IACP Session: Supreme Court to reconsider search incident to arrest rule
Ed Note: The following is one in a series of articles written by PoliceOne columnists in the wake of the recently completed IACP conference in San Diego. Check out the IACP Special Coverage page for complete and continuing coverage of the event. If you attended the IACP and want to share your thoughts or photos, please let us know by sending an email.
Two cases argued before the United States Supreme Court a few weeks ago hold strong potential for shaking up the rules of search and seizure now applied thousands of times each day. After discussion of last year’s criminal procedures cases, participants in the IACP Legal Officers Section workshop turned their attention to upcoming decisions of the United States Supreme Court. In the first case, Arizona v. Gant, the Court will reexamine the Belton rule permitting the search of a vehicle incident to the arrest of an occupant. In the second case, United States v. Herring, the Court will decide whether a police clerk’s mistake about an arrest warrant should support suppression of evidence found in a search incident to arrest of the man named in the warrant.
Arizona v. Gant
At issue is whether the Court will scale back the circumstances in which officers may conduct vehicle searches incident to the arrest of a car’s occupants. Several of the justices have raised questions about lower courts’ application of the 27 year-old case of New York v. Belton, 453 U.S. 454 (1981). Arizona v. Gant provides the Court with the opportunity to continue the status quo on vehicle searches incident to arrest or to restrict officers’ legal ability to search.
The bright-line rule of search incident to arrest
The Thornton case sowed the seeds for revisiting the bright-line rule of Belton. Since the Belton decision, many lower courts focused on whether a search of a vehicle was substantially contemporaneous to the underlying arrest. Justice Scalia was joined by four other justices in questioning whether lower courts were being too generous in their application of the Belton rule. In State v. Gant, the Arizona Supreme Court pounced on the issue and ruled that Belton was not so much a case about when a vehicle search is allowed as it was a case about the scope of such a search. The Arizona court ruled that an officer must show some basis for concern that evidence is located in the car, or the arrestee could retrieve a weapon from the car, to justify a search. Though some other states’ appellate courts had addressed this issue, the Arizona court was unique in that it based its decision of interpretation of the Fourth Amendment and not on a state constitutional provision. That set a perfect stage for the United States Supreme Court to tackle the question directly.
The Supreme Court arguments
At the oral argument, Justice Souter stated that applying the bright-line rule when the arrestee is secured in the back of a police car “turns the law into nonsense.” One may reasonably fear that if such a view prevails some officers will decide to accept the risk and decide not to promptly search and handcuff an arrestee in order to preserve the danger that underlies the search incident to arrest doctrine. Though a neat legal theory, this possibility portends more dead police officers. Justice Kennedy urged the state to turn to alternative justifications for a search of a vehicle incident to arrest, such as community caretaker concerns that would justify an inventory to prevent vandalism or theft of the vehicle contents, or the justification of mobility of the vehicle. However, to simple apply the automobile search doctrine is to also state that probable cause to search must be present. That effectively ends the search incident to arrest justification of the vehicle search. This was the position that Justice Stevens argued for (and lost) in the Belton case.
Chief Justice Roberts asked questions that acknowledged that Gant’s arguments are nearly identical to the arguments raised in the Belton case 27 years ago. He asked Gant’s lawyers what had changed in the past years to make Belton ripe for reversal. A few of the justices noted the time-honored principle of stare decisis, which holds that the Court should not reverse prior decisions without good cause. Justice Breyer observed that we have trained 100,000 police officers in the Belton rule and it seems to be applied daily without abuses. He also stated a concern that officers would put themselves at risk by delaying securing arrestees in order to allow a search of the vehicle. Justice Scalia quipped that 27 years is not very long. He asked, “What would have happened if police stopped Thomas Jefferson's carriage to arrest him?” Justice Scalia, known for his preference for bright-line rules that give effective guidance, also asked, “I mean, if the police arrest Mother Teresa, they are still entitled to frisk her, right, even though there’s little likelihood that she has a Gatt (gun)?”
At the end of the day, will the justices prefer clear, bright-line rules that guide police, but being the risks of inflexibility and the occasional slight hardship? Will the justices hold to precedent in the face of little, if any, real change in the arguments raised decades ago? Will officers be left with a rule that is both confusing and encourages officers to weigh personal safety against potentially collecting evidence of crimes against the public? State v. Gant, 162 P.3d 640 (Ariz. 2007), cert. granted, 128 S.Ct. 1443 (U.S. Feb. 25, 2008).
United States v. Herring
The good faith exception
In the Evans case, the Court relied heavily on the fact that the person making the error, the court clerk, had no dog in the fight of whether a prosecution resulted in a conviction. Lawyers for Herring emphasized that this was an error by police. They argued that even though it was different police agency that made the error, the arresting agency should be held to account and the evidence suppressed. Evan’s lawyers claimed that punishing the police for the error would be an incentive to avoid such errors in the future. The state countered that the deterrent value of suppression was insignificant. Moreover, the real victim of suppression is not the officer or police agency, it is the societal interest in securing evidence of crimes.
Is suppression justified by an honest clerical error?
Justice Scalia cited the reasons against suppression as a remedy listed by the Court in Hudson. In Hudson, the Court ruled that the exclusionary rule is not the proper remedy when police execute a valid search warrant but err in complying with the knock and announce rule. Police agencies have reached high levels of professionalism and are becoming ever more professional. Persons aggrieved by police mistakes or misconduct have easy access to courts to sue for civil rights violations. Moreover, citizens more frequently have access to citizen review boards and other internal complaint systems. The state also noted that officers have no motivation to make mistaken arrests. Arrests present dangerous situations and officers won’t want to unnecessarily place themselves in danger.
It seems a small step from excusing an arrest based on a court clerk’s error to allowing evidence seized in an arrest prompted by a police clerk’s error. There is no good purpose served by suppression of the evidence in Herring’s case. The officer did nothing wrong. Perhaps one ironic lesson for Herring (and others) is that they shouldn’t come to visit the police while holding illegal drugs. United States v. Herring, 492 F.3d 1212 (11th Cir. 2007), cert. granted,128 S.Ct. 1221, (U.S. Feb 19, 2008).
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