03 June 2004

Thornton v. United States: Is There a Light at the End of the Tunnel?

As those of you who’ve read this blawg for long already know, when you get in your car you give up certain basic constitutional rights (basically you waive much of the 4th Amendment). Thorton takes a step even further down that road.

Can an officer search a car after the driver gets out and walks away under the pretense that he is securing dangerous items within the suspect’s reach and/or keeping the suspect from destroying evidence?

The Majority:

“So long as an arrestee is [a] "recent occupant" of a vehicle . . . officers may search that vehicle incident to the arrest.”

Reasoning: Belton allows the search of a car’s entire interior if the suspect was contacted while still in the vehicle. Belton allows this in order to remove weapons within the reach of the arrestee and prevent concealment or destruction of evidence.
In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle. . . The stress is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle. In either case, the officer faces a highly volatile situation. It would make little sense to apply two different rules to what is, at bottom, the same situation.
Analysis: This opinion just gets pummeled by both the concurring opinions and the dissent (I’ll address those in a bit).

This decision had to be decided the way it was because otherwise Belton falls to the wayside as useless precedent. The hanging thread waiting for a good yank to unravel Belton has been the fact that well-trained, sane police officers remove people from cars when they believe that the person may be dangerous or might try to destroy evidence. Why do they do this? Because once you remove someone from the vehicle (and most likely handcuff him) it removes the arrestee from any place where he might reach a weapon concealed in the car or destroy any evidence secreted there. The majority even specifically recognizes this:
In some circumstances it may be safer and more effective for officers to conceal their presence from a suspect until he has left his vehicle. Certainly that is a judgment officers should be free to make.
That’s code for saying once the suspect has moved to a place where he can no longer reach any weapons or incriminating evidence in the vehicle the officers can arrest him so that they can search his car to get the items he is no longer in a position to use or destroy. It’s damn chilling to see the Supreme Court of the United States urging law enforcement into actions purposefully taken to circumvent our rights.

The Court goes on to claim that a recent occupant test is more precise than the “contact initiation” test urged by the petitioner. It tries to raise the bogeyman that police and courts will have fits trying to figure out when contact was initiated. It just doesn’t work. We all know that contact is easily delineated (it’s when the officer turns on his car’s lights or when he first talks to the guy). It’s very difficult to state the vagueries in a test where the line is drawn at whether the suspect is in or out of the car. On the other hand if you’ve ever seen or read cases trying to decide how long police can impose on a suspect you know how hard it is to determine a reasonable time.

This opinion is a badly reasoned attempt to shore up an undefendable precedent.

How did we get here?

Well, the first step down this path was grounded in reason. Chimel v. California sets out an exception which makes sense. If an officer’s in a room with an arrestee he can search the immediate area in order to make sure there are no weapons or evidence which the arrestee might put hands on to either use or hide/destroy. There are all sorts of scenarios where this exception makes sense. For instance, if a single officer cannot take the arrestee away from the area of the arrest because someone outside is shooting or there is an injured victim and the officer must wait for an ambulance. In these cases it would behoove the officer to search the area near the arrestee to make sure nothing happens while the officer is otherwise occupied.

The problem is that there is no such thing as an “exception.” When police departments learn about “exceptions” which will allow them further latitude policies (official and unofficial) change. So a search of the immediate area becomes the norm, even when police could easily maintain control over the arrestee and remove him from the area. 11 years later the question arises as to whether a search of a car can be done without warrants in Belton. Looking to the regular practice ne exception of searching the area around someone arrested the Court carves out another exception allowing the search of the entire passenger compartment of a car and this proceeds to become the norm. The only problems are that the “exception” isn’t and the reasoning for the search of the car is bad. How often is an officer going to leave the arrestee in his own car where he could reach the weapon or the drugs? The answer to that should be about 0% of the time. So Belton becomes an extension of police powers without any rational explanation as to why we should allow this bypassing of the 4th Amendment. And now comes Thornton which extends Belton to allow car searches when someone was “recently” in the car. The threat? That an arrestee might get back into his car to access a weapon or destroy drugs. In this particular case, the threat that a handcuffed man, locked in the back of a patrol car might somehow break out and run back to his car to accomplish these things. A sensible rule has been stretched until there is no way to rationally justify it.

