The rules regarding searches of motor vehicles underwent a huge change on April 21st. Just exactly what happens as the result of last month's United States Supreme Court's decision in Arizona v. Gant remains to be seen. Out of curiosity, I looked at all the drug and weapons arrests in the week prior to the decision. There were 64. Of those, 31 had "street" as the location code. Of those, 27 involved a motor vehicle. Of those, 3 arrests were searches incident to arrest that would have been prohibited by Arizona v. Gant. Most of the searches were based on either probable cause or consent.
I was surprised by that, as it seems to me that a large percentage of these arrests emerge from searches incident to arrest. If this slice of Incident Reports is any indication, though, those searches are usually based on something more than the mere fact that an occupant of the car had been arrested. We'll have to watch this over a period of time and see what happens, but at first blush it would appear to me that the impact of the Court's decision may not be as great as I had originally thought.
Monday, May 4, 2009
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17 comments:
Chief,
Here in the United States law abiding citizens often do not appreciate the protection provided by our fourth amendment.
I took it for granted myself for many years. I figured what the heck I am not breaking any laws, why should I worry about being stopped and searched? On a trip to Canada a few years back I realized just what our fourth amendment means.
I was in my truck headed to Edmonton, Alberta. At that time radar detectors were illegal in Alberta. I had stopped at a gun shop in Shelby, Montana and left both my handgun and a radar detector with them, knowing that they were not allowed in Canada.
Just out of Red Deer I was pulled over by a Royal Canadian Mounted Police officer. The RCMP officer told me he was going to search my truck. Note he didn't ASK me if he could search my truck but he TOLD me he was going to search my truck. I asked him what it was he was looking for. He told me handguns and radar detectors. I showed him my receipt from the gun shop in Montana but he wasn't interested. He searched every nook and cranny of the cab of my truck.
I had been burglarized about a year prior to this incident and the feeling I had when I saw that all my belongings had been ransacked was similar to what I felt watching that Mounty go through my stuff. That was the first time I realized what the fourth amendment was really about.
At times I really get angry when I see some criminal get away with a crime because of a poorly conducted search. Then I realize just how wise our Founding Fathers were in writing these protections into our Bill of Rights.
Gun Nut
Chief:
I'm not quite sure I understand in what circumstances this would effect the officer's authority to search a vehicle after an arrest.
Do you have an example of what this change will actually effect?
2 things...
1. I will now make sure to pack a pair of dirty underwear in my bags when I travel to Canada.
2. I agree that the search of your vehicle, Gun Nut, was beyond ridiculous. But, I don't think it's unreasonable to allow police the ability to search someone's vehicle incident to their arrest. Common sense tells us that, if they've broken the law once, they're likely to do it again. I believe in preserving all Constitutional rights, but I also believe in giving law enforcement officials every tool available in catching criminals.
9:09-
Under the previous precedent, New York v. Belton(1984), if you arrested the occupant of a vehicle, you could conduct a warrantless search of the vehicle incident to that arrest. Common situations would include stopping a speeder and discovering that he's drunk, or suspended, or has a warrant for an unpaid traffic ticket.
I have a great idea. Most of the times other people run and hide when I proclaim "I have an idea"
So here goes:
A chief's corner meet and greet, once a year. We can get a community room, someone to donate a few pizzas. Cheif, you could give a short lecture, hand out neighborhood watch, other police related information ect. I would be happy to volunteer to help orginize it. Open to the public. Every year a new topic.
People with screen names would have one kind of name tag and anon posters would have another. You have my contact information if we want to do this. I would guess, Gun Nut, Grundle and others would like this idea too.
What do you other readers think?
Jim J,
That is a great idea. BTW my favorite pizza is Pizza Hut Supreme thin crust. Almost sacreligious in Valentino's country.
Gun Nut
If I may provide a description of the type of incident that this decision affects: Some years ago on a boring 3rd shift, my recruit was doing his best at trying to stay busy. The recruit observed a vehicle with no front license plate and conducted a stop on that vehicle. The driver made a weak effort at ditching us but was quickly stopped in an alley. He was found to have a warrant and a suspended license. The driver was taken into custody and a search of his vehicle was conducted. A small amount of marijuana and paraphernalia was located during that search. The driver had an epiphany and decided to tell my recruit about a couple of entrepreneurs who were selling weed from a local motel. We followed-up on that information and were able to corroborate what the driver had told us and ultimately obtained a warrant for the motel room. More arrests were made and more drugs were seized as a result of that warrant. None of this would have occurred had we not conducted the search of that vehicle incident to the arrest of the driver.
I am sure many other officers could relate similar stories of cases that were made from just such a search.
Atticus
I am not sure what you say is true. The way I read Gant it would not stop an inventory of the vehicle. If you were towing the vehicle because you were taking the only occupant of the vehicle into custody you could have inventoried the vehicle. Nothing in Gant prevents you from doing an inventory. The small amount of marijuana and paraphernalia would have been found. The epiphany would still have occurred and the results would have been the same
Gant reasserts Chimel which allows us to search incident to arrest where evidence of the crime for which the person is being arrested might be in the vehicle.
Pretty simple way around this. Tow every vehicle that the driver is arrested out of for safe keeping instead of leaving it at the side of the road. The vehicle must be inventoried to make sure there is no dispute about something missing when the vehicle is picked up at the tow lot. If every vehicle is done this way, it is not a search incident arrest.
It might take a few more minutes, but well worth the time.
car54, that's what she said:
True, Gant doesn't address inventory searches, but I think anyone who starts impounding cars which previously would have been left legally parked should rethink the strategy. It would be perilously close to a pretext search, and I think the courts will ultimately take a dim view of that. Impound for legitimate police purposes--not as a pretext for conducting a search.
If the car Atticus and his/her recruit stopped was illegally parked in the alley, there may have been a legitimate need to tow it away to the impound lot.
Do what you would ordinarily do, and let the chips fall where they may. Concocting a reason to tow where the grounds are skimpy(i.e. "safekeeping") is a recipe for trouble, IMHO. Bad facts make bad law.
First of all, I like the "meet and greet" idea, and I would be glad to help out in any way I can. Secondly, though I hate to see anyone get away with a crime simply because law enforcement didn't have grounds for a search, I think there are enough cases of unwarranted searches to justify the court's decision.
I agree with the new rules on the Fourth Amendment, crazy as that seems here. That search in Canada on Gun Nut's truck is absurb...is that where we should go in the USA?
I am not saying to start towing everything to get around Gant. I work for an agency where if you remove the operator of the vehicle and a owner is not present to take custody of the vehicle it is inventoried and towed for safekeeping. We do not leave the vehicle even if it is legally parked, your policy appears to be different. With the incident Atticus recited an officer with my agency would have towed the vehicle.
To expand your towing and inventory policy post Gant would indeed invite trouble. A rereading of Chimel and Belton will lead in the right direction. Officers search to protect onesself and to find evidence of the crime for which the person is being arrested. The Court in Gant only makes clear the way Chimel and Belton are to be applied.
Chief I agree with you in that those who now choose to use an inventory for evidence discovery will only be creating a situation where the inventory will come under scrutiny.
car54-
Good, we're on the same page. A sudden change in an individual officer's practice (or a department's policy) in order to create grounds for an inventory search would be ill-advised.
this is an awesome ruling! if any of you have ever been riding in a vehicle with a "curly" haired guy and got pulled over for taking an exit "too fast" and all of a sudden the drug dog is out searching when you have done nothing wrong, you would agree with me. searches are time consuming, wasteful, and an invasion of privacy. just because i'm "driving after dark" (DAD) doesn't mean you can search my vehicle to see why i'm out...some of us don't work a 9 to 5 shift as for the results of these searches about the only people that seem to get their rights trampled on are the potheads because they look "different" i would much rather run into a pothead driving around than a drunk that can't even see straight!
"i would much rather run into a pothead driving around than a drunk "
I'd rather see neither one on the road! One doesn't have to be either one or the other.
It's real simple. Don't drink and drive, no DWI charge.
Don't speed on the streets or while getting off at an exit, no drug dog runs around your car (not a search by the way).
Don't carry pot in your car, the drug dog won't hit on it.
There are thousands of people in Lincoln alone that don't get tickets for speeding or for having drugs because they don't speed or have drugs on them.
GET IT?
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