The plight of the unsuspected drug user: a police officer's take on Arizona v. Gant.

AuthorOsmond, Joseph

INTRODUCTION I. FOURTH AMENDMENT SEARCH AND SEIZURE II. ARIZONA V. GANT III. A POLICE OFFICER'S ARGUMENT AGAINST GANT A. The Plight Of The Unsuspected Drug User: A Compelling Exigency 1. American Drug Abuse 2. Criminal Justice Referrals for Drug Treatment and Drug Court 3. Missed Opportunities 4. Ineffective Arguments Addressed a. Families of drug abusers cannot remedy the abusers' addiction b. Police cannot follow-up on individual drug users c. For practical reasons, the probable cause escape hatch is flawed d. Procedural impounding is not a silver bullet 5. The Vehicle Search-Incident-to-Arrest Exception Is Consistent With Other Warrant Exceptions 6. Summary B. The Demise of Belton's Bright-Line and Gant's Misguided Analysis 1. Mountains Out of Molehills 2. An Incorrect Assumption and the Potential for an Absurd Result CONCLUSION INTRODUCTION

It was in the waning moments of my patrol shift while I sat parked on the side of the freeway completing my reports. The rain was falling thick and a white Geo Metro with a broken headlight splashed onto the on-ramp of northbound I-15 in Salt Lake City, Utah. A broken headlight alone is not an alarming violation that necessarily requires police attention, but the Utah Highway Patrol encourages State Troopers to make traffic stops and be visible whenever possible, so I decided to pull the driver over. (1) In any event, I would make it a quick traffic stop--just a few minutes to speak to the driver about the broken headlight and then send her on her way. I turned on my overhead lights and pulled the Metro over.

Clarisse, (2) the driver, told me she was a single mother who cleaned office buildings in the evening. She was on her way home from work when I pulled her over. A box of cleaning supplies and a bucket of rags lay on the backseat. Nothing else was in view and I had no suspicion of any criminal activity. I only wanted to verify her driver's license and send her away.

However, to my surprise, Clarisse had a large number of unpaid traffic citations which, because of her failure to pay, had become warrants for her arrest. As a single mother trying to pay the bills, budgeting in some speeding tickets was simply not part of the equation. I was initially hesitant to arrest her. She did not fit the criminal stereotype I was accustomed to taking to jail. But the bail amounts (3) attached to the warrants were substantial, and I would have felt remiss had I not arrested her. (4) After handcuffing her and securing her in my police cruiser, I told her I needed to search her vehicle incident to her arrest. Clarisse went pale, begged me not to search, and then started to whimper. I soon discovered why.

Under the driver side floor mat was a blackened spoon, a syringe, and a dime-bag of methamphetamine. Clarisse told me she had concealed them when I pulled her over. She suspected she had warrants and was afraid I would arrest her and then search through her purse where she had kept the methamphetamine and paraphernalia. Clarisse, the hardworking, unassuming single mother from Utah was a drug addict. She was booked into jail for traffic warrants and for felony possession of methamphetamine.

I saw Clarisse again almost a year later during a court hearing. She had enrolled in Drug Court, a rehabilitation program where drug users can mitigate and sometimes completely erase criminal charges by completing drug treatment. Although I do not know the end of her story, I do know that had I not searched her vehicle incident to arrest, Clarisse would likely have continued to use methamphetamines and might have died as a result.

Clarisse's story is not an isolated incident. Thousands of drug users are arrested every year as a result of searches incident to an arrest without any suspicion of drug abuse. The drug charges resulting from these searches regularly lead to substance abuse treatment, and unsuspected drug users like Clarisse are able to receive help when they would otherwise slip through the cracks. Unfortunately, these important benefits from searches incident to arrest have recently been eliminated by the Supreme Court's ruling in Arizona v. Gant. (5)

Gant held that police officers can no longer search the vehicle of an arrestee unless the search serves to find evidence of the crime of arrest or is necessary to preserve officer safety. (6) Thus, unless the arrestee exhibits symptoms of drug abuse or is already being arrested for a drug offense, police do not have Supreme Court approval to search the arrestee's vehicle for any narcotics or paraphernalia. The Court reasoned that this new rule is more congruous with existing Fourth Amendment jurisprudence and that the previous rendering of the search-incident-to-arrest exception did not create a consistent bright-line rule for police. (7) But the Court failed to recognize that a broader analysis of Fourth Amendment precedent would continue to allow these searches, not supplant them, and that the previous thirty-year standard of search-incident-to-arrest better advances Fourth Amendment protections than the new Gant standard.

