13 May 2009

Constitution: Fourth Amendment

The Objectivist
The Supreme Courts Reins in the Police
Dunkirk-Fredonia Observer
May 11, 2009

In Arizona v. Gant, 556 U.S. ____ (2009), the Supreme Court faced the issue when the police can search a car. On August 25, 1999, five police officers arrested Rodney Gant for driving on a suspended license. They handcuffed him and locked him in a patrol car. They then searched his car and found a gun and a bag of cocaine in a jacket on the backseat. He was charged with possession of a narcotic drug and possession of drug paraphernalia (if you can believe it, the bag in which the cocaine was found). My guess is that Gant legally owned the gun, otherwise he likely would have been charged with that too. When asked in court why the search was conducted, one of the officers responded “Because the law says we can do it.”

Gant moved to suppress the evidence on the basis that the warrantless search violated the Fourth Amendment. This Amendment states that people have a right against unreasonable searches and seizures of their person and property. It also asserts that a warrant allowing such searches and seizures requires probable cause and that probable cause requires an oath or affirmation that describes the place to be searched and the persons or things to be seized. The trial court nonetheless gave Gant a three-year sentence. The Arizona Supreme Court found that the search violated the Fourth Amendment and threw out the evidence.

The Supreme Court began its analysis by noting that under the Fourth Amendment, warrantless searches are unreasonable, although there are exceptions. One exception involves a search accompanying an arrest. The Court had previously held that this exception is justified because it was necessary for keep officers safe and prevent evidence destruction. It noted that when it comes to searching cars, this exception allows for a warrantless search of the person who is arrested and the area in which he might reach to get a weapon or destroy evidence. See Chimel v. California, 395 U.S. 752 (1969).

Arizona argued that an earlier Supreme Court case, New York v. Belton, 453 U.S. 454 (1981), created a wider exception. It argued that Belton allows police to search a car interior following any routine traffic offense even if the person under arrest can’t access the vehicle and even if there is no reasonable basis to believe that the interior has evidence of a crime. In effect, it asserted that traffic arrests make it unnecessary to get a warrant. As part of its argument, Arizona claimed that this bright-line rule allowed for more effective law enforcement. It also claimed that drivers have limited privacy interests. This is an odd claim given that it would allow the police to search every purse, briefcase, or travel bag in the passenger area following arrest for any traffic infraction.

The Supreme Court affirmed the Arizona Supreme Court’s decision to throw out the evidence. It held that, on this exception, a police officer who lawfully arrests a vehicle occupant or recent occupant may search the passenger compartment only if (1) the arrestee could reach the passenger area or (2) the officer has reason to believe that the vehicle contains evidence of the alleged crime for which the person was arrested. It reasoned that in other cases, a warrantless search is not justified by the concern that the arrestee might grab a weapon or destroy evidence. As a side note, the majority position was an unlikely combination of conservatives (Justices Scalia and Thomas) and three liberals (Justices Stevens, Souter, and Ginsburg).

In his concurrence, Justice Scalia pointed out that Arizona’s argument was unrelated to officer safety because the driver has already been arrested and removed from the car. He noted that an earlier case allows police to search the passenger area if no arrest is made when there is a reasonable suspicion that there are dangerous weapons that endanger the officers. See Michigan v. Long, 463 U.S. 1032 (1983).

The dissent, written by Justice Alito, and joined by Justices Roberts, Kennedy, and Breyer, argued that the case conflicts with clear language in a previous case (Belton), and would make police officers learn new rules. It also noted that it is mysterious why the Court required that the police reasonably believe that the vehicle contains evidence of the crime that brought about the arrest rather than probable cause of it. The suggestion is that the majority was uncomfortable with their reasoning, so they watered it down by using a lower standard.

To see how far the privacy-invasion has gone, note that police can arrest drivers for the most minor of reasons and even on obvious pretext. The American Civil Liberties Union (ACLU) notes that the police may arrest a driver or passenger for any offense committed in their presence, no matter how minor. This is true even if state law permits no arrest. See Atwater v. City of Lago Vista, 532 U.S. 318 (2001) and Virginia v. Moore, 218 S. Ct. 1598 (2008). Because this includes vehicle code infractions and speeding and because most drivers have or do one of these, the police can arrest pretty much anyone they want. The ACLU notes that even if there is irrefutable proof that the officer had no interest in the minor offense and wanted to use the stop as cover to search someone’s car, the arrest is still legal. See Whren v. United States, 517 U.S. 806, 813 (1996). Once stopped, police can search the handbags, briefcases, travel bags, etc. not only of the driver but also any of the passengers.

It is disturbing that such disparate groups as the state of Arizona, police special-interest groups (e.g., National Organization of Police Organizations), and four Supreme Court Justices wanted to endorse this blank check for warrantless searches. Their zeal to pat people down and invade their car and belongings has no support from Constitution’s text or structure (how the parts of it relate to each other) or the intentions of the people who framed and ratified it. It’s clear that far too many judges, legislators, and the police-officer groups view the Constitution as an annoying speed bump in their pursuit of drugs and guns.

This case should have been an easy one. The good news is that a fragile majority of the Supreme Court got it right.