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Univ. of San Diego School of Law

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Wednesday, March 14, 2012

Cooper on Post-Racialism and Searches Incident to Arrest

Cooper frank rudyFrank Rudy Cooper (Suffolk University Law School) has posted Post-Racialism and Searches Incident to Arrest (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

For 28 years the Court held that an officer’s search incident to arrest powers automatically extended to the entire passenger compartment of a vehicle. In 2009, however, the Arizona v. Gant decision held that officers do not get to search a vehicle incident to arrest unless they satisfy (1) the Chimel v. California Court’s requirement that the suspect has access to weapons or evanescent evidence therein or (2) the United States v. Rabinowitz Court’s requirement that the officer reasonably believe evidence of the crime of arrest will be found therein. While many scholars read Gant as a triumph for civil liberties, I see it as a failure to fully address racial profiling.



Racial profiling lives on in the post-Gant era because the Court failed to prohibit pretextual searches. Cops may leave suspects near a car in order to satisfy Gant’s first prong. More importantly, they will often be able to characterize the crime of arrest as suggesting there could be evidence in the car. For instance, if a distracted driver turns without signaling, what is to stop an officer from claiming she suspected the crime of Driving Under the Influence and was searching for beer cans? Nothing in the Gant decision.

The Gant Court fails to address pretext because it takes a post-racial approach to racial profiling. That is, it acts as if race never matters by trying to address a problem of racism through a broader category of analysis. In Gant, that means ignoring former Justice Sandra Day O’Connor’s warning in her Atwater v. City of Lago Vista dissent that the search incident to arrest rule is used for racial profiling. The Gant Court thus remedies only the general problem of officers searching for weapons after they have eliminated any safety concerns, but not the specific problem of racial profiling through searches incident to arrest.

Prior to Gant, scholar Donald Dripps identified an “Iron Triangle” of cases that made search incident to arrest doctrine inimical to civil liberties; I extend that metaphor and argue the problem of racial profiling stems from a “Mindless Square” of cases. Dripps points to the combination of New York v. Belton’s presumption that a car may be searched, Whren v. United States’s bar on considering officer motivations, and Atwater’s approval of arrests for de minimis crimes. I point out that these cases draw on the earlier United States v. Robinson case’s refusal to consider whether the officer actually had the state of mind that Chimel says justifies the search incident to arrest rule. Together, Robinson, Belton, Whren, and Atwater remove the officer’s mind from analysis of search incident to arrest doctrine.

In order to address post-Gant racial profiling, we must address the mindlessness of present doctrine. That means reinvigorating Chimel by excising the Rabinowitz prong from Gant. It also means explicitly asking whether it is overall reasonable to allow a search incident to arrest when considering whether it was a pretext for racial profiling.

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