This Note provides a new perspective to the debate over warrantless vehicle searches. This perspective originates in my own experiences as a police officer and argues for a return to Fourth Amendment jurisprudence that permits a warrantless search when exigency demands it. Specifically, this Note will demonstrate that unsuspected drug abuse is a deadly exigency and thus sufficiently justifies searching every vehicle following the arrest of a driver or occupant. This Note will also argue that the previous Belton rule provided a better bright-line standard than the directive advanced in Gant.

Accordingly, Part I of this Note provides a background of Fourth Amendment jurisprudence; Part II explains in more detail the facts and holding of Gant; and Part III demonstrates the exigency of unsuspected drug abuse as a justification for warrantless vehicle searches and will examine and refute the Gant Court's arguments against the previous bright-line rule.

  1. FOURTH AMENDMENT SEARCH AND SEIZURE

    The Supreme Court has held that a warrantless search is per se unreasonable. (8) However, the text of the Fourth Amendment indicates only that a search or seizure needs to be reasonable, and that any warrant issued must be supported by probable cause. (9) The text of the Amendment notwithstanding, (10) over half a century of Supreme Court jurisprudence maintains that the Fourth Amendment requires the police to obtain a warrant when they wish to search and/or seize. (11)

    However, the Court has regularly carved out exceptions to this warrant requirement and in many instances has upheld that a warrant is neither practical nor required in a given set of circumstances. (12) These exceptions are premised on the exigency of the situation, (13) or some countervailing need that requires the police to act immediately without ex-ante authorization. Such exigency demands flexibility to the warrant requirement and recognizes the reality of real-time police work which often cannot wait for perfect-word prerequisites. As the Court has recognized, it is unreasonable for the warrant requirement to be absolute. (14)

    One exception to the warrant requirement arises from Chimel v. California, (15) in which the Court allowed a warrantless search of an arrestee's person and his surrounding area contemporaneous to a lawful arrest. (16) The Chimel Court permitted this search because it found "ample justification ... for a search of [an] arrestee's person and the area within his immediate control." (17) Specifically, the Court justified the search under two exigent circumstances: first, the Court was concerned that officer safety would be compromised without the immediate ability to search; (18) and second, the Court recognized that any evidence on the arrestee's person could be destroyed or concealed while waiting to secure a warrant. (19)

    But these two exigent circumstances are not exhaustive justifications of the warrant exception: officer well-being and evidence preservation are not the only considerations worthy of overriding the warrant requirement. Moreover, Chimel never specifically mandated that the search-incident-to-arrest exception hinge only upon safeguarding evidence or police officer safety. (20) To the contrary, Chimel, along with many other Fourth Amendment decisions, left the definition of "exigency" as wide open as Trupiano's barn door. (21) As the Chimel Court stated "[w]e cannot ... excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative." (22) Once again, exigent circumstances form the foundation of the search-incident-to-arrest exception--not officer safety and evidence preservation, which are merely examples of it.

    Another important warrant exception involves searching a vehicle following the arrest of its driver or occupant. The Court first gave shape to this exception almost three decades ago in New York v. Belton. (23) In Belton, a State Trooper stopped a vehicle for speeding on the New York Thruway. (24) During the stop, the Trooper noticed an envelope of marijuana on the front passenger floor and, having enough probable cause to make an arrest, he proceeded to conduct a search of the vehicle. (25) During that search, the Trooper located cocaine in a jacket belonging to Belton. (26)

    Belton moved to exclude the evidence, arguing that the search-incident-to-arrest exception did not apply to a vehicle. (27) The Supreme Court disagreed and held that a warrantless exception to a vehicle was reasonably justified because it is in an area "within the arrestee's immediate control" as in Chimel. (28) Specifically, there was still "a need to remove any weapons that the arrestee might seek to use in order to resist arrest or effect his escape and the need to prevent the concealment or destruction of...

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