27 April 2009

Gant: A Sea Change in Car Searches

[1] On 21 April 2009 the US Supreme Court changed decades of law enforcement practice by clamping down on searches of vehicles incident to arrest. Arizona v. Gant is a tour de force by Justice Stevens in which he weaves his way through all the old precedents to change the interpretation most lower courts have given to the ability of officers to search cars after arresting their drivers.

[2] Gant's theory both prunes and widens the circumstances under which an officer may search the car after an offender is arrested. In reality, the effect is a net reduction in the scope of officer searches.

[3] The prior rule was that after any arrest police could search the passenger compartment of a vehicle because of "exigent circumstances." In other words, once the offender was placed under arrest the officer could search the car in order to preclude the possibility that the offender might destroy any evidence or reach a weapon. Of course, any sane officer restrains a person he has placed under arrest before he turns his back on that person in order to search the car. However, this had never seemed to bother lower courts and had even seemingly been given a pass (although never specifically approved) by the US Supreme Court.

[4] The new rule has 2 parts. First, if there are actual exigent circumstances, such that the defendant(s) is not restrained and could actually reach something inside the vehicle, a search can take place; however, "exigent" searches can no longer happen when the offender is handcuffed and properly restrained. Since an arresting officer should always prioritize to his own safety, this situation will be extremely rare.

[5] Second, an officer can search a vehicle if it is reasonable to believe evidence of the crime the offender was arrested for will be found in the car. An example is if an officer arrests someone who has just stolen from Mega^Store and sees two of the stolen items in the car; it'd be reasonable to search the car for the other 4 items the thief stole at the same time.

[6] Every lawyer I spoke to seemed to have pretty much the same reaction: they predicted a great upsurge in vehicle impoundment and inventory searches subsequent to the impoundmment. Typical of such reactions was lawscribe's (via Twitter): "You will [see] a massive jump in inventory searches and careful review of dept policies to make cars consistently easier to impound."

Impounding in Virginia

[7] With this in mind I went looking to see what is allowed vis-a-vis the impounding of vehicles. In Virginia the controlling case is King v. Commonwealth from 2002. King lays out a set of rules under which impoundement can take place. The first rule is that there must be a standard police policy under which the vehicle is impounded. However, even a written policy does not, in and of itself, make the impoundment valid.

[8] Beyond the written policy, there are only two justifications for impounding a vehicle. A vehicle must either be a risk to public safety or need to be safeguarded. Although not absolutely exhaustive, the generally approved circumstances for impoundement are when the vehicle is blocking traffic, trespassing on private property, or violating parking ordinances/laws. Neither the fact that a vehicle is parked next to a busy road nor that it may be vandalized is a satisfactory reason to impound a vehicle.

[9] A vehicle also may not be impounded if the offender is able to arrange for the vehicle to be moved. Generally, the mere fact that an offender is under arrest will preclude such an arrangement. However, if there is another citizen present at the scene, who is a legal driver and who will take the car to where the offender wants it, an officer is required, by Virginia Code sec. 19.2-80.1, to allow that citizen to drive the car from the scene.

[10] Finally, a vehicle may not be impounded for the purpose of performing a search upon it.

[11] Personally, I don't see impoundment becoming a major issue in Virginia. King is solid, long-standing precedent rooted in the 4th Amendment so that the rules cannot be changed by the Virginia General Assembly.

1 comment:

Benjamin Wolf said...

I wrote a post on the meaning of Gant’s new test and its relationship to New York's rules. I was particularly interested because I wanted to know how it would relate to New York’s interpretation its State Constitution which has been stricter on the police than SCOTUS’ Belton decision. I wanted to know whether the Gant decision made the Supreme Courts SILA rules stricter than, more lenient than, or the same as New York’s existing law. I concluded that even after the Gant decision, their rules are still more lenient than New York’s and therefore New York SILA jurisprudence will probably not be affected by Gant. The link follows: