The Supreme Court's Recent Automobile Search Case:
The Culmination of a Doctrine Filled With Pretextual Reasoning

By SHERRY F. COLB
Wednesday, Jun. 02, 2004

Last week, in Thornton v. United States, the U.S. Supreme Court issued a ruling that further expands a police officer's authority to search a suspect "incident to arrest" - that is, as a component of a lawful arrest.

The decision represents an incremental modification to, rather than a radical departure from, existing precedent. Nonetheless, it -- and the precedents that led up to it -- exemplify a disturbing readiness on the part of the Court to stray from the rationales behind the law to achieve a desired outcome.

Such a tendency risks diminishing the Court's prestige, and that risk is more significant than anything at stake in a particular search-incident-to-arrest case.

Let us consider the evolution of the search incident to arrest doctrine as a case study in pretextual decision-making - culminating in the Court's recent decision in Thornton.

What is a Search Incident to Arrest?

First, a little background is in order. The Fourth Amendment guarantees the people a right to be secure against unreasonable searches and seizures. Over the years, this right has come to mean, among other things, that police officers ordinarily may not search a person or his private spaces unless the officer has probable cause to believe that a search would turn up evidence of crime.

As with virtually every rulein existence, though, there are exceptions to the probable cause requirement. One such exception is the search incident to a lawful arrest.

When lawfully arresting a suspect for a crime, the Court has said, a police officer may search the arrestee, as well as the area within the arrestee's control, without any basis for believing that such a search would be fruitful.

The original reason for the search-incident-to-arrest rule was to prevent the suspect from reaching for a weapon or attempting to destroy incriminating evidence.

And indeed, one can understand the need to search incident to arrest in the light of the incentives in play. In general, a person who is in the process of being arrested will be desperate to discard or conceal incriminating evidence and may also wish to use force to avoid arrest altogether. Police put themselves in danger every day, and they need to be equipped with the authority to neutralize some of that danger.


The Curious Evolution of the Search Incident to Arrest Doctrine


But the Court expanded the doctrine far beyond the justifications that gave rise to it in the first place: preventing the suspect from accessing weapons and evidence.

In United States v. Robinson, the Court held that a person arrested for driving while his license was revoked could be searched incident to arrest, even though the crime in question does not usually come with hidden evidence (assuming there is no diary containing the confession "Today I drove without a license again"), and is rarely associated with violence and weaponry.

These features of the case did not matter to the Court, however, because, the Justices said, the incentive to reach for a weapon and conceal evidence stems from the fact of arrest rather than from anything specific about a given suspect. If a weapon or evidence of a crime is within reach, the person who is being arrested is likely to act, and police should be able to prevent that.

In another decision, New York v. Belton, the Court ruled that a search incident to an arrest that takes place in acar may extend throughout the passenger compartment of the car, even though that compartment may include spaces beyond the suspect's reach and therefore outside the zone from which weapons and evidence are accessible.

Why should the officer be able to search even those parts of the passenger compartment beyond the suspect's reach? The Court argued that police in pressure-filled circumstances should not have to analyze what parts of the car (as opposed to what parts of the world beyond the car) are within reach of a suspect under arrest; the clearest rule was that the entire car (except the trunk) is fair game.

In addition to deciding that everything besides the trunk is legally (if not factually) within reach of a suspect under arrest in a car, the Court in Belton also decided that a search incident to arrest is permissible even when police have already removed the suspect from the vehicle prior to arresting him. Logically, one would think that this order would extinguish the police's rights to search the interior of the car - no longer within arm's reach for any purpose. But the Court did not so hold.

Instead, though the arrestee was no longer in the car at all at the time of arrest, the Court ruled that the police could search the interior of the car - specifically, the passenger compartment. Again, the Court cited the need for a clear rule, though it is not obvious why the following rule is not clear: no searching a vehicle incident to arrest when the arrestee cannot reach into the vehicle.

Perhaps the Court worried, however, that police might be motivated under such a rule to put their safety at risk in order to search for evidence. If that were the case, however, the Court would be protecting the police not so much from the (presumed) dangerous suspect but from their own desire to exploit the search incident to arrest doctrine to gather evidence, despite risks to their own safety.

How The Recent Thornton Decision Expands the Doctrine Further Still


Consider, then, the logical moves the Court made in expanding the search-incident-to-arrest doctrine. First, it recognized sensibly that the point of a search incident to arrest is to block a suspect from reaching for weapons and evidence. Nonetheless, it later held that arrests for nonviolent crimes that carry no evidence still authorize a search, in the absence of probable cause. Then it ruled that car arrests expand the space within which police can search beyond the actual reach of the suspect. And, in addition, it said that arrests of people ordered out of a car authorize a car search, to avoid endangering police who would look for any pretext to search a suspect's car.

It is within the context of this history of the search-incident-to-arrest doctrine that the Court decided Thornton.

Thornton takes the expansion of the exception one step further. When the police officer first made contact with the suspect in question, the suspect had already parked his car and begun to walk away. The police, in other words, did not interact in any way with the suspect until he was no longer within reach of his car.

The officer then began an encounter that ended with an arrest and the suspect's being placed inside the patrol car. But there was nevera moment during which the police officer made demands of the suspect, while he was in his car, that could possibly have led to the destruction of evidence or to reaching for a weapon in the car.

Nonetheless, the Court held that a search of the car was permissible and that nothing about its earlier ruling in Belton says that the police have to initiate contact with the suspect while he is in his car in order to render the car searchable.

What Is Wrong With This Line of Cases, Including Thornton

The Court is correct, of course, that nothing about the prior cases rules out a search incident to arrest in Thornton's case. Indeed, the fact that there is no risk whatsoever of Thornton reaching into his car for evidence or weapons has already been ruled legally irrelevant.

Going one step further, where the car is almost completely out of the picture (except in the sense that the police officer noticed the suspect while the suspect was driving a car), does seem perfectly consistent with the prior decisions. And that is exactly what is wrong with this line of cases.

This line of precedents does not admit of any logical stopping point, because it left behind the actual rationales for the decisions long ago. No longer is police protection or evidence protection even remotely related to the type of searches incident to arrest the Court approves.

Indeed, consistent with the Court's prior cases, one could go on to argue (ridiculously) that anyone who is arrested, and who owns a car, triggers the authority for police to search the car "incident to arrest" -- even if the car in question is parked in a faraway garage during the entire arrest.

This isthe sort of doctrine that breeds cynicism, because it embraces results and uses legal reasoning as window dressing (and unattractive window dressing at that).

After the decision in Bush v. Gore, the Supreme Court lost prestige and credibility, because it appeared to decide an election through a pretextual and result-oriented reasoning process. Of course, Thornton and its predecessors are not nearly as famous or significant as Bush v. Gore. But they too chip away at the Court's status as a principled and reasoned institution.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.