Reasonable Searches

By Mark David Blum, Esq.

There are many legal scholars to point to two areas of constitutional law. First, there is the constitution itself and the mandates and limitations expressly set forth therein. Then, there is the judicial constitution which is a body of law written by jurists under the guise of interpreting the constitution. By way of example, consider the First Amendment that says “Congress shall make no law abridging the freedom of speech.” By express language, Congress shall make no law should mean that government is without power to make any law limiting the free expression of speech. But, judges and jurists have carved out a body of law that creates exceptions to that specific limitation.

The same rules apply to the Fourth Amendment. That stricture has no such absolute ‘shall make no law” limitation. Instead, the drafters of the Constitution used an ambiguous word “reasonable” that comes back to bite us in the butt in every judicial decision. Consider the exact language of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” What is “reasonable” changes with each succeeding generation. Arguably under today’s standards, just about anything police do is reasonable and passes constitutional muster.

By definition, a search is reasonable if it is executed by warrant. In fact, the general rule is supposed to be that any search not conducted under the penumbra of a warrant is per se unreasonable. According to Katz v. United States, 389 U. S. 347, 357 (1967), "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions."

Over the years, however, the Courts have carved out a handful of exceptions to the warrant requirement and consider such searches to be “reasonable”. Among those exceptions to the warrant requirement and which are recognized by the Courts are “plain view”, “emergency”, “regulatory”, “search incident to arrest”, “hot pursuit”, "border searches" and what is the topic here, “automobile searches”. There is also the unwritten "drug" exception but that is another discussion.

There is reason behind the warrant exceptions. For example a police officer standing outside a home hears a woman screaming for help. There is not time to get a warrant and the emergency situation creates the exception. We want police to come in and rescue a person in need of help without waiting for a warrant. Same with hot pursuit; a police officer running on the heels of a suspect should not have to break off the chase to go and get a warrant. “Plain view” is easy to understand in that when something is visible to a police officer, there is no need for a warrant. Some searches are regulatory in that the regulations that create the situation, such as a liquor license, enables the liquor authority to enter and search a bar without a warrant.

Finally and what brings about this discussion is the issue of a search incident to arrest. Going back to Chimel v. California, 395 U.S. 752 (1969), the United States Supreme Court carved out an exception to the warrant requirement by holding that a person under arrest is subject to a search without warrant of his person and the “grabbable reach” of that person. As the Court said, “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

When a citizen is out and in public, their Fourth Amendment protections are diminished. The rationale behind that concept is that a person is holding themselves out in public and therefore they are subject to a limitation on their protections. It that kind of circuitous tautology that has been used by the Courts to enable warrantless searches of automobiles. In the seminal case, New York v. Belton, 453 U.S. 454 (1981), a New York State Trooper stopped a car, smelled pot, and recognized an envelope he believed to contain marijuana. Arresting the driver and passengers for the marijuana possession charge and removing them from the vehicle, the officer then searched the car and in a jacket where he discovered a quantity of cocaine. Of note and ignored by the Court was that the arrestee was outside his vehicle and in custody before the search occurred. Hence, the area of immediate control was lost when the persons were removed from the vehicle. The United States Supreme Court was not swayed.

The Supreme Court held that the search of the jacket was lawful as being the fruit of a lawful arrest under Chimel. The held that it, “follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” Justifying its holding, the Court determined that, “such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. Thus, while the Court in Chimel held that the police could not search all the drawers in an arrestee's house simply because the police had arrested him at home, the Court noted that drawers within an arrestee's reach could be searched because of the danger their contents might pose to the police.”

Over the years, this area of “immediate control” has been expanded to not only the passenger compartment but the vehicle’s trunk, engine compartment, glove compartment, and anywhere else inside the vehicle. Police have searched freely throughout any vehicle since Belton without remorse or limitation. It also did not matter that the arrestee no longer had access to the “grabbable area”. Such searches have been held constitutional even after the passage of a period of time and after the arrestee was removed from the area. Such has been the law for 28 years and taught to every police officer on the streets.

On April 21, 2009, this all changed. In the case Gant v. Arizona, No. 07-542, the Supreme Court called a halt to unfettered warrantless searches of automobiles. There, Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket in a jacket located inside on the backseat of the vehicle being searched. In a dialing back of Belton, the Supreme Court expressly held that, “police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

Gant radically changes the landscape for police. No longer are police free to conduct a full search of a vehicle when the suspect is removed from the vehicle unless police can articulate a reasonable suspicion that evidence of the crime prompting the arrest would be found. For example, a person stopped for a traffic offense has in plain view the fruits of a burglary and burglars tools. Police would be justified to not only make an arrest but to conduct a full search of the vehicle.

Yet, if the citizen is stopped for a traffic offense and it is discovered the driver had no license, then he is arrested. Absent a reasonable belief that there is more evidence of that crime in the car, police no longer can conduct a warrantless search. The fifteen pounds of cocaine in the trunk will go unnoticed unless they are in plain view.

If nobody else is around to drive the car home, police of course are empowered to have the car towed and will conduct an inventory search thereof and find the cocaine. Yes, to insulate themselves against civil liability, when your car is towed by police, it is inventoried for its contents so you cannot come back later and sue for the missing suitcase filled with jewelry and cash.

The decision in Gant is a marked reduction in police powers and a more protective stance taken by the Court. It is surprising in its holding since the Fourth Amendment as a rule has been gutted and reduced in scope and protection over the years. It is a most unusual decision in that it brings Justices Scalia and Thomas in concurrence with the Court’s otherwise liberal wing.

We should not yet hail the return of the true spirit and intent behind the Fourth Amendment. But Gant is a good start in reversing a longstanding trend in reducing our rights and giving police more and expanded powers of search. I applaud the Court for finding some sense of reason and remove the carte blanche powers previously given to police.

The People of the United States deserve no less.

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