Antonin Scalia

Step Away From the Vehicle

The Supreme Court imposes long-overdue limits on car searches.

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In August 1999 police saw Rodney Gant pull into the driveway of his Tucson home and arrested him for driving with a suspended license. After handcuffing Gant and locking him in a cruiser, Officer Todd Griffith searched his car, finding a bag of cocaine in the pocket of a jacket on the backseat. When he was asked at an evidentiary hearing why he searched the car, Griffith replied, "Because the law says we can do it."

Not anymore. Last week the U.S. Supreme Court said police may no longer routinely search the vehicles of recently arrested people. It was a refreshing departure from a long line of cases in which the Court has whittled away at the Fourth Amendment's prohibition of unreasonable searches and seizures to make the war on drugs easier to wage.

Among other things, the Court has ruled that a search warrant can be granted based on information from an anonymous (and perhaps nonexistent) informant; that evidence obtained with an invalid search warrant can be used in court as long as police acted in "good faith"; that police do not need a warrant to monitor homes and backyards from low-flying helicopters; that police may use dogs to inspect luggage and cars without probable cause; and that government employees and public school students may be subjected to random drug testing.

The rule that police may search a vehicle without a warrant whenever they arrest someone who has recently been in the vehicle also came from a drug case. In a 1981 decision that, like Gant's case, involved cocaine found in a jacket, the Court declared, "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."

That broad rule had the advantage of clarity, but it went well beyond the goals the Court had cited in allowing warrantless "searches incident to arrest": preventing arrestees from grabbing weapons or hiding evidence of their crimes. Neither concern is plausible when an arrestee, like Gant, has been handcuffed and locked up before the search takes place.

Yet that is by far the most common scenario when police search the vehicles of people they've arrested. In other words, for 28 years police throughout the country have been routinely conducting searches that are completely unconnected to their constitutional rationale.

Last week, in an opinion by Justice John Paul Stevens, the Court said police may "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." It added that a search also can be justified if police are looking for evidence of the crime that led to the arrest—a rationale that did not apply to Gant and does not apply to the millions of other Americans who are arrested for traffic violations each year.

"A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense…creates a serious and recurring threat to the privacy of countless individuals," Stevens wrote for the five-justice majority, noting the danger of "giving police officers unbridled discretion to rummage at will among a person's private effects."

Notably, Stevens' opinion was joined by Clarence Thomas and Antonin Scalia, two justices who are often unfairly portrayed as hostile to civil liberties. In fact, Scalia wrote a concurrence that was less generous to the police than the majority opinion, calling routine car searches "plainly unconstitutional" and saying the Court should abandon the "charade" of pretending they're necessary to protect officers from hidden weapons, since "police virtually always have a less intrusive and more effective means of ensuring their safety"—i.e., restraining the arrestee.

This is the sort of case that should make leftish civil libertarians rethink their reflexive antipathy to Scalia and make law-and-order conservatives rethink their reflexive support of the police.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.

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31 responses to “Step Away From the Vehicle

  1. Damn Scalia (and Thomas) for their anti-civil liber….what?

  2. Okay, I made the comment above before I read the last sentence of the summary. Sigh.

    I guess I should RTFS at the very least.

  3. Speaking as a civilian, I avoid pigs like the fucking plague.

  4. Great, so what’s stopping the police from impounding a vehicle and conducting an “inventory”?

    Nothing.

    This is a minor victory at best. Police will just change their tactics and find new creative ways to do what they’ve always done.

  5. Ok. But in practice, if I’m pulled over and the cop wants to search my car, he will likely search my car. I can say “NO!” or “RAPE!” or “FASCIST!” all I want, it probably won’t help. Will a cop try to get me to consent to search? Or will he just say I gave consent regardless?

    Please don’t search my car officer, I don’t any of my things to get contaminated with swine flu.

  6. Firstly, I’d like to applaud a good decision by the SCOTUS and Scalia. I do wonder what happens when that Scalia meets this Scalia

  7. phalkor,

    If they find anything in an unapproved search, it can’t be used as evidence against you in a court of law.

