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Friday, April 24, 2009

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. 

Posted by Evidence ProfBlogger on April 24, 2009 at 07:44 AM in Criminal Law | Permalink

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Benjamin, I just did a search of Belton /s handcuff! in the NY-CS-ALL database, and that was the first appellate opinion that came up. As you note, it's not the best opinion, and I can't even tell from it whether anyone was arrested before the search. As you say, it's possible that the automobile exception applied, but the court justified the search as a SILA (without any analysis). Maybe some more research will reveal that this opinion is an anomaly in New York.

Posted by: Colin Miller | Apr 28, 2009 5:51:49 PM

Colin,

Thank you very much for that test case. I hadn't been able to find any situation where New York would allow a vehicle search when a suspect is already secured in a police car, where the Gant rule would not allow such a search.

Let me get this straight though. In that case, the State argued that they should be allowed to search the car because of the lawful arrest. But what justified the arrest? It wasn't the traffic stop alone. It was the report that an identical vechile had been seen in a drive by shooting. So it was "probable cause" that these guys were the ones in the drive by shooting that justified the arrest. And probable cause that these guys had just committed a shooting would certainly constitute probable cause that evidence of the crime (the gun used in the shooting) would still be in the car just a few minutes later, wouldn't it? Thus, in that case, there was probable cause that evidence of the crime would be found in the car and the search would have been justified under the automobile exception there, not the SILA.

Now it's true that the court there and the prosecution used SILA as the reason. Is it possible that they misspoke? That the real justification for the car search was the probable cause that the gun would be there (the same probable cause that justified the arrest)? Perhaps the court and "the people" just used the wrong words when arguing their probable cause justification for searching the car?...

Posted by: Benjamin Wolf | Apr 28, 2009 4:28:53 PM

Thanks, Benjamin. There are two new parts to Gant: (1) getting rid of the Belton fiction when the arrestee is secured, and (2)the "reasonable to believe" search taken from Scalia's concurrence in Thornton. For the reasons noted in your post, I don't think that the second part will change New York law although it will be interesting to see have lower courts interpret "reasonable to believe."

I do, however, think that the first new part will change New York law, at least as applied by some of its courts. For example, here is the relevant portion of People v. Dolson, 625 N.Y.S.2d 110 (4th Dept. 1995):

Defendant had been stopped for traffic violations when the arresting officer learned that a vehicle identical to defendant's had just been involved in a drive-by shooting about two blocks away. Defendant and the three passengers were removed from the vehicle, handcuffed, and placed in police vehicles. The police seized a gun found beneath the passenger seat. Defendant contends that the search was improper because it was not reasonably related to the need to protect officer safety.... The People contend that the search was proper pursuant to a lawful arrest for the drive-by shooting....The record supports the People's contention.

Under Gant, it seems that such searches will no longer be allowed.

Posted by: Colin Miller | Apr 27, 2009 3:17:39 PM

I put up a post today that explores some of the implications of the Gant decision. I was particularly interested because New York's interpretation of its State Constitution has been stricter on the police than SCOTUS' Belton decision. I wanted to know whether the Gant decision made the Supreme Courts SILA rules stricter than, more lenient than, or the same as New York's existing law. I concluded that even after the Gant decision, their rules are still more lenient than New York's and therefore New York SILA jurisprudence will probably not be affected by Gant. The link to the post follows:

http://schlissellaw.wordpress.com/2009/04/27/after-gant-is-new-yorks-car-search-rule-stricter-more-lenient-or-juuuust-right/

Posted by: Benjamin Wolf | Apr 27, 2009 1:31:12 PM

Thanks, Orin. I agree that the circumstances are different with a home arrest than they are with a vehicle arrest, but I am not sure that they are meaningfully different. As you note, with a home arrest, individuals could be hiding in adjoining areas and ready to launch an immediate attack on the arresting officer(s). Conversely, officers in this situation don't really face a problem with individuals whom they can see because, following the lead of Michigan v. Summers, 452 U.S. 692 (1981), several courts have held that officers executing an arrest warrant in a home can detain observable occupants while completing the arrest. See United States v. Werra, 2008 WL 4280035 at *7 (D. Mass. 2008).

But officers completing a vehicle arrest (often) cannot do the same. Under Maryland v. Wilson, 519 U.S. 408, 413-14 (1997), the Supreme Court held that officers can order passengers outside of a lawfully stopped vehicle, but barring reasonable suspicion or probable cause, those officers (often) cannot subject those passengers to further detention. (And, according to the Court itself in Wilson, "the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver."). When officers arrest the driver of a vehicle in a parking lot, there can be several people in the vicinity of the arrestee's vehicle whom the officers cannot detain. And in Gant itself, Gant was arrested after parking his vehicle in the driveway of his house, which raises the possibility that someone from that house not subject to detention could have accessed the vehicle.

It seems to me that the Supreme Court in Gant recognized and disposed of these concerns by holding that they are covered by the "[o]ther established exception[]" in Michigan v. Long, which it construed as holding that an officer may "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." In other words, Gant seems to be saying that if the threat to officer safety comes from someone other than the arrestee, that threat is addressed under Terry v. Ohio and its progeny, not a fictional application of the search incident to a valid arrest.

Applying the same analysis to home arrests, officers can rely upon the protective sweep portion of Buie (which is derived from Terry) when they have reasonable suspicion, but they should not be able to rely upon the adjacent area portion of Buie (which is part of the search incident to a lawful arrest) when they lack it.

I do agree with you, though, that the current Justices aren't likely to reverse Buie. I could, however, see the Court striking down court decisions construing the phrase “immediately adjoining the place of arrest from which an attack could be immediately launched” "as including rooms directly adjacent to the place of arrest." State v. Roberts, 957 S.W.2d 449, 453 (Mo.App. W.D. 1997).

Posted by: Colin Miller | Apr 24, 2009 5:59:41 PM

I disagree. When an officer arrests someone in a home, they have no idea who else is in the home: Someone could be hiding there. That isn't a realistic possibility in car, however. There aren't spaces that a person could hide in a car and pop out to attack an officer. As a result, I think the car case is quite different. Put another way, the problem with the officer safety rationale in a case like Gant is that it was not really present once the person was removed from the scene or secured; that's not the case in a home arrest.

True, you could say that officer should just have to wait unless they have reasonable suspicion to believe they are in danger. But I don't see anything in Gant to suggest that the officer safety concerns in Buie are somehow less pressing today than they were in 1990 when Buie was decided. I would also note that two of the five votes in the Gant majority were in the Buie majority (Stevens and Scalia) it is unlikely they would change their votes, and it is unlikely that any of the dissenters in Gant would vote to overturn this aspect of Buie).


Posted by: Orin Kerr | Apr 24, 2009 11:09:29 AM

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