Volume 154, No. 180
12, September, 2008
Two Upcoming Cases Could
Have Profound Impact
As summer turns to fall, it is time to consider the upcoming 2008 term
of the U.S. Supreme Court.
The 2007 term was remarkable for the dearth of cases decided in the
area of constitutional criminal procedure. Of the court's 24 cases, fully
half dealt with either federal sentencing guidelines or the definitions of
federal felonies. Another seven decisions were concerned with
procedural issues. True, there were some blockbusters: District of
Columbia v. Heller, 128 S.Ct. 2783 (Second Amendment protects gun
ownership for self-defense in homes); Kennedy v. Louisiana, 128 S.Ct.
2641 (death penalty for child rapists violates Eighth Amendment);
Boumediene v. Bush, 128 S.Ct. 2229 (habeas corpus for alien detainees). But there was very little
that affected bread-and-butter issues in state criminal trials.
But this will change quickly. The Supreme Court will soon hear arguments in two Fourth
Amendment cases of substantial significance. Arizona v. Gant, No. 07-542, deals with the scope of
the search police may perform after arresting a recent occupant of a car. The other case not only
has the potential of further expanding the ''good faith exception'' of the Fourth Amendment's
exclusionary rule - it may question the exclusionary rule's very existence. Herring v. U.S., No. 07513.
First, some background on Gant. Whenever the police make an arrest, they have the right to make a
complete search of the person. U.S. v. Robinson , 414 U.S. 218 (1973). The rationale for this is twofold: protection of the police and the need to preserve evidence. This is a bright-line rule; in other
words, police have this authority regardless of whether either of these rationales actually applies to
the arrest at hand.
What about the area around the arrestee? The court has held that the police - again, both for its
protection and for the preservation of evidence - may automatically search the area within the
arrestee's ''immediate control.'' Chimel v. California, 395 U.S. 752 (1969). This is sometimes
referred to as the ''grabbing area.''
New York v. Belton, 453 U.S. 454 (1981), concerned a related issue: what was the area of
''immediate control'' when the arrestee was the occupant of an automobile? In a victory for police,
Belton held that the search of such an arrestee should include not only his person, but also the
entire passenger compartment of the car, including all containers therein. In other words, Belton
provided a very bright-line rule to define the Chimel ''grabbing area'' when a car occupant was
arrested.
Four years ago, the court expanded Belton by holding that the rule applied even when the police do
not first make contact with the arrestee until after he has left the vehicle. Thornton v. U.S. , 541 U.S.
615 (2004). So long as the arrestee had been a ''recent occupant'' of the vehicle, the officer may
search the passenger compartment (and all containers found there) as part of the search incident to
arrest.
So far, nothing but good news for the police. But Justice Antonin Scalia, in a concurrence in
Thornton joined by Justice Ruth Bader Ginsburg, added what was - for the police - a very
disquieting note. He took issue with the Belton/Thornton rationale that this kind of search was for
the protection of the police. He observed that this was a fiction, for police invariably handcuffed the
arrestee before searching the car, and therefore the arrestee no longer posed a danger. Scalia
challenged the court to admit that Belton/Thornton searches had nothing to do with officer safety,
and everything to do with searches for relevant evidence. Thus, he would allow a Belton/Thornton
search only if the police could establish that it was reasonable to believe in the particular case that
evidence relevant to the crime of arrest might be found in the vehicle.
Gant presents the court with an opportunity to adopt the Scalia/Ginsburg position. Rodney Gant
was the recent occupant of a vehicle who was arrested on an outstanding warrant for driving on a
suspended license. There was no possible evidence related to the crime that could have been found
in the car. Moreover, Gant was handcuffed and locked in the back of a patrol car while the search
occurred, so there was no issue of officer safety. However, the search of the car recovered
contraband that Gant is attempting to suppress.
Considering the interesting alliance of Scalia and Ginsburg on this issue, it appears that the court
may very well have granted review in order to adopt a narrower scope for Belton/Thornton
automobile searches.
As for Herring v. U.S. - the ''good faith exception'' case - again, some background is useful.
The Supreme Court made the Fourth Amendment exclusionary rule applicable to the states in Mapp
v. Ohio, 367 U.S. 643 (1961). But in U.S. v. Leon , 468 U.S. 897 (1984), the court for the first time
refused to suppress evidence used by the prosecution in its case-in-chief that was the fruit of a
Fourth Amendment violation. Leon essentially created three conditions precedent for applying the
exclusionary rule: 1) the misconduct must come from the police or its adjuncts; 2) exclusion of
evidence must result in appreciable deterrence of future police misconduct; and 3) the benefits of
evidence exclusion must outweigh the costs. Based on this, the Leon court refused to exclude
evidence recovered pursuant to a warrant issued without probable cause. The court held that there
was no police misconduct, since the police could reasonably rely on the decision of the judge who
approved the warrant. Similarly, the court subsequently held that there was no police misconduct
when police reasonably relied on the legislature's decision to promulgate a statute that
unconstitutionally allowed warrantless searches in certain regulated industries. Illinois v. Krull ,
480 U.S. 340 (1987).
In Arizona v. Evans, 514 U.S. 1 (1995), Evans was arrested during a traffic stop when an
outstanding warrant against him showed up on the officer's computer. The search revealed drugs,
but Evans filed a motion to suppress. Evans proved that the presence of the warrant in the
computer system was an error, and thus argued that the evidence should be suppressed. The
Supreme Court agreed with Evans that the arrest violated the Fourth Amendment, but found that
the police were not responsible for the erroneous listing of the warrant - a court clerk was. Finding
no police misconduct, it therefore refused to suppress the evidence.
Herring is similar to Evans with one major difference: here the mistaken information that there was
an outstanding warrant was provided by law enforcement - not court - personnel. The Supreme
Court agreed to review the case to determine whether Evans should nevertheless control.
The importance of Herring has less to do with the narrow issue presented than it does with the
broader issue of whether the Supreme Court is considering drastically curtailing - or even
abolishing - the exclusionary rule. In 2006, in the course of holding that the exclusionary rule would
not apply to evidence seized pursuant to a search of a home in which the police violated the
constitutionally-required ''knock and announce'' rule, Scalia's opinion for the majority seemed to
challenge the very existence of the exclusionary rule. Rather than referring to exclusion as the
general rule (subject to exceptions), the opinion turns the tables and states that ''suppression of
evidence ... has always been our last resort, not our first impulse.'' Hudson v. Michigan, 547 U.S. 586,
591 (2006). The opinion also notes that ''exclusion may not be premised on the mere fact that a
constitutional violation was a 'but-for' cause of obtaining evidence.'' At 592. Citing Hudson, Judge
Richard A. Posner of the 7th U.S. Circuit Court of Appeals has flatly stated that ''exclusionary rules
have fallen out of favor'' as courts are more willing to look to tort remedies. Samuel v. Frank, 525
F.3d 566, 570 (7th Cir. 2008). Thus, Herring is a case that should be carefully watched.
Both Gant and Herring will be argued on Tuesday, Oct. 7. The impact of these decisions could be
profound.