the question whether the terms were intended to have the same meaning, or not. Alito also questions why the search is limited to only the evidence of the offense of arrest, and why the area is limited to the passenger compartment. (at 22). He predicts that the second part of the new rule “is virtually certain to confuse law enforcement officers and judges for some time to come.” (at 22). Hopefully, this prediction is wrong. But if Gant does require clarification, the Court should provide it soon. Officers in the field need to be certain of their authority, and citizens need to be certain of their rights.

Charles Holster is an appellate attorney with offices in Mineola. He served as chair of the Appellate Practice Committee from 2006 to 2008. E-mail: ceh3rd@optonline.net.

1. (Gant, at 7; Belton, 433 US at 456)

2. In Belton, the vehicle was stopped by a State Trooper for speeding. (at 8). “While asking for the driver’s license and registration, the officer smelled burnt marijuana and observed an envelope on the car floor marked `Supergold’—a name he associated with marijuana. Thus having probable cause to believe the occupants had committed a drug offense, the officer ordered them out of the vehicle, placed them under arrest, and patted them down. Without handcuffing the arrestees, the officer `‘split them up into four separate areas of the Thruway … so they would not be in physical touching area of each other’‘ and searched the vehicle, including the pocket of a jacket on the backseat, in which he found cocaine. 453 U. S., at 456.” (at 8).

3. In support of this assertion, the Gant Court cites the Brief of the Petitioner in Belton, not the Record. Lack of handcuffs is not mentioned in the decisions of the New York Court of Appeals or the Appellate Division.

4. The New York Court of Appeals had concluded in Belton that the vehicle and its contents were “safely within the exclusive custody and control of the police,” but the Supreme Court apparently did not consider itself to be bound by that conclusion. (at 8). Given this unsettled factual question, it is unclear what the result would be in Belton under the rule articulated in Gant.

5. Accord, People v Gokey, 60 NY2d 309, 313-314 [1983]: “By the time the search was undertaken, defendant’s hands were handcuffed behind his back and he was surrounded by five police officers and their dog. Therefore, because the police concededly did not fear for their safety, and because they could not have reasonably believed that the search of the bag was necessary to preserve any evidence that might have been located in it, the warrantless search of the bag was invalid.” (emphasis supplied).

6. The Supreme Court recognized this principle in the automobile setting nearly 40 years ago: “[T]he reasons that have been thought sufficient to justify warrantless searches carried out in connection with an. arrest [sic] no longer obtain when the accused is safely in custody at the station house.” (emphasis added) (Chambers v Maroney, 399 US 42, 47 [1970]).

7. Thus, the Supreme Court in Gant adopts an interpretation of the Fourth Amendment’s protection against unreasonable search and seizures that is as broad as the New York Court of Appeals’ interpretation of the protection afforded by article I, § 12 of the NY State Constitution. See Gokey, 309 NY2d at 312-314.

8. As Justice Brennan stated in his dissenting opinion in Belton: “When the arrest has been consummated and the arrestee safely taken into custody, the justifications underlying Chimel’s limited exception to the warrant requirement cease to apply: at that point there is no possibility that the arrestee could reach weapons or contraband. See Chimel v. California, supra, at 764.” (453 US 454 at 465-466).

9. The majority states that it is rejecting the “broad” reading that had been given to Belton (at 10-15), and that it is adopting a “narrow reading.” (at 14, fn9). The dissenters reject this characterization as disingenuous, stating that the rule in Belton could not have been more explicit, and that the petitioner’s reading of that case, which the Court adopted, was clearly erroneous. (at 18)

10. Justice Alito states that this could not be regarded as a changed circumstance, because handcuffs were in use back in 1981, and this could not have escaped the attention of the Belton Court. (at 19-21).

11. Thus, the Supreme Court adopts a narrow interpretation of the automobile exception, not unlike that which was adopted by the New York Court of Appeals in “Belton II”: “[A] motorist stopped for a traffic infraction may not be searched unless when the vehicle is stopped there are reasonable grounds for believing the driver guilty of a crime, as distinct from a traffic offense. However, a valid arrest for a crime authorizes a warrantless search — for a reasonable time and to a reasonable extent — of a vehicle and of a closed container visible in thepassenger compartment of the vehicle which the arrested person is driving or in which he is a passenger when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made (as possibly containing contraband or as having been used in the commission of the crime) or there is reason to believe that a weapon may be discovered or access to means of escape thwarted.” (emphasis supplied) [internal citations and footnotes omitted]). (People v Belton, 55 NY2d 49, 54-55 [1983]). See also, People v Langen, 60 NY2d 170, 172, 181 [1983].

12. In Thornton, the majority and the concurrence by Justice O’Connor stated that Justice Scalia’s suggestion should not be adopted because it had not been argued by the petitioner or addressed by the government or the lower court. (541 US 615, at 624[including fn4]). There is also no indication that it was argued or addressed by the parties in Gant.

13 In affirming the conviction in Belton, the Fourth Department had cited cases which stood for this identical proposition, implying that the same principle applied when the officer smelled the odor of marihuana coming from inside the car (68 AD2d 198, 200-201).

14. Justice Scalia expressly states in his concurring opinion in Gant (at 16-17) that he was the swing vote that resulted in the 5-4 majority. Perhaps his “suggestion” in Thornton was adopted by Justices Stevens, Souter, Thomas and Ginsberg in order to reach a consensus.

15. The term “reason to believe” is also used by the New York Courts. See note 11.

16. Even before Gant, the police had authority to search a vehicle for evidence of the offense of arrest where there was probable cause. (See, e.g., Chambers, 399 US at 47-48 [upholding search for fruits of bank robbery, which was basis for arrest]). And Justice Stevens explains in Gant that if there is probable cause to believe a vehicle contains evidence of criminal activity, the police have authority to search for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is also broader – extending to any area of the vehicle in which the evidence might be found. (at 2-13)(citing United States v Ross, 456 US 798, 820-821 [1982]).