Arizona v. Gant: Just Another Speed Bump?

Justin Casson, Arizona v. Gant: Just Another Speed Bump?, 45 Gonz. L. Rev. 797 (2010).

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I. Introduction

Over the past twenty-eight years law enforcement officers have enjoyed wide latitude in their authority to conduct vehicular searches.[1] Historically, a vehicular search could follow the arrest of any recent occupant, regardless of the basis for the arrest.[2] Although the Fourth Amendment protects citizens against unreasonable searches and seizures,[3] the exact location of its boundary has caused of extensive confusion.[4] Still, U.S. Supreme Court Fourth Amendment decisions certainly establish that a warrantless search is per se unreasonable, “subject only to a few specifically established and well-delineated exceptions.”[5] One of these exceptions, and the focus of this comment, is a vehicular search incident to a lawful arrest (SILA).[6]

In Arizona v. Gant, the Supreme Court sought to clarify when the vehicular SILA exception may comport with the Fourth Amendment’s warrant and warrant exception strictures.[7] Prior to Gant, when a routine traffic stop resulted in an arrest for any reason, a search of the car was permissible.[8] In clarifying prior rulings, the Gant Court held in a 5-4 decision[9] that in order to justify an otherwise unauthorized search, (1) an arrestee must be within reaching distance of the passenger compartment at the time of the search or, (2) there is reason “to believe evidence relevant to the crime of arrest might be found in the vehicle.”[10] The proper standard for determining the legality of such a warrantless search, according to the majority, hinges on whether the justifications of police safety and evidence preservation are present.[11] %CODE2%
Gant attempts to finally resolve the ongoing controversy behind the vehicular SILA exception. The decision neither affects nor excludes other search doctrines that may apply in particular cases.[12] The well-established exceptions of consent, probable cause, and the inventory search remain viable.[13] Therefore, these universal exceptions to the warrant requirement will continue to provide law enforcement wide discretion in conducting warrantless, vehicular searches. Furthermore, Gant will provide greater protection against unreasonable searches, as the Court’s holding in part permits the vehicular SILA exception only where the purpose of the search is to discover evidence relating to the reason for the arrest.[14] However, Gant’s failure to clearly identify the required nexus between the crime for which an individual is arrested and the search itself will certainly create judicial confusion; as such, the future impact of the decision remains uncertain.[15] Even still, any effort to bring back probable cause into the analysis will have a positive influence maintaining the original intent of the exception.[16] Additionally, because the decision preserves the twin rationales of Chimel v. California, it strikes a suitable balance between police officer safety and the countervailing interests of protecting fundamental constitutional rights.[17] However, in order to fully realize Gant’s ostensible objective, law enforcement agencies nationwide must establish effective procedural guidelines that can be easily implemented. Ultimately, it remains to be seen whether Gant’s newly clarified standard will succeed in providing a degree of desirable certainty in Fourth Amendment protections, or fall short of that desired goal.[18]

This comment will begin by providing a brief history of the Supreme Court’s Fourth Amendment jurisprudence and offer a background of the legal principles underlying the vehicular SILA exception. It will then explore available, alternative exceptions by which law enforcement might escape the new standard established in Gant. By emphasizing the privacy rights of individuals advocated by the Justices, the comment provides a context for the decision. Lastly, it will analyze the possible impact the decision may have on the relationship between society and policing, and the controversies that may result.

II. Historical Background

Fourth Amendment jurisprudence has been characterized as a “tension between the privacy rights of individuals and the ability of police officers to enforce the law.”[19] Over the past century, the decisions of the Supreme Court regarding warrantless searches have been exceedingly inconsistent.[20] Since surfacing in 1914 as dictum in Weeks v. United States, the SILA exception has proved to be quite challenging to implement.[21] Although Weeks only briefly touched upon the concept of warrantless searches, it did lay the groundwork for the beginnings of an established SILA exception.[22]

It did not take long for the embellishment of Weeks to become manifest. Eleven years after Weeks, the Court in Carroll v. United States allowed a warrantless search based on probable cause.[23] The Carroll Court noted that the “reasonableness of a warrantless search depended upon what was deemed an unreasonable search and seizure at the time the Fourth Amendment was adopted.”[24] By permitting the search of objects that are “in control”[25] of the arrestee, it follows that the Court essentially broadened the scope of a search to include the vehicle.[26] However, the exception was somewhat limited by the requirement of probable cause to search, and the limitation of seizures to items that might “be used to prove the offense.”[27]

A quarter century later, the Supreme Court again encountered a case similar to Carroll.[28] In United States v. Rabinowitz, the defendant argued that the warrantless search of his one-room shop violated the Fourth Amendment.[29] In holding that the test is not “whether it is reasonable to procure a search warrant, but whether the search was reasonable,”[30] the Court dismissed the challenge. Therefore, the Rabinowitz Court further broadened the scope of the SILA exception to include all places “under the [arrestee’s] control.”[31]

In 1969, the pendulum swung back when the Supreme Court considered Chimel v. California, which became the leading case concerning a search of an automobile incident to arrest.[32] While the Court did not revoke the ability of law enforcement to search during a valid arrest, the ability was severely curtailed.[33] Basically, Chimel identified only two exigencies by which warrantless searches incident to arrest could be justified: (1) “the need to seize weapons and other things which might be used to assault an officer” and (2) “the need to prevent the destruction of evidence.”[34] The Court, therefore, held that a search incident to arrest must strictly involve an area that the arrestee could reasonably access when the search is commenced.[35] The Court noted that a warrantless search is not “imperative”[36] if the dangers on which the exception was founded do not exist.[37] Therefore, the search of an entire house without a warrant in Chimel was per se unreasonable, and violated the Fourth Amendment.[38] While Chimel was limited to areas of immediate control, the Court’s specific determination of what that encompassed remained undeveloped.

In 1981 the Court took up the case of New York v. Belton to resolve the conflicting lower court opinions that evolved from applying Chimel to warrantless vehicular searches.[39] The Belton Court dismissed the challenge of a defendant claiming that since a jacket in the backseat of the vehicle was out of his immediate control, it should not be subject to a warrantless search.[40] Instead, the Court took the opportunity to create a single, familiar standard, which would provide a “bright-line” rule of law to guide officers in the field.[41] In a sweeping decision the Court decided that if the arrest of an occupant is lawful then, as a contemporaneous incident of that arrest, a search of the vehicle is reasonable.[42] Still, the Court left many questions unanswered, such as, “How long after the suspect’s arrest may a search be validly conducted?”[43]

In an effort to temporarily alleviate the confusion surrounding its supposed “bright-line” rule, the Court attempted to define “recent occupant” in Thornton v. United States.[44] Because jurisdictions were split in defining “contemporaneous,”[45] the Court also considered Belton’s application in situations where a suspect is approached outside of the vehicle.[46] Ultimately, the Court disregarded the absence of the Chimel justifications in reaffirming the very evidence-gathering rationale it had rejected thirty-five years earlier.[47] Furthermore, the Court stressed the need for a clear rule that would allow a search, “based on the suspect’s temporal or spatial relationship to the car at the time of the arrest and search.”[48] Therefore, by ruling that the Belton standard governs even when an officer does not make contact until the person arrested has left the vehicle, Thornton extended Belton.[49] Consequently, many considerations still existed to argue the framework behind a reasonable search.[50]

In the four years following Thornton lower courts still struggled to interpret the applicable bright-line standard supposedly established by Supreme Court precedents.[51] Therefore, incongruent standards emerged and arrestees found that their fate depended completely upon a particular jurisdiction’s interpretation of the law rather than the merits of their case.[52] Since vehicular SILA jurisprudence developed to be confusing at best, the time was ripe to take advantage of the occasion in Gant to reaffirm the Fourth Amendment’s guarantee against unreasonable searches.[53]

III. Analysis

The Supreme Court heard Gant to quell an outcry from courts, states, and scholars to clarify the Belton standard.[54] While law enforcement operated under implicit liberal guidelines, the constitutional protections afforded to arrestees were diminished.[55] The evolved standard constituted a linear departure from the long-established justifications of warrantless searches incident to arrest.[56] This problem stemmed from Belton’s failure to address the common situation where officer safety was not in jeopardy.[57]

The Gant Court succeeded in its tacit objective of defending the Constitution by curbing undue expansion of the Fourth Amendment. First, Gant neither affects nor excludes other search doctrines that may apply to particular cases.[58] Because the Court maintained the validity of other Fourth Amendment exceptions such as consent, probable cause, and inventory, any immediate impact the opinion may have on further exploratory searches is conceivably minimal.[59] Hence, the ruling was practical, as law enforcement still lawfully possesses alternative procedures for conducting warrantless searches. Second, the opinion provides greater protection against unbridled rummaging by police officers, as the Court’s second holding allows a search for evidence only if it relates to the reason for the arrest.[60] However, the impact of the decision is dubious because the Court failed to clearly identify the essential nexus between the crime underlying the arrest and the search.[61] Although the workability may be problematic, any attempt at tying the search to the reason for arrest is a positive step towards the original intent of the exception.[62] Third, by preserving the twin rationales of Chimel, the opinion strikes a suitable balance between police officer safety and the countervailing interest of protecting fundamental constitutional rights.[63] Although it has been argued that this decision could create an incentive for officers to purposefully leave a scene unsecure in order to apply the Chimel exception,[64] the solution to this sort of imprudence is not the responsibility of the judiciary, but that of the respective police departments.[65] For that reason, this decision’s impact on the legal field is not an unduly burdensome new migration, but an attempted return to the critical protections of the Fourth Amendment.

A. Maintaining Alternative Search Doctrines Will Allow Officers to Continue Evidentiary Explorations through Other Means

“[T]he course of true law pertaining to searches and seizures . . . has not . . . run smooth.”[66] Since Weeks,[67] a few specific, well-established exceptions have been carved out from the warrant requirement of the Fourth Amendment.[68] The Gant Court recognized these entrenched exceptions, and allowed the other search doctrines to remain unaffected. Therefore, by maintaining a realist jurisprudential model, the Court provides fair and balanced alternatives.

The dissenters in Gant fervently exaggerate any future negative impact on the law.[69] Recognizing that police officers are inspired by a desire to gather evidence, it’s noteworthy that the ruling in Gant will not significantly alter that opportunity.[70] For example, in South Dakota v. Opperman, the Supreme Court ruled that routine inventory searches of automobiles lawfully impounded by the police are reasonable.[71] The Opperman opinion noted three administrative “community caretaking functions”[72] justifying the exception: (1) to prevent accidents and ensure the protection of the police from danger; (2) the protection of the owner’s property; and (3) the protection of police from allegations of the property being lost or stolen.[73] In essence, a search that police may not be authorized to conduct at the scene can be performed at the impound lot without regard.[74] Granted, this is not to say that in every instance of arrest an officer may simply impound the car and freely search. However, ultimately, this exception simply notes an alternative path by which a warrantless search can occur.[75]

Seemingly, any claim that an immediate search is required in order to obtain and preserve evidence is not entirely true.[76] Anything observed by the officer during an inventory search is admissible against the defendant.[77] As this is just one of the “specifically established and well-delineated exceptions”[78] to the Fourth Amendment warrant requirement, law enforcement is sure to find a way in which to perform evidentiary searches.[79] Consequently, it is reasonable to estimate that Gant will lead to a considerable increase in the annual execution of inventory searches.[80] However, the consequence of Gant’s impact does not lie in the certain increase of these searches, but in the motivation and manner behind them.[81] While a recent post-Gant Court struggled with just this issue,[82] it appears that the judiciary is going to take a very lenient standard when deciding the constitutionality of any given inventory search.[83]

Still, it is worthy to note the Court’s long-time recognition of this dilemma.[84] Nearly two decades before Gant, the Supreme Court decided Florida v. Wells.[85] Citing the Florida Highway Patrol’s lack of clear policy regarding the performance of inventory searches, the Court suppressed the marijuana found in a suitcase in the back seat of an impounded vehicle.[86] Realizing the possibility for exploitation, the Court recognized that “police may use the excuse of an ‘inventory search’ as a pretext for broad searches of vehicles and their contents.”[87] Yet, the solution posited by the Court, and still in effect today, is for police policy to mandate “the opening of all containers [during an inventory search] or of opening no containers.”[88] While the ostensible purpose of this approach is to prohibit the exercise of police discretion, the obvious ease with which a department can circumvent the purpose of the exception is intolerable. Presumably, as long as a department designates the standardized police procedure as opening every single item within the impounded vehicle, this will likely satisfy the good faith requirement.[89] Accordingly, despite Gant’s honorable narrowing of vehicular SILA exception, it will not take considerable creativity by law enforcement to effortlessly dodge this supposed speed bump.

Alternatively, if an officer is unable to validate an inventory search, one may attempt a search through another common exception to the warrant requirement: voluntary consent.[90] A person may waive Fourth Amendment protections by expressly or impliedly consenting to an officer’s request to search the vehicle.[91] Still, the scope of the search may not exceed the scope of the consent given.[92] As an example, in United States v. Rivera, police stopped the defendant for tailgating another vehicle.[93] After obtaining consent, the police began to search the vehicle for suspected drugs.[94] Because of bad weather, the police took the vehicle to a nearby gas station garage to continue the search.[95] Although the officers found three packages of cocaine after dismantling the car, the court held that the search was beyond the scope of consent and therefore suppressed the evidence.[96] Notwithstanding that holding, it must be recognized that voluntary consent still remains a viable alternative to the Fourth Amendment warrant requirement and can effectively be used to negate some of the restrictions established in Gant.

The large majority of valid warrantless searches derive from the existence of probable cause.[97] Contrary to the SILA exception discussed in Gant, a search need not be for evidence related to the offense of arrest when based on probable cause.[98] It follows that “a full search is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”[99] This broad exception does not rely upon the validity of an initial arrest in order to search.[100] In United States v. Ross, the Supreme Court held a search of the defendant’s vehicle constitutional by likening an officer’s judgment of probable cause to that of a magistrate.[101] By authorizing police officers to act with the same discretion as that of a judge, the opportunities in which to conduct warrantless searches are limitless.[102] Thus, although the impact of Gant might initially seem profound, when one considers the Fourth Amendment exceptions that are still available to law enforcement, it becomes apparent that officers continue to possess a variety of alternatives in which to obtain evidence.[103]

This observation is not meant to intimate that all police departments operate under a perverse or malicious motive.[104] With twenty-eight years of routine police procedure suddenly eradicated,[105] it is logical to expect that police departments will be scrambling to establish a solution to this inconvenience. Given the alternative warrantless exceptions recognized by the Supreme Court, what is to stop police officers from utilizing these substitutes?[106] While Gant succeeds in delaying the gradual corrosion of the search incident to arrest context, the exceptions to the Fourth Amendment warrant requirement have swallowed the rule, making inescapable a superfluity of warrantless searches.

B. Despite Creating Greater Protection Against Unreasonable Searches, the Vague Standard Set Forth By the Court Will Create Further Confusion

Until the Court’s decision in Gant, a search of an arrestee’s car unrelated to the reason for the arrest could have occurred without question.[107] By holding that the search incident to arrest exception applies only when an officer has reason to believe that items related to the crime of arrest might be found, the Court properly reduced citizen vulnerability to arrest whenever engaging in the common activity of riding in an automobile.[108] The Gant Court borrows this second section of its two-part rule from Justice Scalia’s concurrence in Thornton, and implements it in a way that truly complements the first section.[109] While this “reasonable to believe” standard has been attacked for often requiring less than probable cause,[110] one scholar noted that “the greatest threat to citizens’ Fourth Amendment protections . . . is not searches that take place based on individualized suspicion less than probable cause but arbitrary searches authorized on no suspicion whatsoever.”[111] Absent concerns for officer safety and evidence preservation, no government interest is strong enough to justify rampant evidence gathering.[112]

The position advanced by Justice Scalia in Thornton and subsequently adopted in Gant’s two-part rule reduces the historical flagrance of Belton. The Court’s standard triggers a search only when an officer has reason to believe an individual is involved in criminal activity.[113] Before Gant, a Belton search could be triggered after an arrest for a mere traffic violation.[114] However, under Gant an arrest for a normal traffic offense will never authorize a warrantless search without probable cause.[115] Arrests alone do not give officers the authority to sweep through one’s vehicle to probe for unrelated evidence.[116] This ruling is therefore consistent with the concepts of a search warrant: restriction to specific criteria.[117]

It is imperative to recognize the critical fact that conducting a warrantless search “is not the Government’s right, [but] an exception—justified by necessity—to a rule that would otherwise render the search unlawful.”[118] This is more than trivial semantics or simple formalistic jurisprudence, as the sole purpose of the Fourth Amendment lies in protecting privacy rights that are too precious to jeopardize.[119] In the years following Belton, broad judicial interpretation created isolation between the very motive behind the exception and the daily practice of law enforcement. In short, “we [had] . . . floated to a place where the law approve[d] of purely exploratory searches of vehicles during which officers . . . are allowed to rummage around in a car to see what they might find.”[120] Therefore, the Court’s decision to relate a search to the reason of arrest is of chief significance to every citizen on the roads of America.

Nevertheless, the Court’s adoption of Justice Scalia’s approach is not without hazardous complications.[121] For instance, the opinion expressed the “reasonable to believe” standard for discovering evidence relevant to the arrest as “might” in the first paragraph and as “likelihood” in another.[122] When one turns to Justice Scalia’s approach for further explanation and context, the only reassurance offered for the rationale is that it is, in effect, the lesser of two evils.[123] This clearly creates a significant issue relating to the future workability of this doctrine.[124] An explanation for this evolving quandary lies in Gant’s failure to recognize and predict the frequent circumstances in which an arrestee’s crime does not fall neatly into the “reasonable to believe” standard.[125] For example, the defendants in both Belton and Thornton were arrested for drug related offenses, making the discovery of related evidence somewhat likely, and certainly within the bounds of this exception.[126] Conversely, the defendant in Gant was arrested for driving without a license, “a crime for which no evidence could be expected to be found in the vehicle.”[127] Therefore, because the majority in Gant did not address a single, additional circumstance for clarification, and further failed to clearly define the “reasonable to believe” standard, its future impact could be both tentative and problematic.[128]

As an illustration of lingering challenges, in a DUI case decided less than two months post-Gant, the court expressed its hesitancy to construe Gant to mean that that particular traffic offense could never justify a search, as further evidence of intoxication could be present in the vehicle.[129] That Court declined to rule on the likelihood of discovering evidence related to this sort of crime, instead relying on the good faith exception to the exclusionary rule in allowing the evidence.[130] Although one could make the argument that further evidence of alcohol in the vehicle satisfies the requisite likelihood, there exists a greater possibility that the driver was intoxicated before even entering the vehicle, effectively nullifying any reasonable belief that a search would produce evidence related to the crime.[131] Undoubtedly, the DUI scenario is just one of many situations where the crime for arrest is tenuously linked to an evidentiary search.[132] Essentially, the question becomes, “With what crime does one reasonably expect accompanying evidence?”

The current circuit court split regarding the proper standard for “reasonable belief” further intensifies the bewilderment.[133] While the Ninth Circuit equates it with probable cause,[134] a majority of the circuits hold that a lesser standard applies.[135] In United States v. Pruitt, the Sixth Circuit avoids any flowery language by stating that “common sense factors”[136] and a “totality of the circumstances”[137] will lead to a reasonable belief. Nevertheless, even in context, this language is just as aloof and problematic as the standard it seeks to clarify. Acknowledging that the probable cause standard is also incapable of precise definition,[138] many circuits are reluctant to link the two into a common classification.[139] In fact, the nebulousness of the standard was borne out by the Pruitt Court that ruled that even an uncorroborated, anonymous tip stating that the defendant had drugs in the house was enough to satisfy the “reasonable belief” standard for a search.[140] Ultimately, the considerable uncertainty surrounding this standard will culminate in Gant’s increasingly divergent application amongst lower courts, thereby making probable continuous case-by-case review—rather than having established a bright-line rule—by the Supreme Court.

Another central item the Gant majority neglected to vigorously defend is that the primary step for any search must be the obtainment of a search warrant. As reiterated by Justice Douglas in McDonald v. United States, “[w]e cannot allow the constitutional barrier that protects the privacy of the individual to be hurdled so easily.”[141] Notably, requiring authorities to utilize the proper, lawful procedure of obtaining a search warrant minimizes the risk that citizens will distrust the government.[142] Although normally associated with homes as opposed to vehicles, current warrant procedures and technology enables the production of a search warrant within minutes, if necessary.[143] Thus, the fact that there is adequate, timely opportunity to procure a search warrant becomes very significant.[144] It is a travesty when law enforcement officers search by unlawful means then go to the courts asking that the warrantless search be sanctioned.[145] A stricter standard whereby officers “must secure and use search warrants wherever reasonably practicable”[146] would alleviate the incessant reliance and confusing application surrounding this Fourth Amendment exception.

Recognizing the very purpose behind the exceptions, there are indeed many situations that permit an officer to conduct a warrantless search when it would be unfeasible to obtain a search warrant.[147] The very establishment of the search incident to arrest exception was to protect officers from exacting case-by-case determinations at the scene of arrest.[148] However, the “reasonable to believe” standard highlighted in Gant will cause the muddling of what constitutes compulsory searches. As a result of Gant’s surprisingly cavalier hesitation to provide perspective on this doctrine, the course of law could quickly find itself back in pre-Gant befuddlement.[149] The broad rights bestowed upon law enforcement by the Court’s failure to articulate a limit on the exception has effectively established a search as an ancillary benefit of the arrest.[150] Without prompt guidance by the Supreme Court any benefits bestowed by Gant may quickly become just another wistful, unrealized constitutional Fourth Amendment protection.