The Concurrences

Justice O’Connor: Having joined all of the Majority’s opinion except footnote 4 (a dismissal of Scalia’s rationale), Justice O’Connor concludes “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 justified by the twin rationales of Chimel v. California. That erosion is a direct consequence of Belton's shaky foundation. While the approach Justice Scalia proposes appears to be built on firmer ground, I am reluctant to adopt it in the context of a case in which neither the Government nor the petitioner has had a chance to speak to its merit.”

Justice Scalia:

Proposed Standard: (1) Application of Chimel to vehicles should be limited to those circumstances when there is an actual threat to safety or evidence. (2) Searches of vehicles should be limited to those circumstances where there is a reasonable basis to believe that evidence of a crime is in the car (reasonable articulable suspicion).

To begin with Justice Scalia dismembers the majority’s reasoning:
When petitioner's car was searched in this case, he was neither in, nor anywhere near, the passenger compartment of his vehicle. Rather, he was handcuffed and secured in the back of the officer's squad car. The risk that he would nevertheless "grab a weapon or evidentiary ite[m]" from his car was remote in the extreme.
. . .
I see three reasons why the search in this case might have been justified to protect officer safety or prevent concealment or destruction of evidence. None ultimately persuades me.

The first is that, despite being handcuffed and secured in the back of a squad car, petitioner might have escaped and retrieved a weapon or evidence from his vehicle--a theory that calls to mind Judge Goldberg's reference to the mythical arrestee "possessed of the skill of Houdini and the strength of Hercules."
. . .
The risk that a suspect handcuffed in the back of a squad car might escape and recover a weapon from his vehicle is surely no greater than the risk that a suspect handcuffed in his residence might escape and recover a weapon from the next room--a danger we held insufficient to justify a search in Chimel.
. . .
The second defense of the search in this case is that, since the officer could have conducted the search at the time of arrest (when the suspect was still near the car), he should not be penalized for having taken the sensible precaution of securing the suspect in the squad car first. . . The weakness of this argument is that it assumes that, one way or another, the search must take place. But conducting a Chimel search is not the Government's right; it is an exception--justified by necessity--to a rule that would otherwise render the search unlawful.
. . .
The third defense of the search is that, even though the arrestee posed no risk here, Belton searches in general are reasonable, and the benefits of a bright-line rule justify upholding that small minority of searches that, on their particular facts, are not reasonable. The validity of this argument rests on the accuracy of Belton's claim that the passenger compartment is "in fact generally, even if not inevitably," within the suspect's immediate control. By the United States' own admission, however, "[t]he practice of restraining an arrestee on the scene before searching a car that he just occupied is so prevalent that holding that Belton does not apply in that setting would ... 'largely render Belton a dead letter.'"
Having dismissed all the Belton rationales, Justice Scalia sums up:
The popularity of the practice is not hard to fathom. If Belton entitles an officer to search a vehicle upon arresting the driver despite having taken measures that eliminate any danger, what rational officer would not take those measures? If it was ever true that the passenger compartment is "in fact generally, even if not inevitably," within the arrestee's immediate control at the time of the search it certainly is not true today. As one judge has put it: "[I]n our search for clarity, we have now abandoned our constitutional moorings and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find." I agree entirely with that assessment.
Having exposed the Majority decision’s failure, Justice Scalia then moves forward with a novel theory which seems to work:
If Belton searches are justifiable, it is not because the arrestee might grab a weapon or evidentiary item from his car, but simply because the car might contain evidence relevant to the crime for which he was arrested.
. . .
Numerous earlier authorities support this approach, referring to the general interest in gathering evidence related to the crime of arrest with no mention of the more specific interest in preventing its concealment or destruction.
. . .
There is nothing irrational about broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested. The fact of prior lawful arrest distinguishes the arrestee from society at large, and distinguishes a search for evidence of his crime from general rummaging. Moreover, it is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended.
At this point alarms should be blaring in everybody’s head. The word “assume” should trigger that in the reading of any decision as well as the implicit assumption that “only the guilty” will be effected. The problem here is that the guilty are almost never the only ones effected - they are just the only ones who appeal. One can foresee all sorts of piddly stops wherein the officer does a minor arrest in order to search a suspicious car; remember in Virginia although there is a statute forbidding arrest for many minor offenses it is merely RWR.