  8. I don’t any of my things to get contaminated with swine flu.

    Perhaps Police Flu is a better term.

  9. If they find anything in an unapproved search, it can’t be used as evidence against you in a court of law.

    I believe there is a difference between can’t and won’t, but even with that I believe your statement to be false.

  10. I believe there is a difference between can’t and won’t, but even with that I believe your statement to be false.

    Its (broadly) true. Called the exclusionary rule or, more colorfully in the common law, “fruit of the poison tree”.

    What I find interesting about the opinion is that I believe it allows a search of your car if it could contain a weapon within reach. How does that work?

    If you get out, they can’t search it, or have to stop their search as soon as you get out? Don’t they always order you to stay in your car? Why would they do that if its so frickin’ dangerous to them, what with all the weapons scattered around in there?

  11. I believe there is a difference between can’t and won’t, but even with that I believe your statement to be false.

    It is false.
    Kindly RTFA where Jacob links to the overturning of the exclusionary rule.

  12. Repeal the Eleventh Amendment! 😛 That’ll take care of illegal and abusive searches.

  13. The problem with Scalia isn’t that he is hostile to civil liberties (even though he is at times) it’s that he is unprincipled and rules based on preferred outcomes rather than on constitutional principle or analysis.

    Thomas on the other hand doesn’t seem to have this preferred outcome approach and seems to be much more consistent and has tended to pass judgment in a much more principled manner.

  14. Don’t they always order you to stay in your car?

    Usually, they order you out of the car when the search it. Cops don’t search cars while people are in the car, that would be putting the cop at risk.

    I agree that there are potential loopholes, to the rule, but the basic premise seems to be — you can’t just search every car that you pull over. There needs to be a legitimate reason to search the car. I assume the universe of “legitimate” reasons is much wider if you are pulled over because a cop saw you smoking a joint, or he ran your plates and saw you had an outstanding warrant for a violent crime as opposed to being pulled over for a moving violation or a seatbelt violation.

    This ruling effectively prevents cops from searching your car during routine traffic stops.

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  16. Kindly RTFA where Jacob links to the overturning of the exclusionary rule.

    Pfeh. Now I remember. Leon, partially overturning the exclusionary rule where the cops have a facially valid warrant.

    Usually, they order you out of the car when the search it.

    But once you’re out of the car, then there aren’t any weapons within reach, and they have no basis to search the car any more. Until you get back in, and they order you out to search it, and then can’t, until you get back in . . . .

  17. It’s worth pointing out that in their brief to either the AZ Supreme Court or the Court of Appeals, AZ essentially suggested that if the court found the search unconstitutional, police may decide not to handcuff suspects anymore.

    I loved that logic-the police have the power to search a car for their safety and to handcuff a person for their safety.

    When told that a handcuffed suspect no longer presents the (potential) threat required to justify searching the car, the police basically threaten to stop handcuffing suspects so they could retain justification to search the suspects’ car. But yeah, it’s all about safety.

  18. “This is the sort of case that should make leftish civil libertarians rethink their reflexive antipathy to Scalia and make law-and-order conservatives rethink their reflexive support of the police.”

    A big thumb’s up to El Nino on this one, but I think we’re all lucky that the driver of the car wasn’t Nicole Richie, or Cher, or some other “foul-mouthed glitteratae from Hollywood” (See his majority opinion re the FCC and “fleeting obscenties”).*

    *If the FCC case gets a new hearing on the issue of whether the FCC acted constitutionally in banning fleeting obscenities (not at issue in the recent decision) and Scalia upholds the right of Cher to say “fuck” on national TV, I will definitely buy the guy cigar. But I will not sing show tunes with him.

  19. R C Dean,

    If they find a protractor and a straight edge then all bets are off.

  20. But once you’re out of the car, then there aren’t any weapons within reach, and they have no basis to search the car any more. Until you get back in, and they order you out to search it, and then can’t, until you get back in . . . .

