Arizona v. Gant: A Windfall For The Government?

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."

In reaching this last conclusion, the Supreme Court was expressly repudiating its prior opinions in United States v. Harris, 331 U.S. 145 (1947), and United States v. Rabinowitz, 339 U.S. 56 (1950), which had ruled the search incident to a lawful arrest for approximately two decades and allowed such broader searched incident to lawful arrests. Twelve years after Chimel, in New York v. Belton, 453 U.S. 454 (1981), 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."  

All of this changed with the Court's recent opinion in Arizona v. Gant, where it "reject[ed] this reading of New York v. 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." So, Gant was a victory for criminal defendants, right? This is is certainly what commentators, including myself, said in the wake of the Court's opinion.

But now, I'm not so sure. You see, the above language in Gant was not the Court's sole holding. Instead, relying upon Justice Scalia's concurrence in Thornton v. United States, 541 U.S. 615 (2004), which in turn relied upon Harris and Rabinowitz, the Court held:

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton, 541 U. S., at 632 (SCALIA, J., concurring in judgment).  In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence....But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein. 

So, what does "reasonable to believe" mean? Seeing as how this language from Gant came from Scalia's concurrence in Thornton, and seeing as how Scalia relied upon Rabinowitz, it seems to me that the answer should be "probable cause." Why? Well, in upholding the arresting officers' search of the arrestee's desk, safe, and file cabinets in that case incident to his lawful arrest, the Court concluded

In the instant case the search was not general or exploratory for whatever might be turned up. Specificity was the mark of the search and seizure here. There was probable cause to believe that respondent was conducting his business illegally. The search was for stamps overprinted illegally, which were though upon the most reliable information to be in the possession of and concealed by respondent in the very room where he was arrested, over which room he had immediate control and in which he had been selling such stamps unlawfully. (emphasis added). 

Of course, "reasonable to believe" is a lot closer to "reasonable suspicion" than it is to "probable cause," and, because the automobile exception already allowed automobile searches based upon probable cause, it seems likely that courts will merely require reasonable suspicion. While it is not difficult to establish reasonable suspicion, an officer would still have to be able point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. And I don't see how the officer in People v. Osborne, 2009 WL 2026328 (Cal. App. 1 Dist. 2009), established reasonable suspicion.

In Osborne, officers arrested Christopher Osborne, hadcuffed him and recovered a loaded nine-millimeter semiautomatic handgun from him, and then searched his Lexus, removing from it a pouch containing drugs. Osborne moved to suppress the drugs, but the trial court denied his motion, and the appellate court affirmed on Osborne's appeal, finding that

Although the firearm found on defendant was loaded, it was reasonable to believe that the vehicle might contain additional items related to the crime of gun possession such as more ammunition or a holster. Thus we find that the search of the passenger compartment was reasonable under the Fourth Amendment....Contrary to defendant's assertions on appeal, it matters not whether the officers had probable cause to believe the automobile contained evidence of a crime or contraband, or whether the officer believed the car to be stolen. Such factors would have permitted the search of the vehicle under the automobile exception, but are not required for a search of the car incident to defendant's arrest. The Gant court specifically requires only a "reasonable basis to believe" the vehicle contains relevant evidence, a standard less than full probable cause.

Really? According to this reading of Gant, it seems to me that whenever officers arrest someone in a car and recover a weapon from him, they have reason to believe evidence relevant to the crime of arrest might be found in the vehicle. And if that's the case, Gant is a victory for the government, not criminal defendants.

-CM