C. While the Interest Balancing Employed by the Court is Commendable,

Diligent Law Enforcement Guidelines and Procedures are Necessary

to Ensure Genuine Efficacy

While the “reasonable to believe” standard is articulated in the Court’s second holding,[151] the first section of the Gant Court’s two-part rule manages to achieve a healthy balance between police safety and citizens’ rights.[152] Ruling that a vehicle search can occur, “only if the arrestee is within reaching distance of the passenger compartment at the time of the search,” the majority respects the principles behind the exception.[153] Although the issue in Gant was certainly not one of first impression,[154] the history behind Belton and its progeny essentially concerned the permissible scope of a search, not whether police may conduct a search “at all once the scene is secure.”[155] Nearly forty years ago, Chimel laid down the foundation of officer safety and evidence preservation in justifying a warrantless search.[156] Even Belton, recognizing the possibility of an expansive and unrestrained interpretation, clarified that its holding “in no way alters the fundamental principles” behind the search incident to arrest exception in Chimel.[157] Thus, Gant aptly recognized that absent a realistic possibility of an arrestee reaching the vehicle, nothing in Chimel justifies a search and therefore its rule cannot apply.[158] Consequently, the Court does not create a broad departure from historical policy, as the dissent suggests.[159] The Justices concerned with officer safety in Belton and Thornton reach the exact same conclusion here.[160]

It is the facts of Gant that drive the decision. Because the officers’ well being was clearly not at risk, as it was in Belton and Thornton,[161] the petitioners’ argument that law enforcement interests outweigh an arrestee’s limited privacy interest in his vehicle is moot.[162] A broad construction of Belton is therefore unnecessary, as a vehicle search without the justification of officer safety defeats the rationale for the exception, while only furthering police entitlement.[163] In fact, pre-Gant Fourth Amendment jurisprudence was in such a distorted state that circuit interpretation was distressingly clumsy.[164] This was evident in a case where the Ninth Circuit court held that a search conducted thirty minutes after securing the arrestee was unconstitutional.[165] That same court, however, upheld as constitutional a search under similar circumstances conducted fifteen minutes after arrest.[166] Attempting to find the justification behind how one ostensibly loses Fourth Amendment constitutional rights in a single fifteen-minute window is quite perplexing. Therefore, Gant favorably influences the law by re-establishing the justifications for the exception, while narrowing the misplaced generalization of Belton.[167]

Productively balancing the concerns of police officer safety with the countervailing privacy interests of motorists is a praiseworthy accomplishment created by the Court.[168] Placing an arrestee in handcuffs and in the back of a police car entirely reduces any threat to officer safety, and further eliminates the very justification for the exception.[169] The ruling does not require an officer to entertain an “infeasible decision-making process” or “withstand potential dangers.”[170] Therefore, Gant does not negatively affect officer safety, as basic police training instructs officers to place arrestees in handcuffs before a search begins.[171] Accordingly, it follows that a scene would ultimately be secure before a search even commences. Gant therefore seeks to establish a delineated boundary and a less intrusive way by which to ensure officer safety.[172]

Contrary to judicial-wide impression, bright-line rules are not always readily adhered to in the law enforcement community.[173] As one scholar notes, the Belton rule created the risk that “police will make custodial arrests which they otherwise would not make as a cover for a search which the Fourth Amendment otherwise prohibits.”[174] While the reasoning behind Belton was clear—protecting the police from making split second decisions in life threatening situations—it may not have been based on the true motivation in practice.[175] Although Gant attempts to close this antiquated door that Belton left open, serious risks remain. Gant’s impact could create a “perverse incentive for an arresting officer to prolong the period in which [the arrestee] could pose a danger,” in order to circumvent this rule.[176] Because police officers are motivated to gather evidence,[177] and because of their nearly three-decade ability to automatically do so upon arrest,[178] some may leave arrestees uncuffed near the scene in order for the Chimel exception to apply.[179] In practice, though, even overly zealous police officers would likely not be so reckless to needlessly jeopardize their own safety for the sake of securing potential criminal evidence.[180] Clearly, “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.”[181] Ultimately, the solution to this and other conceivable issues caused by Gant’s ambiguity is the responsibility of law enforcement departments nationwide. Because Supreme Court clarification of Gant’s unanswered questions, such as what constitutes ‘reasonable belief,’ is not on the immediate horizon, effective and enforceable guidelines autonomously implemented by law enforcement are necessary for the benefit of both police and society.[182]

Gant’s departure from a supposed bright-line rule, followed by the establishment of a dubious two-part-rule, raises valid concerns surrounding its impact on future judicial rulings.[183] It is also reasonable to further suppose that only straightforward rules that place absolute restrictions on police judgment will generate widespread officer compliance with a certain standard.[184] However, the Supreme Court cannot accomplish this task independently. That is why law enforcement should employ and execute additional standardized rules in order to provide necessary guidance and ensure constitutional guarantees.[185] This is essential not only to deter the opportunity for police misconduct, but also to alleviate the greater aliments of the criminal justice system as a whole.[186] One cannot expect the Court to instruct law enforcement on the proper procedures in every given circumstance.[187] However, one should expect the Court to preserve the principles of officer safety while not exceeding constitutional boundaries, as Gant so gallantly attempted.

The crucial need for law enforcement standards and teachings is exemplified in Whren v. United States.[188] When policemen patrolling a D.C. neighborhood noticed a truck waiting at a stop sign for an “unusually long time,” they became “suspicious” and requested the occupants to pull over. [189] After spotting what appeared to be crack cocaine in the vehicle, the police placed both men under arrest.[190] At trial, the defendants moved to suppress the evidence, arguing that the officers’ motivation for approaching the vehicle was pre-textual—without reasonable suspicion—as the defendants were African American.[191] It is what the Court asserts next that is most interesting: “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”[192] Thus, any biased reasons the police had for making the stop were irrelevant. As evidenced by the Court’s clear disinterest in remedying this societal inequity,[193] it is the responsibility of police departments to implement autonomous broad policy review.[194]

Herein lies the problem. Because of the courts’ control in the Fourth Amendment arena creating a “mass of contradictions and obscurities,”[195] police departments are without incentives to employ rulemaking and are actually discouraged from promulgating regulations.[196] If law enforcement were to develop a new set of procedures governing the meaning behind ‘reason to believe, or the method by which officers are to routinely secure arrestees, the courts could easily and inevitably rule such procedures unconstitutional. As a result, the combination of judicial embellishment and law enforcement ambivalence stymies the future of Gant and Fourth Amendment restoration altogether.[197]

Understandably, though, the fundamental character underpinning the task confronting law enforcement will not change.[198] Likewise, the Court’s struggle with Fourth Amendment interpretation has been, and will remain, a long-lasting crusade.[199] Without independent assessment, the threat of either unintentional legal misinterpretation or conscious pre-textual stops will continue.[200] As one scholar notes: “[T]he ‘penalty’ for police officer misconduct is suppression of evidence, which often renders a case unprosecutable, thus benefiting the criminal defendant while simultaneously failing to penalize the law-breaking police officer.”[201] Again, this is not to suggest that police officers operate under the same delinquency as the criminals they apprehend. In fact, noting the “special relationship between the community policed and a policeman,”[202] the Michigan Supreme Court held as constitutional an ordinance that required Detroit’s officers to reside in the city.[203] That realistic observation correctly assumes that police officers have a sincere interest to promote safety and tolerance where they reside. Notwithstanding the obvious confusion surrounding recent Fourth Amendment rulings, it is in the best interest of communities for their police officers to subscribe to lawful, standardized guidelines and procedures.[204]