    That seems to be the point of the ruling. To stop them from searching your car if they can easily secure you unless they have probably cause for a warrant.

    If they order you out of the car, and you comply they aren’t allowed search your car.

    If you are stopped for a moving violation, then they effectively can’t search the car unless they have probable cause for some other offense.

  21. dunzo.

  22. I personally don’t like anyone snooping through my things…kids, cops, neighbors.. No one. I am glad the court ruled this way. If anyone decides to get out of their own car and lock the doors, then the car should be off limits without a search warrant.

  23. this ruling is fairly meaningless for recreational drug users if officers can still call in the k9 unit.

    an unintended consequence of this ruling could be that law enforcement agencies spend some of their stimulus money on additional k9s.

    if k9s become more common, there could be a huge spike in the number of educated, middle class, white people arrested and possibly thrown in prison (as these people, in the absense of k9s, are less likely to have their cars searched during a routine traffic stop).

    as a white guy, i’m a bit scared by this scenario. on the other hand, a million “successful, stand-up” white folks with a federal record might be just the catalyst we need for drug policy reform.

  24. “””Kindly RTFA where Jacob links to the overturning of the exclusionary rule.”””

    If you do, you will discover that they are allowing an exclusion to the exclusionary rule when a valid mistake was made. A cop searching your car at a traffic stop without cause to search, or a warrant, is not an exclusion to that rule. For now anyway.

    If the cop want’s to be an asshole, he can arrest you, they can impound the car and search it then. But that’s far more time and hassle than what they are currently use to. However, they will continue to ask your permission to search. The new test will be how far the “he was nervous when he denied consent so I thought he was hiding drugs”, will go.

  25. “””If anyone decides to get out of their own car and lock the doors, then the car should be off limits without a search warrant.”””

    It would be interesting to see how that would turn out. Imagine your car had autolock doors and the cop asked you to step out and you closed the door when you did. Then the cops wants to gain access to the car and you said no.

  26. Exclusionary and fruit of the poison tree are two different concepts, but closly related.

    Exclusionary means that due to some infraction of criminal procedure the evidence may be excluded in proving guilt. It should be be noted that this applies to proving guilt, the evidence may be used in other ways such as impeaching credibility.

    The “poison fruit” idea requires two illegal searches. The first search being found illegal for some reason. The second search being the product of some information acquired on the first illegal search. Anything found in the second search is usually completely inadmissible. Evidence found in the first search is viewed a little more broadly. (i.e. plain view)

    The shift from no cause to probable and related to the arrest is a fairly large shift.

  27. It would be interesting to see how that would turn out. Imagine your car had autolock doors and the cop asked you to step out and you closed the door when you did. Then the cops wants to gain access to the car and you said no.

    You guys should check out the videos at flexyourrights.org. They show scenarios where exactly that happens. The cops says something like “why’d you lock your car?” The kid says “Habit. Are you detaining me or am I free to go?” Good stuff.

  28. Terry frisk and the contemporaneous search with no cause are probably among the most abused authorities given to police. All in the name of the drug war.

  29. You always ask, first thing, if you can go free. This establishes a custodial interrogation and leads to restrictions on the officer and rights for you.

  30. I find it interesting that the dissenting opinions seem to rely so heavily on the weight of stare decisis as an argument for not making the change. Especially when their supporting arguments seem so disengenuous. In fact, Leegan v. Kay’s Kloset, the case Breyer’s dissent relies upon in support of stare decisis, appears to me to cut the other way– in favor of a deviation from precedent. That case changed a precedent in anti-trust law, reasoning that the Sherman Act, unlike typical statutes, is intended to be like Common Law, i.e. interpreted by the courts rather than tweaked by the legislature as needed. Wouldn’t a constitutional protection also be treated that way?

    Meanwhile Alito’s argument contains such gems as pointing out that Police have been operating this way for 28 years, shouldn’t they be allowed to rely on the current rule?
    No where doesn to dessent defend the status quo rule on it’s own merits as a reasonable interpretation of the 4th amendment.

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