Law Enforcement and the Law
with Ken Wallentine
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.
Supreme Court police officer Joe Baker raises the American flag in front of the Supreme Court in Washington, D.C. The IACP Legal Officers Section workshop discussed cases in which the Court will reexamine the Belton rule permitting the search of a vehicle incident to the arrest of an occupant. (AP Photo/Ken Cedeno)
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
Officers visited Gant’s home to investigate a drug tip. They spoke with Gant and learned that he had a suspended driver license and a warrant for a driver license violation. When officers returned later in the day, they saw Gant drive up. One of the officers arrested Gant a few feet from his car. The officer handcuffed Gant and placed him in the back of a patrol car. Incident to the arrest, an officer searched Gant’s car and found a weapon and a bag of cocaine. Gant asked the trial court to suppress the search. The trial court refused and Gant was convicted. The case then began a journey to the Arizona Court of Appeals, the Arizona Supreme Court, the United States Supreme Court, back to the trial court, then to both Arizona appellate courts and finally landing back at the United States Supreme Court on October 7, 2008. A decision from the Supreme Court is expected during this term.
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
In Chimel v. California, 395 U.S. 752 (1969), the Court focused on the bases for the search incident to arrest doctrine, to wit, safety of the arresting officers and the arrestee’s ability to lunge and grab evidence to destroy it. The Court held that the area of a search incident to arrest was limited to the “grab” or “lunge” area, or the area into which the arrestee could lunge for a weapon or evidence. A few years later, in United States v. Robinson, 414 U.S. 218 (1973), the Court ruled that the fact of an arrest justified a search incident to the arrest. A search was permissible even if there was no possibility that the arrestee could reach for a weapon or evidence. In New York v. Belton, the Court held that an officer making a “lawful custodial arrest of the occupant of an automobile may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” and containers found in the vehicle. The Belton rule was intended to provide a bright-line rule that did away with the need for an officer on the street and a court reviewing a search to evaluate an arrestee’s actual ability to reach into a vehicle at the moment of arrest. Then, just four years ago, in Thornton v. United States, 541 U.S. 615 (2004), the Court held that a recent occupant of a vehicle may be searched incident to an arrest made near the vehicle. The Thornton Court reaffirmed the wisdom of a bright-line rule governing searches of vehicles incident to the arrest of an occupant.
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
The Arizona Attorney General argued that the Supreme Court could not reverse the Arizona court without explicitly overruling Belton and upsetting nearly three decades of precedent and police training and practice. The state argued that the cornerstone of Fourth Amendment jurisdiction is reasonableness, a notion frequently mentioned in Supreme Court decisions, and that the Belton rule is eminently reasonable. It is a reasonable rule because it balances an arrestee’s privacy interests against state interests of preserving evidence in the vehicle and in protecting officers and because the rule applies only to lawful arrests. The state also urged the Court to recognize that police should not have to weigh decisions of officer safety against the legal issue of whether the purposes of the Chimel case are met. In short, the balance tilts in favor of officer safety, a conclusion that has worked well for many years and which is not generally abused by officers. A bright-line rule informs the officer of the limits of a search and lets an arrestee know the rules as well.
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
Herring went to the Coffee County Sheriff’s impound yard to check on one of his vehicles that had been impounded. As he was leaving, a deputy saw Herring, recognized him, and checked for an arrest warrant. When the deputy found no warrant in Coffee County, he asked a clerk to telephone the neighboring Dale County Sheriff and check for warrants. The Dale County Sheriff’s clerk stated that there was an arrest warrant for Herring. The deputy stopped Herring, arrested him, searched him, and found a handgun and some methamphetamine. However, within 10 to 15 minutes of the call to the Dale County Sheriff, the clerk called back and said that the warrant had been recalled and was not valid. Due to negligent recordkeeping by the court clerk, the warrant was “active” in the computer database. Herring asked to have the gun and drug evidence suppressed. The Court of Appeals refused, holding that the good faith exception to the Fourth Amendment exclusionary rule should apply. Though some courts have ruled that refusal to apply the good faith exception to such circumstances would deter sloppy recordkeeping, the Court of Appeals said that was not sufficient justification. The court also must consider whether the costs of suppression outweigh the societal benefits, whether there was misconduct by the police or other justice system actors, and whether refusing to apply the good faith exception would result in appreciable deterrence of misconduct. The Supreme Court agreed to review the case and decide whether the good faith exception to the exclusionary rule should apply.
The good faith exception
In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court held that evidence obtained during execution of a faulty search warrant should not be suppressed if the officer acted in good faith reliance on a facially-valid warrant. The Court ruled that evidence seized during an arrest based on an invalid arrest warrant left in place due to a court clerk’s error should not be suppressed in Arizona v. Evans, 514 U.S. 1 (1995). Now the question is whether the good faith exception should apply when it is a police employee, not a court clerk or judge, who makes an error and another officer relies on the erroneous information to make an arrest, search incident to the arrest, and seize evidence.
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?
Following the Court’s views expressed in Hudson v. Michigan, 547 U.S. 586 (2006), Chief Justice Roberts wondered whether suppression was an appropriate remedy when no one did anything wrong, but the error was merely negligent. In Hudson, the Court reminded that the exclusionary rule should be reserved for situations in which its drastic impact will be justified by its remedial objective. In this case, the arresting officer had no reason to doubt the accuracy of the information supplied by the neighboring county. What possible remedial effect would the exclusionary rule have on the officer? Justice Alito wondered at Herring’s focus on the fact that it was a police clerk, and not a court clerk, that made the error. He asked what it mattered whether an error was made by a unionized clerk or a “computer guy?”
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).