IV. Conclusion

Prior to the Court’s decision in Gant, Fourth Amendment jurisprudence was in a state of muddled, silent chaos.[205] Supreme Court precedent had been stretched beyond its “breaking point.”[206] In an effort to resolve unanswered questions surrounding the search incident to arrest exception the Court accepted Gant for review.[207] By leaving the existing exceptions to the Fourth Amendment requirement intact, the Court did not handcuff law enforcement into overly stringent constraints.[208] Instead, police officers have wide discretion in their creative selection of alternative exceptions in rationalizing further searches.[209] Gant presented the Court with an opportunity to establish a “bright-line” rule in order to secure the safeguards of the Fourth Amendment and provide guidance to police for conducting searches incident to arrests[210] Because the Court refused to take advantage of this occasion to clearly identify the required nexus between the crime underlying the arrest and the search, Gant’s holding only continues the uncertainty in this particular area of Fourth Amendment jurisprudence and policing.[211] Further, because the opinion failed to decisively rule on the current split of opinions in circuit court interpretation of “reasonable to believe,” Gant will certainly create future judicial confusion and irresolution.[212] Finally, because the opinion upheld the twin-rationales of Chimel the Court valiantly maintained the foremost importance of police officer safety and preservation of evidence.[213] However, Gant requires a much more committed and earnest stance if the Court is sincerely determined to establish the truly essential limits of the Fourth Amendment.[214] Still, further, law enforcement departments nationwide must implement effective and enforceable procedural guidelines if Gant’s intended objective is to be realized.[215] As noted by Professor Erik Luna, without immediate measures, each new Fourth Amendment case will be “more duct tape on the Amendment’s frame and a step closer to the junkyard.”[216]

While the Court did recognize the reckless abandonment of citizens’ rights preceding Gant, the holding stopped short of providing a required degree of certainty. Further, a more pragmatic accord with local police departments is necessary to safeguard the constitutional freedoms of society.[217] As one scholar noted in the years leading up to Gant: “Current Fourth Amendment law conditions the use of the primary mode of personal transportation in this country on liability to arbitrary arrest and search.”[218] Will Gant successfully resolve this dilemma, or will it be just another speed bump?


* J.D. candidate, May 2011, Gonzaga University School of Law. I thank the Law Review editorial board and staff for their salient contributions and tenacious work ethic. I am extremely grateful to my fiancée for tolerating my fanatical ramblings whenever she would listen, and to my father, whose profound inspiration made this, and much else, possible.

[1]. See Arizona v. Gant, 129 S. Ct. 1710, 1728 (2009) (Breyer, J., dissenting) (discussing the significant extent of reliance on this precedent).

[2]. See Petitioner’s Brief on the Merits at 20, Gant, 129 S. Ct. 1710 (No. 07-542), 2008 WL 2066112 (citing Michigan v. Long, 463 U.S. 1032, 1049 (1983)).

[3]. U.S. Const. amend. IV. The amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[4]. See 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.1 (4th ed. 2004) (characterizing the Fourth Amendment as “both the virtue of brevity and the vice of ambiguity”).

[5]. See Katz v. United States, 389 U.S. 347, 357 (1967); see also South Dakota v. Opperman, 428 U.S. 364, 382 (1976) (Powell, J., concurring) (recognizing that an inventory search is one of the well established exceptions to the Fourth Amendment warrant requirement).

[6]. See, e.g., United States v. Robinson, 414 U.S. 218, 235 (1973); Chimel v. California, 395 U.S. 752, 763 (1969) (identifying officer safety and destruction of evidence as reasons for the exception).

[7]. See Gant, 129 S. Ct. at 1715; but see id. at 1726 (Alito, J., dissenting) (suggesting that the decision will do nothing more than “confuse law enforcement officers and judges for some time to come”).

[8]. See New York v. Belton, 453 U.S. 454, 457 (1981) (opining that lawful arrest alone establishes the right to conduct a search incident to arrest, even absent the Chimel rationales).

[9]. See Gant, 129 S. Ct. at 1714 (majority opinion authored by Stevens, J., in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined).

[10]. Id. at 1719 (citing Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)).

[11]. See Gant, 129 S.Ct. at 1716 (construing Chimel and noting that when an arrestee is locked in a squad car, those exceptions are absent and the search is therefore unjustified).

[12]. See id. at 1721 (citing the safety exception found in Michigan v. Long, 463 U.S. 1032, 1036 (1983), which upheld the constitutionality of an officer’s search supported by a reasonable belief that a vehicle occupant could gain immediate control of a weapon).

[13]. See, e.g., Gant, 129 S.Ct. at 1722 (explaining that the resulting rule of law does not affect the other established search-without-warrant exceptions).

[14]. Compare Thornton, 541 U.S. at 631 (Scalia, J., concurring) (“[I]f we are going to continue to allow Belton searches … we should at least be honest about why we are doing so.”), with Petitioner’s Brief, supra note 2, at 32 (arguing that a case-by-case determination only furthers uncertainty as to the Fourth Amendment’s boundaries).

[15]. See supra note 61 and accompanying text.

[16]. See Arizona v. Dean, 76 P.3d 429, 433 (Ariz. 2003) (citing Chimel, 395 U.S. 752, 762 (1969)).

[17]. See Gant, 129 S. Ct. at 1716; see also Trupiano v. United States, 334 U.S. 699, 705 (1948) (“[T]he framers of the Fourth Amendment required adherence to judicial processes wherever possible.”).

[18]. See Gant, 129 S. Ct. at 1724 (Scalia, J., concurring) (foreseeing this standard creating ample room for exploitation).

[19]. David M. Silk, When Bright Lines Break Down: Limiting New York v. Belton, 136 U. Pa. L. Rev. 281, 281 (1988).

[20]. See Chimel, 395 U.S. at 755.

[21]. 232 U.S. 383, 392 (1914); see also Silk, supra note 19, at 282 (noting how the Supreme Court has been indecisive about the justification for the exception).

[22]. See Weeks, 232 U.S. at 392 (declaring that it is the “right … of the Government, always recognized under English and American Law, to search the person of the accused when legally arrested”).

[23]. 267 U.S. 132, 155-56 (1925).

[24]. See Catherine A. Shepard, Search and Seizure: From Carroll to Ross, The Odyssey of the Automobile Exception, 32 Cath. U. L. Rev. 221, 225 (1983) (citing Carroll, 267 U.S. at 149).

[25]. Carroll, 267 U.S. at 158.

[26]. See id.

[27]. Id.

[28]. The case was United States v. Rabinowitz, 339 U.S. 56 (1950).

[29]. See id. at 59 (proposing that it was unreasonable not to obtain a search warrant when available).

[30]. Id. at 66. But see Maryland v. Buie, 494 U.S. 325, 331 (1990) (majority opinion) (noting that searches of the home are “generally not reasonable without a warrant issued on probable cause”).

[31]. See Rabinowitz, 339 U.S. at 61 (noting that in this case the places included the desk and safe).

[32]. See Shepard, supra note 24, at 234 (citing Chimel v. California, 395 U.S. 752, 753 (1969)) (noting the irony behind the fact that Chimel involved the search of a house, not a vehicle).

[33]. See Brief of Respondent at 12, Arizona v. Gant, 129 S. Ct. 1710 (No. 07-542), 2008 WL 2817675.

