The future of vehicle searches incident to arrest.

• Author: Sanders, William

"The-times-they-are-a-changin' ..." (1)

INTRODUCTION

Drunk and high on more than just life, Phil, a hapless ne'er-do-well on his way home from an evening of merriment, is having fun navigating his car along a twisty mountain road. However, he is not paying much attention to the double yellow line. The radio is blaring. He is singing and marveling at the moon, wondering why it sometimes looks so big. Just then, flashing police lights in his rearview mirror rudely bring him back to earth. Phil pulls over and begins to sweat. Driving while intoxicated is the least of his worries. Phil now realizes how red his eyes look in the mirror, how pungent the odor of marijuana is on his clothes, and how much of it he has in a bag under the passenger seat. And then ... "My gat!" (2) he exclaims, remembering his unlicensed Thompson automatic in the trunk. Phil collapses onto the pavement in his attempt to pass a sobriety test. The officers arrest, handcuff, and lock him in a police cruiser. He watches in tears as they search his entire car, even the trunk. Through a haze of alcohol and angst he wonders, can they do that? The answer is, Phil needs a lawyer.

The law of vehicle searches and seizures incident to arrest has changed many times in the past hundred years. The latest version came in 2009, from Arizona v. Gant, (3) which held that when police lawfully (4) arrest an occupant or recent occupant of a vehicle, an officer can search that vehicle incident to the arrest if (1) the arrestee is within reaching distance of the passenger compartment at the time of the search; or (2) it is reasonable to believe the vehicle contains evidence of the offense of arrest: Though Justice Stevens, writing for the majority, claimed to be holding true to precedent, the Gant rule is in fact substantially different from the previous Belton (6) rule, and, as noted by the Gant dissenters and many academic commentators, leaves some important questions unanswered. Given these questions, Gant will certainly not be the last version of the law.

This Note predicts how the Supreme Court will answer three of the biggest questions, which are as follows: (1) what exactly is meant by the "reasonable to believe" standard for the evidence-gathering search? (2) will the evidence-gathering search remain limited to evidence of the offense of arrest? and (3) will the evidence-gathering search remain restricted to the passenger compartment? To answer these questions, this Note looks at the origin of the law of vehicle searches incident to arrest and how it has changed due to politics and the personal views of the justices on the Court. Then the Note studies each justice currently sitting on the Court to determine how they might answer the above questions. Finally, it analyzes the current political climate to find ways it might influence future holdings. The next change in the law will also be influenced by the attorneys arguing the case. Phil's fate depends on how well his attorney knows the history of the law and the thinking of the justices on the bench.

1. THE ROOTS AND FRUITS OF THE FOURTH AMENDMENT

   The Fourth Amendment arose from the discord between England and the colonies in the period immediately before the American Revolution. (7) It was, in part, a backlash against writs of assistance issued by the Crown. These writs allowed an official to search anywhere he wanted without cause. (8) After such writs were relegated to history, how the Fourth Amendment applied to real life became less certain, as indicated by the variety of its interpretations by the Supreme Court.

   1. The Origin of the Fourth Amendment

      Before the Bill of Rights was ratified in 1791, (9) searches and seizures in the American colonies were lawful or unlawful according to the laws of the colonies, (10) These laws varied from "colony to colony and from decade to decade." 11 Besides the arrest of suspected felons in hot pursuit, (12) warrantless searches and seizures were rare and therefore not a source of spite between the people and the government. (13) However, this did not mean there was a dearth of suspicionless governmental intrusions onto private property. It was not so much warrantless actions of which colonists complained, but rather searches and seizures pursuant to writs of assistance. (14) These writs were issued at the discretion of the Crown, required no suspicion of illegal activity, and permitted officers to search anywhere. (15) Parliament allowed their use in the colonies to prevent smuggling. (16) Writs of assistance were highly unpopular and most colonial courts, except those in Massachusetts, refused to issue them. (17) Out of this ferment, the Fourth Amendment emerged. (18)

