Arizona v. Gant and Searches Incident to Arrest

The Supreme Court decided Arizona v. Gant yesterday. The opinion is available here, and a news article about the case is here. It’s a pretty significant Fourth Amendment case, so let’s unpack it a little bit, and please excuse the long post.

When an officer lawfully arrests a suspect, the officer may search the suspect incident to the arrest. Such a search is justified (1) to protect the officer from any weapon that might be accessible to the suspect, and (2) to prevent the suspect from destroying evidence. See Chimel v. California, 395 U.S. 752 (1969). In New York v. Belton, 453 U.S. 454 (1981), the Court held that when an officer arrests the occupant of a motor vehicle, the officer may search the entire passenger compartment of the vehicle, including any containers therein, incident to the arrest, so long as the search is reasonably contemporaneous with the arrest. In Thornton v. United States, 541 U.S. 615 (2004), the Court extended the Belton rule to allow the search of the entire passenger compartment of a vehicle upon the arrest of a person who exited the vehicle shortly before being arrested. Gant dramatically limits, or perhaps substantially overrules, Belton and Thornton.

The basic facts of Gant — with some simplification — are as follows. The police received reports of drug activity at a particular residence. They went to investigate, knocked on the door, and Mr. Gant answered. He identified himself and indicated that the owner of the premises was not there, but would be back later. The police left, ran Mr. Gant’s record, and found an outstanding warrant for driving with a suspended license. They went back to the residence that night and staked it out. They saw Mr. Gant drive up, park, and exit his vehicle. The officers then called out to him, and Mr. Gant approached the officers, meeting them about 10 feet from his car. They arrested him, handcuffed him, and put him in the back of a cruiser. Then they searched his car, finding a bag of cocaine.

Mr. Gant was charged with drug offenses, and he moved to suppress the cocaine, arguing that because he was in the officers’ custody, there was no real risk that he would access a weapon in his car or that he would destroy any evidence therein. The state courts ultimately agreed, and the Supreme Court granted certiorari in light of (1) the lower courts’ disagreement about the proper interpretation of Belton, and specifically how long after an arrest a vehicle search could take place and still be “contemporaneous” with the arrest, and (2) the “chorus” of voices, including some courts and many commentators, asking that Belton be reconsidered.

The result was a 5-4 decision for Mr. Gant. The case made strange bedfellows, with Justices Scalia and Thomas joining Justices Ginsburg and Souter in endorsing Justice Stevens’s majority opinion, and Justice Breyer aligning with the Chief Justice and Justices Alito and Kennedy in dissent. The majority emphasized the two reasons given in Chimel for allowing searches incident to arrest — officer safety and the destruction of evidence — and concluded that vehicle searches incident to arrest should be permitted only when they further those reasons. Thus, the majority held that under the rationale of Chimel, an officer may search the passenger compartment of 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.” However, the majority added that, although not required by Chimel, an officer is also allowed to search an arrestee’s vehicle when it is “reasonable to believe” that evidence of the crime of arrest may be found in the vehicle. (Of course, the vehicle may also be searched if there is probable cause to believe that evidence of any crime may be found in the vehicle, under the automobile exception to the warrant requirement.) Because Mr. Gant was neither unsecured nor within reaching distance of his vehicle at the time of the search, and because the majority believed that it was unlikely that evidence of driving with a suspended license would be found in the vehicle, the majority held that the search was invalid. The dissent, meanwhile, argued that the majority holding was unworkable and contrary to stare decisis.

I’m sure there are lots of issues that I’m missing, but here are a few preliminary thoughts about this case. First, although the majority denies that it is overruling Belton, it admits in footnote 4 that it will be very rare for an arrestee to be unsecured and within reach of his vehicle while the arresting officer is searching it. Thus, it essentially limits Belton to its unusual facts (an officer with one set of handcuffs and no backup arrested several suspects during a roadside stop), and spells the end of routine vehicle searches incident to arrest. Second, as Justice Scalia pointed out in his reluctant concurrence, it creates an incentive for officers to “game the system” by either (1) leaving arrestees unsecured in order to justify a search, or (2) delaying arrest altogether and doing a Terry frisk of the vehicle under Michigan v. Long, 463 U.S. 1032 (1983), though it is reasonable to wonder whether the bright line rule announced in Long will survive. Third, it will create a frustrating result in some pending cases — searches conducted by officers in compliance with the accepted understanding of Belton will be invalidated despite having been proper under the law in effect at the time of the search. Although the majority states in footnote 11 that qualified immunity will shield officers from civil liability for such searches, it still means that evidence will be suppressed despite the officers’ faultless behavior, likely including evidence that the officers could have obtained via search warrant had it been clear at the time that a warrant was necessary. Fourth, the preceding effect will be somewhat mitigated by the second prong of Gant, the one that holds that officers may search a vehicle incident to arrest if there is reason to believe that the vehicle contains evidence of the crime of arrest. This part of the holding is a bit of an oddity. As the dissent notes, the majority endorsed it with very little explanation, explanation that would have been welcome given that “reason to believe” isn’t a standard that is used in the Fourth Amendment context. Whatever that standard means, it must be less than probable cause or else it would add nothing to the authority that officers already have under the vehicle exception to the warrant requirement. Fifth, although the dissent doesn’t dispute the majority’s conclusion that the facts of Gant fall outside the second prong of the majority’s holding, I’m not sure I agree. If Mr. Gant’s wallet and cell phone were on the driver’s seat, and no one else’s personal property were in the car, wouldn’t that be evidence relevant to the driving charge, because it would tend to show that Mr. Gant had been driving the car? Sure, the state had a slam dunk without such evidence, but that’s not the test of relevancy. It will be interesting to see how expansively lower courts read Gant‘s second prong.

As always, I welcome your thoughts, comments, questions, and concerns. I’m sure that this post won’t be the last word on Gant, or maybe even my last post on Gant, so please help to frame the discussion.