[34]. Chimel, 395 U.S. at 764 (1969).

[35]. See id. at 763; see also United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987) (“Chimel does not allow the officers to presume that an arrestee is superhuman.”).

[36]. Brief of Respondent, supra note 33, at 15 (permitting a warrantless search only if “the exigencies of the situation made that course imperative” (quoting Chimel, 395 U.S. at 761) (internal quotation marks omitted)).

[37]. See Brief of Respondent, supra note 33, at 15

[38]. See Chimel, 295 U.S. at 768. Contra United States v. Cotnam, 88 F.3d 487, 495 (7th Cir.1996) (noting that officers arresting suspect in a small motel room can lawfully search the entire room for weapons as part of a search incident to arrest).

[39]. 453 U.S. 454 (1981).

[40]. Id. at 456.

[41]. Id. at 459-60.

[42]. Id. at 460 (noting that the search may include any area within the passenger compartment).

[43]. See Silk, supra note 19, at 297 (also inquiring in what proximity must the suspect be with the car).

[44]. See 541 U.S. 615, 622 (2004) (ruling out the contention that respondent was not a “recent occupant” merely because respondent was outside of the vehicle during officer’s initial contact).

[45]. Id. at 620-21.

[46]. See id.

[47]. See id. at 629 (Scalia, J., concurring) (“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.”).

[48]. Brief of Respondent, supra note 33, at 19 (citing Thornton, 541 U.S. at 622).

[49]. See Jason Lewis, To Serve and Protect: Thornton v. United States and the Newly Anemic Fourth Amendment, 56 Mercer L. Rev. 1471, 1478 (2005) (citing Thornton, 124 S. Ct. at 2127) (noting that an arrestee being outside the vehicle does not make an attack less likely).

[50]. See Thornton, 541 U.S. at 632 (Scalia, J., concurring) (suggesting that a warrantless search should be lawful when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle”).

[51]. See United States v. Osife, 398 F.3d 1143, 1146-48 (9th Cir. 2005) (mockingly noting that evidence of the crime of public urination was “surely” not going to be found in Osife’s pickup truck, but nonetheless concluding that Thornton permitted such a search).

[52]. See United States v. Hrasky, 453 F.3d 1099, 1100 (8th Cir. 2006) (holding that a vehicle search that took place approximately one hour after the vehicle was stopped qualified as a search incident to arrest).

[53]. See Edwin J. Butterfoss, Bright Line Breaking Point: Embracing Justice Scalia’s Call for the Supreme Court to Abandon an Unreasonable Approach to Fourth Amendment Search and Seizure Law, 82 Tul. L. Rev. 77, 81 (2007) (maintaining that the reasonableness approach suggested by Justice Scalia in Thornton will produce greater protection from unreasonable searches and seizures).

[54]. Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009).

[55]. See Petitioner’s Brief, supra note 2, at 13.

[56]. See Brief of Respondent, supra note 33, at 11 (declaring that these searches are only valid under the twin rationales of Chimel).

[57]. See, e.g., United States v. Humphrey, 208 F.3d 1190, 1202 (10th Cir. 2000) (stating that Belton’s emphasis on creating a bright-line rule annuls the actual ability of an arrestee to reach evidence or weapons in his vehicle).

[58]. See infra Part III.A.

[59]. See Gant, 129 S. Ct. at 1721 (noting a few of the other established exceptions).

[60]. See infra Part III.B.

[61]. See Gant, 129 S. Ct. at 1719. Justice Stevens’s majority opinion expressed the standard for discovering evidence relevant to the arrest as whether evidence “might” be found, and one paragraph later as the “likelihood” that it would be found. Id.

[62]. See generally United States v. McLaughlin, 170 F.3d 889, 894 (9th Cir. 1999) (Trott, J., concurring) (arguing that Belton has warped the law by allowing “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”).

[63]. See infra Part III.C.

[64]. See Gant, 129 S. Ct. at 1730 (Alito, J., dissenting) (citing United States v. Abdul-Saboor, 85 F.3d 664 (D.C. Cir. 1996)).

[65]. See Dru Stevenson, Entrapment and the Problem of Deterring Police Misconduct, 37 Conn. L. Rev. 67, 146 (2004) (suggesting that institutional deterrence through officer training and supervision is the most efficient method of eliminating police misconduct).

[66]. 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.3 (4th ed. 2004) (quoting Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring)).

[67]. See supra notes 21-22 and accompanying text.

[68]. See, e.g., Katz v. United States, 389 U.S. 347, 357 (1967); McDonald v. United States, 335 U.S. 451, 455 (1948).

[69]. See Gant, 129 S. Ct. at 1726 (Alito, J., dissenting) (avowing that the rule may “endanger arresting officers and … cause the suppression of evidence”).

[70]. See Emile F. Short, Annotation, Lawfulness of “Inventory Search” of Motor Vehicle Impounded by Police, 48 A.L.R.3d 537 (1973) (citing United States v. Andrews, 22 F.3d 1328 (5th Cir. 1994) (holding an inventory search of a vehicle lawful when done pursuant to the vehicle’s impoundment by police and following a lawful arrest of an occupant of the vehicle)).

[71]. 428 U.S. 364, 373 (1976).

[72]. Id. at 368.

[73]. Id. at 368-69.

[74]. Id. at 369 (citing Cooper v. California, 386 U.S. 58, 61-62 (1967) (upholding the validity of a inventory search after the car had been impounded)).

[75]. See United States v. Johns, 469 U.S. 478, 484 (1985) (explaining that there is no requirement that a warrantless inventory search of a vehicle transpires simultaneously with its seizure).

[76]. See Brief for Petitioners, supra note 2, at 27.

[77]. Compare South Dakota v. Opperman, 428 U.S. 364, 376 (1976) (allowing the introduction of evidence), with United States v. Caseres, 533 F.3d 1064, 1075 (9th Cir. 2008) (stating that because there was no community caretaking rationale for impounding the car the inventory search was unconstitutional).

[78]. Katz v. United States, 389 U.S. 347, 357 (1967) (electronic surveillance and recording of defendant while in a public telephone booth did not fall under any of the exceptions to the warrant requirement and thus violated the privacy upon which defendant justifiably relied).

[79]. See Silk, supra note 19, at 292.

[80]. In a seminal case regarding inventory searches, the court held that the page-by-page searching of a notebook was constitutional to protect the city from claims of lost property. United States v. Andrews, 22 F.3d 1328, 1335 (5th Cir. 1994).

[81]. See id. at 1336 (recognizing a potential for abuse in the justification of inventory searches, the court stressed that “policies must be adopted which sufficiently limit the discretion of law enforcement officers to prevent inventory searches from becoming evidentiary searches”).

[82]. United States v. Foots, 340 F. App’x 969, 973-74 (5th Cir. 2009).

[83]. See id. (deeming the search constitutional because it was conducted pursuant to department policy).

[84]. See Florida v. Wells, 495 U.S. 1, 4 (1990) (noting that these delicate searches are “based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence”).

[85]. Id.

[86]. Id. But see Colorado v. Bertine, 479 U.S. 367, 374, n.6 (1987) (holding an inventory search constitutional only because policy mandated opening the containers).

[87]. Wells, 495 U.S. at 5 (Brennan, J., concurring).

[88]. Id. at 4 (majority opinion).

