IN CASE YOU THOUGHT IT WOULDN'T MAKE A DIFFERENCE

On April 21, in Arizona v. Gant, the Supreme Court significantly narrowed the scope of (the dissent says the majority actually overruled) New York v. Belton and limited the scope of automobile searches incident to arrest. Under Belton as it has mostly been applied, when someone who has been in a vehicle is arrested, police may search the entire passenger compartment as a matter of course. Typically, those searches, ostensibly to prevent the arrested person from getting to a weapon in the car or destroying evidence, occurred after the person was handcuffed and placed in locked squad car. Gant says the search incident to arrest rule should be limited to its purpose.

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

The change in the rule is dramatic. The practice may be something else.

The problem is another line of search cases growing from South Dakota v. Opperman which allow police who have arrested the driver of a car to conduct an inventory of whatever is in the car in order to . . . well, they aren't searching, they're just listing what's there so that when they release the car sometime after impounding it, nobody can ever say the cops stole anything from it. Of course, if they should happen to stumble across something illegal it's OK to use that because they weren't actually examining the contents of the car in hopes of finding the bad stuff. (And if you buy that, there's a well-known bridge in New York for which I can offer a really good selling price.)

So the assumption is that every search incident to arrest will be saved by also being an inventory search.

That may well happen, but not yet.

Juan Francisco Lopez was driving over 100 miles an hour on I-75 in Kentucky. Police stopped him for speeding, arrested him, put him in the back of their cruiser, and then searched his car where they turned up cocaine and a handgun. The trial court, relying on Belton, denied Lopez's suppression motion. But since Lopez was already safely in custody and away from his car, and since police could not expect to find evidence of reckless driving (which is what they arrested Lopez for) by searching his car, the 6th Circuit looked at Gant and reversed.

Of course, next time, they'll explain that the search was really an inventory. But, for now, Gant matters.