Bark with no bite: how the inevitable discovery rule is undermining the Supreme Court's decision in Arizona v. Gant.

• Author: Grubman, Scott R.

1. INTRODUCTION

   The late scholar Karl Llewellyn wrote that "the rule follows where its reason leads; where the reason stops, there stops the rule." (1) Apart from the poetic and literary value of this quotation, Professor Llewellyn's point is quite simple and abundantly relevant in all areas of the law: when a rule is created for certain reasons, and those reasons cease to exist, the rule should no longer be applied. Courts have utilized Professor Llewellyn's axiom in various areas of the law, refusing to apply rules to situations in which the reasons justifying the rules are no longer present. (2)

   However, in at least one area of Fourth Amendment jurisprudence-the search incident to arrest exception to the warrant requirement--the Supreme Court of the United States has refused to apply Llewellyn's principle. In Chimel v. California, (3) the Supreme Court discussed the twin rationales for the search incident to arrest exception--the need to disarm the arrestee and to discover and preserve evidence. (4) Despite these stated rationales, for years the Court expanded the search incident to arrest doctrine well beyond that which was necessary to accomplish its dual purposes. Nowhere was this more apparent than in the automobile context: once an occupant or a recent occupant of a vehicle was placed under arrest, the police were permitted to conduct a full search of the vehicle's passenger compartment as well any containers therein, including consoles, glove compartments, luggage, and bags. (5) Further, the police did not lose this authority when the arrestee was handcuffed in the back of a patrol car at the time of the search and, therefore, could not possibly grab a weapon or hide evidence. (6) As Justice O'Connor wrote in a concurring opinion, "court decisions seem[ed] ... 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 v. California." (7)

   In 2009, when the search incident to arrest exception seemed to have no limits in the automobile context, the Supreme Court issued its decision in Arizona v. Gant. (8) In Gant, the Court seemed to reverse its previous course by severely limiting an officer's authority to search a vehicle when the arrestee is detained and therefore cannot access weapons or evidence. (9) The Court in Gant held that the twin rationales articulated in Chimel allow vehicle searches "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," (10) or "when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" (11) Gant was immediately hailed by legal commentators and law enforcement experts alike as a landmark case in Fourth Amendment jurisprudence. The Court's decision in Gant both provided hope to many, including civil libertarians and defense lawyers, and frightened many others, including law enforcement interest groups and prosecutors. (12)

   However, despite what many experts predicted, Gant has not opened the floodgates of evidence suppression. This is because Gant has primarily been undermined by another exception to the warrant requirement that allows otherwise illegally obtained evidence to be admitted if the government can prove by a preponderance of the evidence that the items seized inevitably would have been discovered during a subsequent and lawful inventory search of the vehicle. (13) It appears that the Court's landmark decision in Gant has had little practical effect on the availability or exclusion of evidence.

   In this Article, I will discuss the search incident to arrest exception to the warrant requirement from the origins of the doctrine to the Court's most recent decisions. Part II of the Article discusses the history of the search incident to arrest exception, both in general and within the automobile context. Part III discusses the Court's recent decision in Gant. Part IV explains why the practical effects of Gant are not as significant as some may have hoped them to be and suggests several ways in which the Court could close the loophole in its holding in Gant.

2. BACKGROUND

   1. HISTORY OF THE SEARCH INCIDENT TO ARREST EXCEPTION

      In 1914, the Supreme Court mentioned, in dicta, what would subsequently become one of the most widely utilized, and perhaps widely abused, exceptions to the Fourth Amendment's warrant requirement: the search incident to a lawful arrest exception. (14) In Weeks v. United States, (15) a case known for its establishment of the exclusionary rule, the Court stated:

      What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime. This right has been uniformly maintained in many cases. (16) Although the search incident to arrest exception to the warrant requirement was not directly at issue in Weeks, the Supreme Court nonetheless offered its express support for that common law doctrine. (17) However, because the doctrine was not at issue in that case, the Weeks Court failed to discuss its contours. For instance, the Court did not discuss whether the search incident to arrest doctrine allowed officers to search the place where an arrest occurs. (18) Instead, the language of Weeks only approved of the practice of searching the person of an arrestee in order to discover and seize fruits or evidence of crime. (19)

      The Court elaborated on the search incident to arrest doctrine eleven years after Weeks, in Carroll v. United States. (20) The defendants in Caroll were convicted of transporting intoxicating liquors in an automobile. (21) They argued that the trial court erred when it admitted two of the bottles that were found in their vehicle during a search subsequent to their arrest. (22) According to the defendants, that search and seizure violated the Fourth Amendment and, therefore, the court should have excluded the evidence. (23) In upholding the convictions, the Court cited its earlier decision in Weeks and, in fact, elaborated on that previous dicta, holding that "[w]hen a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution." (24) However, as the Supreme Court subsequently stated, the Court's assertion in Carroll "was far from a claim that the 'place' where one is arrested may be searched so long as the arrest is valid." (25)

      However, in the same year that Carroll was decided, the Supreme Court issued its decision in Agnello v. United States. (26) In Agnello, the Court once again expanded the scope of the common law search incident to arrest exception to the warrant requirement, making it applicable not only to a search of the arrestee's person, but also to a search of the place where the arrest is made. (27) Citing both Weeks and Carroll, the Agnello Court held:

      The right without a search warrant contemporaneously to search persons lawfully arrested while committing a crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. (28) This rule from Agnello was solidified two years later in Marron v. United States. (29) In Marron, federal prohibition agents obtained a warrant to search a particular location being leased by the defendant. (30) The search warrant authorized the agents to seize any intoxicating liquors and articles for their manufacture. (31) When agents arrived at the location to execute the search warrant, the defendant was not there, but they found evidence that the property was being used for the sale and consumption of intoxicating liquors. (32) After placing one individual under arrest, the agents searched for and found large quantities of liquor, some of which was in a closet. (33) While searching that closet, they noticed a ledger showing inventories of liquors, receipts, and expenses. (34) They also found a number of bills in the defendant's name for gas, electric, water, and telephone service. (35) They seized both the ledger and the bills. (36)

      Prior to trial, the defendant moved to suppress the ledger and bills, arguing that these items were seized in violation of the Fourth Amendment. (37) Specifically, the defendant argued that because the ledger and bills were not described in the warrant and because he was not arrested with them on his person, their seizure was illegal. (38) The Government responded that the seizure was justified as either incident to the execution of the search warrant or as incident to the arrest made while executing the warrant. (39) In affirming the defendant's conviction, the Court held that because the agents made a lawful arrest, "[t]hey had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise." (40) After Agnello and Matron, police could utilize the search incident to arrest exception to justify a warrantless search of both the arrestee's person and the place where the arrest was made.

      However, it did not take long for the Supreme Court to limit its holding in Marron. In Go-Bart Importing Co. v. United States, (41) after federal agents placed several individuals under arrest for dealing in intoxicating liquors, the agents conducted a search of the offenders' offices. (42) During this search, through the threat of force, the agents gained access to a locked desk...