[89]. See, e.g., Bertine, 479 U.S. at 375; Illinois v. Lafayette, 462 U.S. 640, 643-44 (1983) (noting the immateriality of a warrant, or any probable cause, by ruling inventory searches reasonable, the Court further established that the existence of a less intrusive method was irrelevant).

[90]. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

[91]. See id. at 248.

[92]. See United States v. Rivera, 867 F.2d 1261, 1265-66 (10th Cir. 1989).

[93]. Id. at 1262.

[94]. Id.

[95]. Id.

[96]. Id.

[97]. See Chambers v. Maroney, 399 U.S. 42, 47 n.6 (1970) (“Here as will be true in many cases, the circumstances justifying the arrest are also those furnishing probable cause for the search.”).

[98]. See id.

[99]. United States v. Robinson, 414 U.S. 218, 235 (1973).

[100]. See Chambers, 399 U.S. at 47 n.6 (noting that when there is probable cause to suspect a vehicle contains proof of criminal activity, a search need not be justified by the precondition of arrest).

[101]. 456 U.S. 798, 808 (1982).

[102]. Id. at 828 (Marshall, J., dissenting) (“The new rule adopted by the Court today is completely incompatible with established Fourth Amendment principles, and takes a first step toward an unprecedented ’probable cause’ exception to the warrant requirement.”).

[103]. See David A. Sklansky, The Private Police, 46 UCLA L. Rev. 1165, 1184 (1999) (noting that “the vast majority of arrests are made without a warrant”).

[104]. See generally Note, Warrantless Searches and Seizures of Automobiles, 87 Harv. L. Rev. 835, 849 (1974) (suggesting the benevolent purpose of public safety begetting inventory searches).

[105]. See New York v. Belton, 453 U.S. 454, 460 (1981) (“[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”)

[106]. See United States v. Cortez, 449 U.S. 411, 418 (1981) (noting the importance of an officer’s special training and experience when conducting a search based on reasonable suspicion of criminal activity).

[107]. See Donald A. Dripps, The Fourth Amendment and the Fallacy of Composition: Determinacy Versus Legitimacy in a Regime of Bright-Line Rules, 74 Miss. L.J. 341, 356 (2004).

[108]. See id. (arguing that the Court’s historical search for clarity in its Fourth Amendment jurisprudence was at the expense of legitimacy).

[109]. See Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring) (suggesting it is necessary to “limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle”).

[110]. See Dripps, supra note 107, at 404 (noting concern surrounding this fairly vague standard).

[111]. Id. at 420-21.

[112]. E.g., Chimel v. California, 395 U.S. 752, 764 (1969).

[113]. See Butterfoss, supra note 53, at 107.

[114]. See id.

[115]. See id. at 107 & n.191 (mentioning driving under the influence as one possible exception).

[116]. See, e.g., Maryland v. Garrison, 480 U.S. 79, 84 (1987) (restating that the Fourth Amendment was intended to prohibit widespread exploratory searches).

[117]. See id. at 84-85.

[118]. See Thornton v. United States, 541 U.S. 615, 627 (2004) (Scalia, J., concurring) (emphasis added).

[119]. Chimel v. California, 395 U.S. 752, 761 (1969) (“Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals … [i]t was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law.” (quoting McDonald v. United States, 335 U.S. 451, 455-56 (1948)) (internal quotation marks omitted)).

[120]. Thornton, 541 U.S. at 628-29 (Scalia, J., concurring) (citing United States v. McLaughlin, 170 F.3d 889, 894 (9th Cir. 1999) (Trott, J., concurring)).

[121]. See Arizona v. Gant, 129 S. Ct. 1710, 1729 (2009) (Alito, J., dissenting) (stating the problems that Belton created will pale in comparison to those that the new two-part rule will create).

[122]. Id. at 1719 (majority opinion).

[123]. Id. at 1725 (Scalia, J., concurring) (conceding that he does not agree entirely with either the majority or the dissent).

[124]. Less than two months after Gant, courts are already recognizing its difficult application. See, e.g., United States v. Grote, 629 F.Supp.2d 1201, 1203 n.2 (E.D. Wash. 2009) (“There is a circuit court split because the Supreme Court has not defined what ‘reasonable to believe’ means and it did not do so in Gant.”).

[125]. See id.

[126]. New York v Belton, 453 U.S. 454, 456 (1981); Thornton v. United States, 541 U.S. 615, 618 (2004).

[127]. Gant, 129 S. Ct. at 1725 (Scalia, J., concurring) (stating that because of this fact he would hold the search unlawful).

[128]. See LaFave, supra note 66, § 6.1(a) (“Just what [the ‘reason to believe’ standard] means continues to be a matter of considerable uncertainty….” (footnotes omitted)).

[129]. Grote, 629 F.Supp.2d at 1204, 1206 (denying the suppression of evidence because of the officer’s “good faith in conducting the search”).

[130]. Id. at 1206.

[131]. See id. at 1204 (“This court is equally hesitant to hold that a lawful arrest for DUI will always justify a search of a vehicle incident to arrest on the assumption it will always be reasonable to believe that evidence of DUI will be found in the vehicle.”).

[132]. See Gant, 129 S. Ct. at 1718 (illustrating the difficulty of Fourth Amendment interpretation, even for those frequently charged with the task).

[133]. See United States v. Pruitt, 458 F.3d 477, 483 (6th Cir. 2006) (recognizing the split, the Sixth Circuit ruled that a “consideration of common sense factors and the totality of the circumstances is sufficient to formulate a reasonable belief”).

[134]. See, e.g., United States v. Gorman, 314 F.3d 1105, 1112 (9th Cir. 2002) (concluding that the “reason to believe” standard embodies probable cause).

[135]. See, e.g., Pruitt, 458 F.3d at 482 (defining the standard as “a lesser reasonable belief standard, and not probable cause”); United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005) (holding a search valid based on reasonable belief and “falling short of probable cause to believe”).

[136]. Pruitt, 458 F.3d at 483 (declining to adopt the view of the Ninth Circuit because it disregards the majority of its sister circuit’s holdings, among other reasons).

[137]. Id.

[138]. See Ybarra v. Illinois, 444 U.S. 85, 90-91 (1979) (equating probable cause with reasonable belief).

[139]. But see id.

[140]. Pruitt, 458 F.3d at 482.

[141]. McDonald v. United States, 335 U.S. 451, 455 (1948).

[142]. See LaFave, supra note 4, § 1.1(f).

[143]. See Holly Wells, State v. Gant: Departing from the Bright Line Belton Rule in Automobile Searches Incident to Arrest, 49 Ariz. L. Rev. 1033, 1039 (2007) (citing State v. Gant, 162 P.3d 640, 645 (Ariz. 2007)).

[144]. See United States v. Rabinowitz, 339 U.S. 56, 84 (1950) (Frankfurter, J., dissenting) (noting the importance of the “presence or absence” of opportunity to secure a warrant).

[145]. See LaFave, supra note 4, § 1.1(f) (citing Weeks v. United States, 232 U.S. 383, 392 (1914)).

[146]. Trupiano v. United States, 334 U.S. 699, 705 (1948) (citations omitted).

[147]. This is the basis behind the exception for the twin-rationales of officer safety and preservation of evidence in Chimel. Chimel v. California, 395 U.S. 752, 763 (1969).

[148]. See id.

[149]. See supra note 129 and accompanying text.

[150]. See Coolidge v. New Hampshire, 403 U.S. 443, 454 (1971) (noting how the “slight deviations from legal modes of procedure” could allow unconstitutional practices to creep in).

