March 6, 2008
More on Arizona v. Gant and the Other Footnote Four
Last week, the Supreme Court granted cert. in Arizona v. Gant. The case will require the Court to consider whether the police need any level of suspicion to think the passenger compartment of a car contains a dangerous weapon or concealible or destructible evidence before searching the passenger compartment of the car after having arrested and secured its recent occupant. That is, the case gives the Court the opportunity to reaffirm, extend, reconfigure, or disavow the Belton rule. Belton seems to allow such a search even after the arrestee has been subdued, and the majority of lower courts have interpreted it in that way. This application is in some tension with the underlying rationale of the rule, that a recent occupant can gain access to the passenger compartment to conceal or destroy evidence of the crime of arrest, or obtain a weapon to harm the officer. On the other hand, it makes some sense given that the Belton Court sought to draw a bright line, allowing the police "safe harbor" (to use Susan Klein's term) within which to exercise authority in ambiguous situations free of claims of constitutional wrongdoing.
Prospects for the continuing validity of Belton appear shaky. The last time the Court addressed a Belton issue was in the 2004 case of Thornton v. U.S. There, the Court extended the Belton rule to cover an arrestee who first makes contact with the police after he has exited the vehicle. However, in a critical opinion concurring only in the judgment, Justice Scalia, joined by Justice Ginsburg, wrote that when an arrestee is safely in custody, a Belton search is justified only where it is reasonable to believe that evidence of the crime of arrest will be found. Footnote four of the main opinion declined to take a position on the merits of Justice Scalia's novel argument because it had not been raised by the petitioner at any stage of the proceedings, providing insufficient reason to reconsider Belton "at this time." In a strong symbolic gesture, Justice O'Connor refused even to join footnote four, rendering that footnote a plurality opinion, written by the Chief Justice and joined by Justices Kennedy, Thomas, and Breyer. Justice O'Connor opined that Belton is built on a "shaky foundation" and that "the approach Justice Scalia proposes appears to be built on firmer ground." Justice Stevens, in an opinion also joined by Justice Souter, dissented because he did not think Belton should apply when, as in Thornton, the police first make contact with the arrestee when he is outside the vehicle.
Gant may the case the Court uses to dispose of Belton once and for all and replace it with something along the lines of what Justice Scalia has proposed. Given Justice Stevens' and Souter's apparent distaste for Belton, and absent the Thornton question of whether Belton applies to a "recent occupant," one or both may want to embrace this reformulated approach. While the new Chief's and Justice Alito's positions are unknown, there is no reason to think they are wedded to the deeply flawed Belton, except for their respect for stare decisis. This might resonate to a greater extent with the Chief than with Justice Alito, but notice how Justice Scalia's position allows the Justices to claim that they are simply re-tooling Belton, not getting rid of it entirely. Assuming he is in the majority, the Chief might be able to craft a carefully-worded opinion, or give the job to someone else, without using the dreaded word "overruled." And even one or more of the three remaining members of the Thornton plurality might be persuaded to join, given footnote four's half-hearted embrace of Belton, coupled with the O'Connor nostalgia that seems to be an undercurrent in some recent opinions (Danforth v. Minnesota, for one).
More generally, I would suggest that the Belton experience highlights the defects of so-called "bright-line" rules. In many instances when the Court creates a cright-line rule, it simply generates litigation on when that rule applies. That is, a bright-line rule doesn't necessarily obviate the need for case-by-case adjudication; it often just moves it to another step in the process. Think of Justice White's prescient prediction in his Miranda dissent that the Court would soon become mired in defining "custody," "interrogation," "waiver," etc. Each of these questions can be answered only by applying a very fact-intensive test on a case-by-case basis. On the other hand, a bright-line rule like that suggested by Justice White in his Payton dissent -- no warrant is ever needed to arrest -- does not present these problems but may lack fidelity to the Constitution. That is not to say that Payton was correctly decided, but only to suggest that desire for a bright-line rule can never be the sole basis for a decision. [Mike Mannheimer]
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