Thursday, April 23, 2009

Car search decision makes driving look better than ever

If you're unlucky enough to get arrested, the police can only use your handcuffed plight as an excuse to search your car and its contents if you're close enough to touch the thing, or if they reasonably believe evidence of your crime might be rattling around the coin tray or the glove compartment. That's the gist of yesterday's U.S. Supreme Court decision returning an iota of privacy protection to the vehicles in which we spend so much of our time -- a small shield against state power that largely sets automobiles apart from the competition.

The be-robed nine's decision in Arizona v. Gant (PDF) limited the scope of a 1981 ruling in New York v. Belton that "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."

In Gant, Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, and Antonin Scalia, upheld an earlier Arizona Supreme Court ruling that a warrantless search of Gant's car after he had already been arrested for driving with a suspended license was unreasonable. Handcuffed and confined to the back of a police car, Gant had no access to any weapons in his car, or to any evidence of his crime that he might destroy. As a result, say Stevens and company, police had no good reason to bypass the process of getting a warrnt. The cocaine discovered during the warrantless search, therefore, can't be used as evidence against him.

Writing for the majority, Stevens notes that the court accepted the case to clarify the law about vehicle searches. He quotes Justice O'Connor's observation in Thornton that “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.”

Basically, in most jurisdictions, vehicles have been treated in recent years as rolling exceptions to the Fourth Amendment.

The Arizona Supreme Court decision was a rare break from the prevailing expansive application of the search rule established in Belton, and gave the U.S. Supreme Court a chance to revive search and seizure protections on the roads.

Stevens and company take the opportunity to endorse the Arizona interpretation, with Stevens writing:

[W]e reject this reading of Belton and hold that the Chimel rationale authorizes police to 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.

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” ... In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.

It's noteworthy that the justices themselves acknowledge that this decision is a rare one in which search and seizure protections are expanded rather than contracted for occupants of automobiles. They took the case for that very reason.

As a result, if you're unlucky enough to be arrested for a traffic violation, it's not carte blanche for the cops to go pawing through your backpack or purse for stray joints or an unlicensed pistol.

Contrast this decision with the growing scope accorded to police to conduct suspicionless searches of passengers and their belongings on airplanes, buses, trains and in urban mass transit systems like the New York City subway. All airline passengers are, of course, subject to sometimes humilating inspections of their persons and property, as well as limitations on what they can carry. Passengers on Amtrak and on subway systems in some cities must also submit to random searches or else abandon hopes of travel. Technically, passengers on private bus lines can refuse police requests to search luggage (common in some areas), but few people know that and fewer still are willing to stare down a cop while standing on the Constitution.

With photo ID requirements now the rule for Amtrak, It's increasingly difficult to even travel anonymously, without leaving an electronic trail indicating your whereabouts.

Automobiles then, imperfectly shielded though they are from intrusive officials, provide the best degree of privacy and protection from unreasonable search and seizure available to travelers. Yesterday's decision reinforces that special status for cars and trucks as relatively dignified means of transportation for people who don't care to expose their lives on demand to the authorities.

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Anonymous MacK said...

Sometimes it is nice to come to this site, and say "YES! Some good news!.

Quite Often I'm saying "Dose Mudder Faukers!

April 23, 2009 2:31 PM  
Blogger Johnny said...

The word needs to go out and people should refuse to allow searches on public transport.

In the UK they can simply quote some kind of "anti-terror legislation" and arrest you if you try that:

April 23, 2009 11:48 PM  
Blogger J.D. Tuccille said...

We still have a tad more leeway. We can refuse searches and just get tossed off the train or bus. That's annoying, but better than being hauled off in handcuffs.

April 24, 2009 9:21 AM  
Blogger Barry said...

I have been reading some of your new-to-me blogs and I must say I feel I am on the same philosophical plane when it comes to searches.

Not too many years ago, the Supreme Court ruled that using infrared detection devices from the air to detect "anomalous" heat signatures to detect suspected pot-growing operations artificially extended the senses of the users of the devices and violated the "box".

My question is why is it that drug-sniffing dogs (biological though they may be) are not the same when it comes to warrantless of automobiles?

Effectively, isn't the dog a device that allows the officer to see inside the "box" beyond the natural extent of his God-endowed sense of smell in the same way as an infrared camera extends an officer's senses beyond visible light?

The Supreme Court disallowed the use of a mechanical device that extends the senses from which the results were probable cause to obtain a warrant to search the suspicious building because, in effect, the search had already been illegally conducted: fruit of the poisonous tree and such.

Why wouldn't a roadside search by an officer with a dog be the same? To wit, an illegal search of the inside of the vehicle the results of which are later used for an often warrantless search of the vehicle by law enforcement.

I am obviously no Constitutional scholar so maybe there is some fine point that transcends the obvious thus leading me to erroneously conflate the the two situations.

April 28, 2009 9:09 PM  
Anonymous MacK said...

Barry I'm no law scholar, but in my view it is, because the dog does not really overly invade your privacy.

What I mean is a dog can smell you inside a Portajohn whether he wants to or not. He can smell you through all the crap odors even. He does not concern himself with your looks, nakedness, hygiene, or physical anomalies he just naturally smells you.

Now if some crone in a clown suit using a thermal imaging device looks at you in the Portajohn he can see your nakedness, he can observe your hygiene, hell he can even see the turd fall from your ass. I think that the clown suited thug has definitely invaded a very private moment of your life.

May 1, 2009 5:21 AM  
Anonymous Barry Williams said...

Well, I found this . . .

"I see the point but I still say the dog provides special knowledge that the officer would otherwise not possess and he uses it to get a warrant."

Well . . . that was what I was going to say but then I realize that he could have knowledge from a confidential informant that the vehicle would be on that road and containing drugs and likely get a warrant if he can prove the CI to be a reliable source of "special knowledge" as I was going to put it.

Oh well. I guess the only thing to do is get the law changed and stop this silly effort to regulate human behavior for the good of the regulated.

May 1, 2009 10:11 PM  

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