Monday, October 6, 2014
Back in 2009, I published the article, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. At the same time, I noted in the blog post Arizona v. Gant: A Windfall For The Government? that a portion of Gant could be read to favor the government and cited People v. Osborne, 2009 WL 2026328 (Cal. App. 1 Dist. 2009), as support for my conclusion. Now, my new colleague, Seth Stoughton, has uncovered a case that provides an even better illustration of this point. Here is his analysis of that case:
Three years ago this month, I published a piece explaining how the Supreme Court's decision in Arizona v. Gant, which purported to dramatically restrict vehicle searches incident to arrest, would not actually do so. Gant, you'll remember, overruled New York v. Belton by holding that officers could not automatically search a vehicle just because they arrested an occupant (or recent occupant) of the vehicle. Instead, Gantpermitted a vehicle search incident to arrest only when 1) the arrestee was "unsecured" and within reaching distance of the vehicle or 2) when officers have reasonable suspicion that the vehicle contains evidence of the crime of arrest. Part of my criticism was that the second justification is far broader than it first appears. That prediction has proven true several times, most recently in United States v. Edwards, No. 13-3397, a Seventh Circuit decision released last Friday.
The facts of Edwards are entirely unremarkable. Justin Edwards got into an argument with his girlfriend that culminated in him taking her car without her permission. She immediately called the police and reported the car stolen, and police officers--who were familiar with Edwards and his girlfriend--saw the car "almost immediately." They conducted a routine traffic stop (which is unusual, since stolen vehicles are usually subject to a high intensity "felony stop") and eventually placed Edwards in handcuffs. After Edwards was secured in the back of a police vehicle, officers searched the vehicle incident to arrest. They found a bag of marijuana and, more importantly, a sawed-off shotgun. They did not find any the vehicle registration - that information was provided by a dispatcher.
Edwards was prosecuted for felon-in-possession of a firearm and possessing an unregistered short-barreled shotgun. He moved to suppress, arguing that the vehicle search violated Gant. The trial court suppressed, but the Seventh Circuit disagreed, holding that it was reasonable to believe (and in fact there was probable cause to believe) that the vehicle contained evidence of the crime for which Edwards was originally arrested: stealing the car. The court focused on the need to establish ownership of the vehicle, holding that the officers were authorized to look for the vehicle's title and registration documents.
On one level, the court's holding makes sense. It is certainly correct that the ownership of the vehicle mattered - if Edwards' girlfriend was not the owner, than arresting him for taking the vehicle without the owner's permission might be inappropriate. The problem arises in Gant's failure to address issues of cumulative evidence. Rather then searching the vehicle for the printed registration, officers could (and actually did) obtain that information from a dispatcher (who presumably had access to up-to-date motor vehicle records). The same would have been true if officers had wanted to search the car to look for Edwards' drivers license, which he told them he did not have on him. A broad reading of Gant permits a physical search of the vehicle that provides no information beyond that which a digital records search would provide.
Further, the broad reading can easily go even further. In incidents like this one, when evidence that a particular person was driving (or just occupying the vehicle) is part of the crime of arrest, officers could gather many pieces of relevant evidence - the position of the driver's seat, steering wheel, mirrors, and seat belt (if adjustable), for example. Officers could physically search the vehicle to feel if the seats were warm from having been sat upon recently, to look for latent fingerprints, or even to swab for DNA. All of this would be evidence that the particular defendant committed the crime of arrest. In Edwards' case, for example, it would establish the fact that Edwards was driving the vehicle and that no one else was involved. Courts would probably be correct to conclude that the fact that the evidence is cumulative (and may thus be excluded under Federal Rule of Evidence 403) does not matter at the stage of evidence collection.
Given the Court's intent to use Gant as a mechanism for limiting vehicle searches incident to arrest, this broad reading of Gant's evidence-gathering exception seems deeply problematic.