All the listservs are abuzz (Austin, Texas and national criminal defense lawyer association listservs, that is). The Supreme Court has just handed down Arizona v. Gant, which from the non-binding syllabus portion reads:

Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

One important, and unfortunately distinguishing fact from most vehicle searches in this case was that the defendant managed to park his car in his driveway before being arrested by the police. Therefore the typical scenario where the "traffic stop leads to an arrest, the arrest leads to the impound, and the impound justifies the inventory search" analysis did not apply. 

This case simply addresses the search incident to arrest issue, and whether or not the police may automatically search a vehicle if they see an offense committed in it. And for no other reason. From the opinion:

Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle.

When asked at the suppression hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it.”

Criminal defense lawyers nationwide can actually hear that smug tone of voice: because I can / smirk. Indeed the opinion quoted Justice O’Connor’s prior observation that “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception”.

No surprise there. When courts repeatedly allow and excuse all sorts of police behavior, they are likely to feel entitled to repeat it. That’s just human nature. I wonder though, since the majority actually bothered to quote the officer’s sarcastic response whether they too may have heard his insolent tone of voice as well.

Most encouraging perhaps was the court’s rejection of the typical State argument: that the police interest in investigation – on a whim – is more important than the citizen’s privacy interests:

For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, see New York v. Class, 475 U. S. 106, 112– 113 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles, 525 U. S., at 117. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space.

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals.

Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

No matter how this decision gets limited in the future, those last two paragraphs are very heartening. I’ll take a renewed interest in the original understanding of the purpose of the Fourth Amendment any day of the week.

…and if they do, will a judge toss out any evidence they obtain as a result? The short answer is: police in almost all circumstances are allowed to say whatever they want to get you to incriminate yourself. A short example follows:

When Al Pacino, the low level mobster, introduces Johnny Depp, the undercover police agent, to the other Mafiosos in Donnie Brasco, Depp’s character is justifiably met with some initial skepticism.  Is an undercover police agent in this situation duty bound to reveal his real identity in this situation, if he is asked, “Are you a cop?” Imagine the consequences.

Common sense tells us the answer is no. The undercover agent doesn’t have to choose death simply to maintain the constitutionality of the investigation. (And the U.S. Supreme Court came to the same conclusion in Hoffa v. United States. Yes, the Jimmy Hoffa.)

Even before that decision, police ruses were commonplace, and they have become even more so in today’s drug war environment.

In the recently decided Krause v Kentucky, however, the state’s Supreme Court decided that a trooper went too far over the line in obtaining a drug suspect’s consent to search his home. The police in this case woke the defendant up at 4 o’clock in the morning to tell him that his roommate had been accused of rape that very night. They needed to search the house to verify whether the accuser’s description of the apartment matched the scene of the alleged crime.

In fact, there had been no rape, not even an allegation, nor an accuser. It had all been a lie, intended to cause the known innocent person to allow police entry, where they could then search for drugs. Cocaine was eventually found “in plain view”.

The Court decided to reverse the conviction (affirmed by a lower court) because Schneckloth v. Bustamonte requires consent to search not to be coerced. Even that part of the Schneckloth decision has been watered down over the years, but the Court found that upholding the search would discourage future citizen cooperation in real cases.

Since the state decision was decided, at least in part, on federal Fourth Amendment grounds and federal caselaw, the State of Kentucky may appeal this all the way to the U.S. Supreme Court. Part of me wants to know what the result would be, and the other part fears further erosions of our constitutional rights. As far as the drug war goes, is there no end in sight to the ridiculous police state we are becoming?  Don’t forget, this ludicrous set of facts led to a conviction which was initially affirmed.

(Hat Tip to the Fourth Amendment blog for initially posting about this case; also, please read that blog for useful tips on navigating the confusing Kentucky Supreme Court’s webpage, if you want to read the decision.)