There is also the worry that this is an authorization for general warrants. To his credit, Scalia takes this on directly pointing out conflicting precedent as far back as Entick v. Carrington, 19 How. St. Tr. 1029, 1031, 1063-1074 (C. P. 1765). He points to a couple cases which distinguish this precedent but does not elaborate on how they do so: Dillon v. O'Brien, 16 Cox C. C. 245, 250 (Ex. Div. Ire. 1887) & Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 303-304 (1967).

Scalia concludes:
Recasting Belton in these terms would have at least one important practical consequence. In United States v. Robinson, 414 U. S. 218, 235 (1973), we held that authority to search an arrestee's person does not depend on the actual presence of one of Chimel's two rationales in the particular case; rather, the fact of arrest alone justifies the search. That holding stands in contrast to Rabinowitz, where we did not treat the fact of arrest alone as sufficient, but upheld the search only after noting that it was "not general or exploratory for whatever might be turned up" but reflected a reasonable belief that evidence would be found ("This right and duty of search and seizure extend, however, only to articles which furnish evidence against the accused"; seizure authority is limited to relevant evidence; [and an] officer should "consider the nature of the charge" before searching) The two different rules make sense: When officer safety or imminent evidence concealment or destruction is at issue, officers should not have to make fine judgments in the heat of the moment. But in the context of a general evidence-gathering search, the state interests that might justify any overbreadth are far less compelling. A motorist may be arrested for a wide variety of offenses; in many cases, there is no reasonable basis to believe relevant evidence might be found in the car. I would therefore limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.
Analysis: The difficulty with this approach is fairly obvious. Which criminal arrests would justify a search of the interior of a car? Adopting this rule would lead to numerous appeals as courts delineated which arrests fall into this category. However, it should be pretty easy to shake out. Arrests for possession of drugs with intent to distribute, or possession of stolen property could lead to a search. Arrests for driving suspended or obstructing justice (misdemeanor pissing off the cop) cannot lend credence to a search. In other arrests, such as armed robbery, the search might be justified if it was within a reasonable time of the event (say 3 hours).

A more pertinent concern might be the general warrant concern. On a theoretical level it is a greater concern than a search under the Belton/Chimel rationale. However, in its real world application Belton has become an authorization for searches which are the same scope as searches under general warrants. At least the proposed standard provides some sort of curb to the unfettered ability of the officers to search any car they wish.


Justice Stevens

Proposed Rule:
Belton should apply to one stopped for arrest while in the car. Chimel should govern police searches of a pedestrian outside his automobile. Probable cause should be required to search a car after the driver has departed from it.

While continuing to support Belton, Stevens indirectly rejects Scalia's option and favors a purer application of constitutional principle for those who have departed their cars:
The bright-line rule crafted in Belton is not needed for cases in which the arrestee is first accosted when he is a pedestrian, because Chimel itself provides all the guidance that is necessary. The only genuine justification for extending Belton to cover such circumstances is the interest in uncovering potentially valuable evidence. In my opinion, that goal must give way to the citizen's constitutionally protected interest in privacy when there is already in place a well-defined rule limiting the permissible scope of a search of an arrested pedestrian. The Chimel rule should provide the same protection to a "recent occupant" of a vehicle as to a recent occupant of a house.
Stevens then concludes that the Majority's decision is a vast expansion of police powers:
Unwilling to confine the Belton rule to the narrow class of cases it was designed to address, the Court extends Belton's reach without supplying any guidance for the future application of its swollen rule. We are told that officers may search a vehicle incident to arrest "[s]o long as [the] arrestee is the sort of 'recent occupant' of a vehicle such as petitioner was here." But we are not told how recent is recent, or how close is close, perhaps because in this case "the record is not clear." As the Court cautioned in Belton itself, "[w]hen a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority." Without some limiting principle, I fear that today's decision will contribute to "a massive broadening of the automobile exception, when officers have probable cause to arrest an individual but not to search his car.
Analysis: With respect, in one sense, Justice Stevens is wrong. This is not an expansion of the automobile exception, it is an apology for practices already in place. However, he is also right; the danger is that police, armed with this decision, will not stay within the parameters they currently follow but will push the envelope. Stevens theoretical analysis is spot on. There are no two ways about it, prior to this decision the law should have been exactly as per the rule he expounds.

