Monday, June 29, 2009
Ex Post Handcuffs: Eighth Circuit Opinion Shows Immediate Impact Of Arizona v. Gant
In 1969, the Supreme Court established the boundaries of proper search incident to a lawful arrest in California v. Chimel, 395 U.S. 752 (1969). According to the Court,
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape....And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.
Okay, so according to Chimel as part of a search incident to a lawful arrest, an officer can search the suspect and the area into which he might reach. But then came the Court's 1981 opinion in New York v. Belton, 453 U.S. 454 (1981).
In Belton, an officer arrested four men in a car on the New York Thruway, split the men onto four separate areas on the Thruway, and then searched the passenger compartment of the car, uncovering drugs. Was the passenger compartment of the car within the reach of the arrestee's? As a practical matter, the answer was clearly, "no," but the Supreme Court's answer was "yes." According to the Court, lower courts had been across the board in determining whether the passenger compartment of an arrestee's car is within his reach, leading to problems both for suspects, and police, who necessarily have to make split second judgments. In response, the Court decided to craft a per se rule, "hold[ing] 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."
But it actually wasn't the majority's opinion that (really) became the law of the land. Instead, courts glommed on to Justice Brennan's dissenting opinion, which actually disparaged the majority's opinion. 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." Indeed, according to Brennan, the majority's opinion was actually stranger than fiction' he argued that
Under the approach taken today, the result would presumably be the same even if [the officer] 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.
Courts agreed with Brennan resulting in opinions finding searches incident to lawful arrests constitutional despite it being clear that, as a practical matter, the areas being searched were beyond the reach of the arrestees. Then came this April's opinion in Arizona v. Gant, 129 S.Ct. 1710 (2009). In Gant, the Court recognized that Justice Brennan's reading of the majority opinion in Belton had predominated, and it explicitly rejected it. Specifically, 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."
Unlike Belton, Gant doesn't seem to give lower courts much wiggle room in terms of defining the proper scope of an automobile search incident to a lawful arrest (Conversely, as I noted in an earlier post, I think that Gant could have a large impact in how lower courts define the proper scope of a search incident to a lawful home arrest; I have an upcoming article that will address this issue in more detail). Sure, lower courts might quibble about when exactly an arrestee is secured (e.g., does he have to be handcuffed) and when he is within reaching distance of the passenger compartment of the car (what is the maximum distance), but the scope seems pretty clear: If an arrestee is at least several feet from his car and being restrained by an officer or handcuffs, an officer likely cannot search his car.
Indeed, unless officers change their behavior based upon Gant (which is a distinct possibility), I expect most officers will follow the exact behavior outlined by Brennan, meaning that they won't be able to conduct automobile searched incident to lawful arrests, and if they do, they will be deemed unconstitutional.
Indeed, we are already seeing pre-Gant searches being deemed unconstitutional based upon reliance upon Belton. The first one that I have seen at the federal appellate level is the Eighth Circuit's opinion in United States v. Hraskey, 2009 WL 1606642 (8th Cir. 2009). In Hraskey, on July 2, 2004, an officer properly stopped the vehicle of Zachary Hrasky, arrested Hrasky, and handcuffed him and put him in his squad car. The officer then searched the passenger compartment of Hrasky's vehicle and uncovered two handguns, leading to Hrasky being charged with unlawful possession of a firearm as a previously convicted felon. And Hraskey pleaded guilty to that crime before filing a petition for hearing, and while that petition was pending the Supreme Court decided Gant. And Gant, by the government's own admission, meant that the handguns needed to be suppressed.