   2. Fourth Amendment Interpretation in General

      The Fourth Amendment protects citizens against unreasonable searches and seizures by the government (19) and sets the standard for when search warrants may be issued. It states:

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (20) There is little mention of the Fourth Amendment in Supreme Court opinions throughout the nineteenth century. (21) This is because the Amendment did not apply to the states until 1961, and the federal government performed few searches and seizures. (22) Also, the exclusionary rule, which prevents evidence from being admitted at trial if it was obtained through means in violation of the Fourth Amendment, did not exist until 1914. (23) This rule gives guilty criminal defendants a way to be acquitted; hence the increase in Fourth Amendment cases since the rule was established. This, in turn, engendered an increase in the Court's interpretations of the Amendment, and the interpretations have been rather inconsistent.

      This inconsistency partly results from the text of the Amendment itself. The first part of the Amendment protects against "unreasonable searches and seizures," and the second part says, "no Warrants shall issue, but upon probable cause." (24) Does the Amendment require a warrant for searches and seizures, or only reasonableness? The relationship between the two clauses has been called a "syntactical mystery" (25) and has caused controversy in the Court. (26) One view is that a warrant is necessary for every search and seizure unless it is impossible to obtain one. (27) Another view is that warrants are not constitutionally required and that the preference for warrants was "judicially created." (28) Proponents of this view argue that the purpose of the Warrant Clause is to indicate "when warrants may not issue, not when they may, or must." (29)

      The Court has swung from the warrant-requirement view to the reasonableness view and back again more than once, (30) but since the departure of Justice Potter Stewart in 1981, the Court has become increasingly amenable to the reasonableness philosophy. (31) The Court recently declared that constitutionality should be determined by looking to pre-constitutional common law and traditional standards of reasonableness. (32) When history has no answer, then reasonableness should be determined by weighing the intrusion into an individual's privacy against the degree to which the intrusion is needed to promote a legitimate governmental interest. (33) Whether the Court will continue to follow the path of reasonableness or U-turn toward the warrant requirement is explored below, as well as what this means for searches of vehicles incident to arrest.

   3. Fourth Amendment Interpretation Regarding Searches and Seizures Incident to Arrest

      Trends in the Court's interpretation of the Fourth Amendment have coincided with cultural and political changes. During Prohibition, the Court's holdings strengthened the power of the government to uphold the Eighteenth Amendment. (34) As Prohibition became less popular, the Court became less willing to permit law enforcement officials to intrude into people's privacy. The post-Prohibition era saw further changes.

      1. The Prohibition Era

         A "search incident to arrest"--the type of search that happened to Phil (35)--is a judicially created exception to the warrant requirement of the Fourth Amendment. It emerged during Prohibition as part of the Court's trend of giving law enforcement officers more freedom to find contraband. (36) The Court solidified the incident-to-arrest exception (37) in Marron v. United States. (38) In Marron, prohibition agents raided a speakeasy with a warrant to search for liquor and articles to manufacture liquor. (39) After gaining entry, the agents saw liquor and arrested the man in charge. (40) Then they searched the premises for the items on the warrant and found a ledger showing evidence of illegal liquor trade. (41) The defendant argued that since the ledger was not on the warrant and was not found on his person, the agents' seizure of it violated the Fourth Amendment. (42) While the Court affirmed the requirement that officers performing seizures according to a warrant can only take what the warrant describes, (43) it upheld the seizure of the ledger by recognizing the officers' right to search the premises, without a warrant, to find "things used to carry on the criminal enterprise." (44) Such a search could extend to "all parts of the premises used for the unlawful purpose." (45) In other words, the search that resulted in finding and seizing the ledger was not done pursuant to the warrant, but rather was pursuant, or "incident," to the arrest.

         Before Prohibition was repealed, the Court decided two more cases regarding the incident-to-arrest exception and clarified its limitations. (46 Though these decisions claimed "doctrinal continuity" with precedent, (47) the move towards greater protection of individuals and less permissiveness for...