Overall Analysis: Unfortunately, the scope of constitutional rights for those who choose to drive a car (not really a choice in modern society) continues to be shrunk by the Court. Law enforcement will take this decision and push it as far as possible. One can foresee all sorts of excuses for searching a car after longer and longer periods of time: “Once Defendant left his car and went inside, Officer Smith maintained the car in view for the entire 2 hour stakeout until we arrested the Defendant after he had fallen asleep (for officer safety reasons). We then searched the car because it had only been a short time, the Defendant had only gone as far as his house, and car had not been used or approached by any other individuals.” Trial courts and courts appellate will support these expansions.

It's a bad decision and it will lead to bad results.

Of course a good part of this decision's problem rises from the fact that it is almost impossible to defend the carte blanche searches allowed by Belton. Unless willing to recognize the terrible reasoning in Belton and throw it out the Court will never be on solid ground in this area and all decisions will be GIGO.

Assuming Belton remains good law, Justice Stevens provides the most logical and easily followed rule. Nevertheless, there seems to be no real interest in adopting this rule.

Scalia offers a tempting choice. It would get rid of the Belton fallacies and offer a test no more confusing than any other test concerning the 4th Amendment (and probably far less than trying to divine what appellate courts think a reasonable person's reasonable expectation of privacy is – almost always far less than the expectations of people I know). As I would like to see drivers' 4th Amendment rights restored and enforced, it is not my preference. Still it is a siren's song in that it has the potential for adoption by the courts. There are definitely 2 votes here and probably a third in O'Connor. And I can't see the reason for footnote 4 except to keep members of the Majority who were leaning philosophically on board procedurally. So there is still some hope for a standard which would restore some rights to the citizenry. It's not the one I would prefer but anything's better than the standardless shakedown searches which are now allowed.


Anonymous said...

Very interesting post. I've always been interested in autombile-related Fourth Amendment rights. It seems to me that a car SHOULD be just as protected as a house, given that the Fourth Amendment lists "effects" right up there with "persons" and "houses".

I have heard that even saying, "I do not consent to your search of my house/car/etc. but I will not stop you" -- the idea being to officially deny consent to a search, without being accused of "obstructing justice" -- can be, and has been, construed as consent by the courts. Is this true?

Ken Lammers said...

In the cases where my clients have refused consent but allowed the search they have never said the second part of the statement you report. I would probably advise my clients against saying anything other than "No, you cannot search my car" and standing mute if the officer said he was going to anyway. Anything else might give wiggle room to a court which really wants to admit that 5 lbs of marijuana.

Sniffy said...

Excellent analysis - You should do this for a living. :)

We're living in a progressively more and more frightening country... If only I could say that there were somewhere better, that was more protective of the average person's rights and humanity.

Anonymous said...

the bottom line is that if the full weight of the govt is on you law or no law you are a goner...untill padilla gets a hearing we are free at the whim of the govt. when the law can be ignored or suspended arbitrarly there is no law..

Anonymous said...

I live in central Illinois. I pulled into a "farm store (private property)" and parked my vehicle, my girl friend and I got out of the vehicle and shut the doors. We started walking to the store entrance and noticed an unmarked police car pulled behind my car. The police officer motioned me to come there, so I did! He told me I was driving on a suspended license, which I said there's been a mistake. He asked for my drivers license, so I went back to my car and got my wallet and gave my d-license. They had been suspended 1 week earlier, which I had no idea! He told my girl friend 100.00 bond and she could pick me up at the station. He placed me in the police car and then started searching my car. This added more tickets for me, then he searched my girlfriends purse, with no consent to search either. Is this legal??? please email me asap!!