Coming Out of the Closet: How Arizona v. Gant Could Lead to the Shrinking of the Scope of Searches Incident to Lawful Home Arrests

In Chimel v. California, 395 U.S. 752 (1969) the Supreme Court held that a search incident to a lawful home arrest may only include "the area 'within [an arrestee's] immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." According to the Court, there were two justifications for allowing such searches: (1) "When an arrest is made, it is reasonable for the arresting officer to search the person arrested [and the area within his immediate control] in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape;" and (2) "it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person [or within his immediate control] in order to prevent its  concealment or destruction." The Court, however, was quick to note that "[t]here is no comparable justification...for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself."  

Twelve years later, in New York v. Belton, a majority of the Court found that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." It was, however, Justice Brennan's construction of the majority opinion in his dissent that his since predominated. According to Brennan, the majority "adopt[ed] a fiction - that the interior of a car is always within the immediate control of an arrestee who has recently been in the car." While in Belton, a single officer searched a vehicle when there were four unsecured arrestees, Justice Brennan found that the majority's conclusion "would presumably be the same even if Officer Nicot had handcuffed Belton and his companions in the patrol car before placing them under arrest, and even if his search had extended to locked luggage or other inaccessible containers located in the back seat of the car."   

Two years after Belton, relying upon Terry v. Ohio, 392 U.S. 1 (1968), the Court found in Michigan v. Long, 463 U.S. 1032 (1983), that an officer may also "search a vehicle's passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is 'dangerous' and might access the vehicle to 'gain immediate control of weapons."   

Seven years after Long, the Supreme Court extended the scope of the search incident to a lawful home arrest in Maryland v. Buie, 494 U.S. 325 (1990), holding "that as an incident to [an] arrest...officers c[an], as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which and attack could be immediately launched." Then, relying upon Terry, the Court found that officers can also conduct a protective sweep of the rest of the home, but only when there are "articulable facts which, taken together from rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."   

All of this takes us to the Court's opinion in Wednesday in Arizona v. Gant. In Gant, officers arrested Gant for driving with a suspended license and searched his automobile incident to that arrest only after handcuffing and locking Gant in the back seat of a patrol car, i.e., the situation identified by Brennan in his dissent in Belton. But Brennan's presumption was wrong. The Court noted the two Chimel justifications and found that Brennan's reading of the Belton majority opinion fulfilled neither because Gant obviously could not access the passenger compartment of his vehicle. Accordingly, the Court "reject[ed] this reading of Belton and h[e]ld that the Chimel rationale authorizes police to search a vehicle 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." Later, the Court rephrased this holding in a slightly different manner, concluding that "[p]olice 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." (thus incorporating the automobile exception into its holding) 

Before this rephrasing, the Court also disposed of the State's suggestion that a broad reading of Belton was "[]necessary to protect law enforcement safety and evidentiary interests." According to the Court, this is the case because "[o]ther established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand." Specifically, the Court noted that officers in cases such as Gant can still search the vehicle if Long and/or the automobile exception applies. Interestingly, the Court then noted:

Finally, there may be still other circumstances in which safety or evidentiary interests would justify a search. Cf. Maryland v. Buie, 494 U.S. 325, 334...(1990) (holding that, incident to arrest, an officer may conduct a limited protective sweep of those areas of a house in which he reasonably suspects a dangerous person may be hiding).  

Now, of course, this "established exception" would not apply to the arrest of the driver of a vehicle, which is why the Court used a cf. cite. But, it seems to me that, through this citation, the Court inadvertently showed the invalidity of the "adjoining area" holding in Buie.

Like Brennan's construction of the majority opinion in Belton, the holding in Buie "that as an incident to [an] arrest...officers c[an], as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which and attack could be immediately launched" is a fiction. When police arrest and handcuff a suspect in a room such as bedroom, that suspect cannot access certain adjoining areas that could be fifteen (or more) feet away. See, e.g., State v. Roberts, 957 S.W.2d 449 (Mo.App. W.D. 1997) (upholding an "adjoining area" search of a closet and kitchen and living room areas that were respectively seven to ten feet and fifteen feet away from the handcuffed arrestee).

Of course, the twin Chimel justifications of preventing the arrestee from accessing weapons and/or evidence were never the basis for the "adjoining area" holding in Buie. Instead, this holding was based upon the possibility of other people launching an attack on officers from adjoining areas. But if this possibility was not sufficient to uphold the Belton fiction, why should it be sufficient to uphold the Buie fiction?

Just as officers in cases such as Gant can still search the passenger compartment if Long applies, officers completing a home arrest can conduct a protective sweep of the rest of the home if there are "articulable facts which, taken together from rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Just as officers in cases such as Gant can still search the arrestee's vehicle if the automobile exception applies, officers completing a home arrest can search the rest of the home if they procured a search warrant in addition to an arrest warrant (or if the plain view doctrine applies, etc.).

This analysis indicates the Court should eliminate the Buie fiction for the same reasons it eliminated the Belton fiction, especially because individuals enjoy a greater expectation of privacy in their homes than they enjoy in their vehicles. Seemingly the only basis for a distinction between the two fictions is the Court's statement in Buie that

unlike an encounter on the street or along a highway, an in-home arrest puts the officer at a disadvantage of being on his adversary's 'turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.  

Of course, that language was used in support of the "protective sweep" portion of Buie, not the "adjoining area" portion, and this makes sense. An officer likely won't know the configuration of a home, justifying protective sweeps of other rooms based upon reasonable suspicion. But this knowledge gap does not support suspicionless searches of areas adjoining the arrest room, whose configuration is readily observable by the officers.