It was not all bad news for the Fourth Amendment at the Supreme Court yesterday. In addition to signaling that they may approve the strip search of an eighth-grader by public school officials looking for ibuprofen, the justices ruled that police may search the vehicle of an arrested motorist only if they reasonably believe it contains evidence of the offense for which he was arrested or that he may be able to retrieve a weapon from it. The case involved Rodney Gant, who was arrested in Arizona for driving with a suspended license. After he was handcuffed and placed in the patrol car, police searched his vehicle and found cocaine in the pocket of a jacket. The Arizona Supreme Court threw out the resulting drug charge, concluding that rummaging through Gant's car did not qualify as a "search incident to arrest," for which the U.S. Supreme Court has said a warrant is not required, because it did not serve to protect officer safety or preserve evidence. In a decision by Justice John Paul Stevens that was joined by Justices Antonin Scalia, Clarence Thomas, David Souter, and Ruth Bader Ginsburg, the U.S. Supreme Court agreed.
The line-up is interesting, especially given the (largely undeserved) reputations Scalia and Thomas have acquired for supporting the erosion of civil liberties. When it comes to students' Fourth Amendment rights, Thomas would say they have none that public school officials need respect, and Scalia is only slightly less dismissive. It will be surprising if they do not approve the Advil strip search. But when it comes to adults, Scalia and Thomas are much less inclined to side with the government in Fourth Amendment cases. In this case, Scalia wrote a concurrence that is even less generous to police than the majority opinion:
It is abundantly clear that [traditional standards of reasonableness] do not justify what I take to be the rule set forth in New York v. Belton and Thornton [v. United States]: that arresting officers may always search an arrestee's vehicle in order to protect themselves from hidden weapons. When an arrest is made in connection with a roadside stop, police 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….
Justice Stevens acknowledges that an officer-safety rationale cannot justify all vehicle searches incident to arrest, but asserts that that is not the rule Belton and Thornton adopted….[Stevens says] that officers making a roadside stop may search the vehicle so long as the "arrestee is within reaching distance of the passenger compartment at the time of the search." I believe that this standard fails 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. In my view we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto "reasonable" only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred.
Meanwhile, Justice Anthony Kennedy, described as a quasi-libertarian in a recent book on his jurisprudence, joined the dissenters who would have upheld the search of Gant's car.
[Thanks to Mark Lambert for the tip.]
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