[151]. Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009).

[152]. See id. at 1720 (arguing that the dissent “undervalues” a motorist’s privacy concerns).

[153]. See New York v. Belton, 453 U.S. 454, 460 n.3 (1981) (explaining that the holding “in no way alters the fundamental principles established in the Chimel case regarding [officer safety and preservation of evidence]”).

[154]. See Gant, 129 S. Ct. at 1726 (Breyer, J., dissenting).

[155]. Id. at 1715 (majority opinion) (quoting State v. Gant, 162 P.3d 640, 643 (2007) (noting that this is the threshold question)).

[156]. See Chimel v. California, 395 U.S. 752, 763 (1969).

[157]. Belton, 453 U.S. at 460 n.3.

[158]. See Gant, 129 S. Ct. at 1717; see also Preston v. United States, 376 U.S. 364, 368 (1964).

[159]. See Gant, 129 S. Ct. at 1727-28 (Alito, J., dissenting) (implying that the Court has abandoned significant precedent).

[160]. See id. at 1722 & n.10 (majority opinion).

[161]. See id. at 1722 (noting the prevalent safety interests that drove those decisions).

[162]. See id. (“[I]t is hard to imagine two cases that are factually more distinct, as Belton involved one officer confronted by four unsecured arrestees suspected of committing a drug offense….”).

[163]. See id. at 1721 (noting that a broad reading of Belton is unnecessary).

[164]. Compare United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987) (ruling a search thirty minutes after arrest unconstitutional), with United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006) (holding a search fifteen minutes after arrest constitutional).

[165]. Vasey, 834 F.2d at 787.

[166]. Weaver, 433 F.3d at 1106.

[167]. Cf. Brief of Respondent, supra note 33, at 9 (noting that the supposed bright-line rule has actually been murky).

[168]. Gant, 129 S. Ct. at 1720 (noting the “serious and recurring threat to the privacy of countless individuals”).

[169]. See id. at 1724 (Scalia, J., concurring).

[170]. Cf. New York v. Belton, 453 U.S. 454, 460 (1981) (attempting to discern what the arrestee could have reached had he still been in the car).

[171]. See Myron Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 Wis. L. Rev. 657, 665 (2002) (concluding that generally police are taught to restrain subjects before beginning a search).

[172]. See Gant, 129 S. Ct. at 1724 (Scalia, J., concurring).

[173]. See Silk, supra note 19, at 303 (noting an evisceration of the Belton rule through some courts’ inclusion of non-contemporaneous searches).

[174]. LaFave, supra note 66, at § 5.2(e).

[175]. See Gant, 129 S. Ct. at 1720 (“A rule that gives police the power to conduct such a search [when the scene is secure] … creates a serious and recurring threat to the privacy of countless individuals.”).

[176]. See id. at 1730 (Alito, J., dissenting) (quoting United States v. Abdul-Saboor, 85 F.3d 664, 669 (D.C. Cir. 1996)).

[177]. See Thornton v. United States, 541 U.S. 615, 629 (2004) (Scalia, J., concurring).

[178]. See New York v. Belton, 453 U.S. 454, 460 (1981).

[179]. See Thornton, 541 U.S. at 627 (Scalia, J., concurring) (“[I]f an officer leaves a suspect unrestrained nearby just to manufacture authority to search, one could argue that the search is unreasonable precisely because … of the officer’s failure to follow sensible procedures.”).

[180]. See id.

[181]. Mincey v. Arizona, 437 U.S. 385, 393 (1978).

[182]. See Dripps, supra note 107, at 420 (arguing for the employment of a “model code of police practices”).

[183]. Cf. Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind. L.J. 329, 344 (1973) (“Probable cause is a constitutional term, whose meaning the Supreme Court must elucidate.”).

[184]. See, e.g., Miranda v. Arizona, 384 U.S. 436, 445 (1966) (mandating that all law enforcement officers give the defendant “a full and effective warning of his rights at the outset of the interrogation process”).

[185]. See Silk, supra note 19, at 311 (arguing that the most effective rules are those that result from careful internal deliberation within police departments).

[186]. See Laurie L. Levenson, Police Corruption and New Models for Reform, 35 Suffolk U. L. Rev. 1, 3 (2001) (“In particular, police misconduct and corruption must be viewed as symptoms of greater ailments in both society and the organs of our criminal justice system. Unless the whole body is treated, one particular injury may be healed, but the body will remain diseased.”).

[187]. See Arkansas v. Sanders, 442 U.S. 753, 768 (1979) (Blackmun, J., dissenting) (“We are construing the Constitution, not writing a statute or a manual for law enforcement officers.”).

[188]. 517 U.S. 806 (1996).

[189]. Id. at 808-09.

[190]. Id.

[191]. Id. at 810.

[192]. Id. at 813.

[193]. See David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 Va. L. Rev. 1229, 1274-75 (2002) (noting that the Supreme Court “has shown no interest in requiring” police department rule-making).

[194]. See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev. 551, 671 (1997) (“[P]erhaps communities and police departments, prompted by the problems that beset them and the new philosophies that point in a different direction, might take up the task—an ongoing one—of better managing police discretion.”).

[195]. Craig M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 1468 (1985).

[196]. See Sklansky, supra note 193, at 1273 (“Progress toward guidelines for the exercise of police discretion has been sporadic, crisis-driven, and limited.”).

[197]. See Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 757 (1994) (frankly stating: “The Fourth Amendment today is an embarrassment.”).

[198]. Livingston, supra note 194, at 670 (“Policing, like judging, is a complex task, and the prospects and promise of the new policing reforms must at this juncture be deemed uncertain.”).

[199]. See id.

[200]. Even the pre-Belton Supreme Court recognized that police department rules “may well provide more valuable protection to the public at large than the deterrence flowing from the occasional exclusion of items of evidence in criminal trials.” United States v. Caceres, 440 U.S. 741, 755 (1979).

[201]. Carol A. Chase, Rampart: A Crying Need to Restore Police Accountability, 34 Loy. L.A. L. Rev. 767, 767 (2000).

[202]. Detroit Police Officers Ass’n v. City of Detroit, 190 N.W.2d 97, 98 (1971).

[203]. Id.

[204]. See Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 421 (1974) (Asserting that rule-making would limit the discretion of police officers and further “tend to tame the welter of police practices that now come before the courts for fourth amendment adjudication by preventing some of those practices from being used in the first place”).

[205]. See supra notes 44-48 and accompanying text.

[206]. Thornton v. United States, 541 U.S. 615, 625 (2004) (Scalia, J., concurring).

[207]. See Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009).

[208]. See id. at 1719.

[209]. Id. at 1719 n.4.

[210]. Id. at 1721.

[211]. See supra Part III.B; see also Gant, 129 S. Ct. at 1731.

[212]. See supra Part III.B

[213]. See supra Part III.C.

[214]. Gant, 129 S. Ct. at 1725-26 (Breyer, J., dissenting)

[215]. See Livingston, supra note 194, at 672 (“Perhaps some views from the bottom up—views that begin with the recognition that police departments will succeed or fail in their efforts to deal with local problems at the local level, in communities and in neighborhoods, where laws are passed and police policies are pursued—might be in order.”).

[216]. Erik G. Luna, Sovereignty and Suspicion, 48 Duke L.J. 787, 787-88 (1999).

[217]. See supra notes 65-66 and accompanying text.

[218]. Dripps, supra note 107, at 420.

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