Tuesday, May 10, 2011
Seth Stoughton has posted Arizona v. Gant: The Illusory Restriction of Vehicle Searches Incident to Arrest
(Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
In 2009, the Supreme Court overturned thirty years of precedent with a decision that purported to dramatically cut back on the ability of law enforcement officers to conduct warrantless vehicle searches incident to the arrest of a vehicle occupant. Scholars and commentators celebrated Arizona v. Gant’s constraint of police, and subsequent scholarship has focused exclusively on peripheral concerns such as alternative justifications for warrantless searches and Gant’s effect on non-vehicle searches. This Note challenges the core assumption that Gant will substantially limit vehicle searches incident to arrest, contending that Gant is far more permissive than it appears. In most cases, Gant will do nothing to limit warrantless vehicle searches incident to arrest.
Decisions that, like Gant, have far less effect than intended result largely from an informational deficit about how law enforcement officers go about making arrests and conducting searches. Existing Fourth Amendment scholarship discusses law enforcement practices in cursory or conceptual fashion at best, and academic attempts to describe police practices have thus far been frustrated by the difficulty of obtaining detailed information. This Note addresses that deficiency by providing a descriptive analysis of common law enforcement arrest and search procedures. The information on arrests and searches in this Note can both guide future scholarship and reconcile the disconnect between judicial intention and the practical effect of a decision.