A Chance to Determine the Fourth Amendment Limits On Search Incident to Arrest: The U.S. Supreme Court Grants Review in Arizona v. Gant

By SHERRY F. COLB
Monday, Mar. 03, 2008

Last week, the U.S. Supreme Court agreed to hear the case of Arizona v. Gant. Gant asks the question whether a permissible "search incident to arrest" can extend to the inside of a car, even when the person arrested can no longer reach the car at the time of the search. The question is important because, over time, the scope of the "search incident to arrest" doctrine has become progressively more difficult to square with the rationales that gave rise to it. Perhaps, by taking the case, the Supreme Court has signaled its intention to clarify this increasingly murky area of Fourth Amendment law.

Search Incident to Arrest: The Key Precedent of Chimel

In 1969, in Chimel v. California, the U.S. Supreme Court set out the current boundaries of what it called "search incident to arrest." When arresting a person for a crime on the basis of probable cause, the Court said, police possess the authority to search the person and the area within his or her immediate control. Previously, the doctrine had oscillated between a narrow search authority and a much broader authorization. In Chimel, the Court said, it was time to settle the matter once and for all.

Observing that an arrested person could reach for a weapon (to effect an escape or assault the arresting officer(s)) or evidence (to destroy it), the Court determined that police must be able to perform a search to protect against these dangers. Police could not, however, search beyond the area to which an arrestee had physical access. Among other things, the Court worried that a broader search authority would create an incentive for police to arrest people at home, rather than in public, in order to conduct a warrantless search of the home (perhaps even in the absence of probable cause). After Chimel, however, wherever an arrest might occur, police would now have only the authority to search the person and area within her immediate control - a doctrine the scope of which has led some to nickname it the "wingspan rule."

A General Inquiry on Justification

Having established a clear, bright-line rule permitting a limited search of an arrestee's "wingspan," the Court went on to examine the rule's implications for arrests of occupants of vehicles. In United States v. Robinson, police had stopped and arrested a driver for operating a car after his license had been revoked. Incident to the arrest, police searched the arrestee's person and found heroin. The arrestee challenged the admission of the evidence at his subsequent trial on the theory that a search incident to arrest must be justified, either by the need to disarm a suspect or by the need to preserve evidence. In Robinson's case, however, the crime for which he was arrested - driving with a revoked license - was not of the sort for which evidence might be destroyed. Furthermore, at the point when police found the drugs (inside a cigarette pack that was located inside Robinson's pocket), police had already ruled out the possibility of concealed weapons.

The Supreme Court rejected Robinson's claims and held that an arresting officer does not have to satisfy one of the two rationales underlying the search incident to arrest doctrine. Instead, the authority to carry out such a search arises from the fact of arrest (rather than from the particular crime at issue) and therefore follows automatically whenever an arrest takes place. Unlike ordinary searches, in other words, which must neither begin nor extend in scope beyond the justification for their initiation, the search incident to a lawful arrest is necessarily lawful if it remains within an arrestee's wingspan.

A Special, Sweeping Rule for Cars

Following Robinson, the Court faced the question how much of a car may be searched incident to arrest, when the arrestee had occupied a car around the time of his arrest. In particular, does the area within a suspect's immediate control include the passenger compartment of the vehicle? The Court responded in the affirmative in Belton v. New York, holding that in general, the arrestee who was just inside a vehicle can physically reach the various parts of the passenger compartment. Therefore, in the interests of having a bright-line rule to guide the police, a search incident to arrest of such an arrestee would automatically include the passenger compartment. Though the arrestee in Belton itself apparently could not have reached into the passenger compartment for weapons or evidence at the time of arrest, the Court nonetheless said that the general accessibility of this area counseled in favor of an across-the-board authorization to search.

After Belton, then, the general need to disarm arrestees and prevent the destruction of evidence upon arrest results in two consequences: First, it leads to a uniform authorization for a search of the person and of the area within her immediate control (even when there is no reason to suspect the presence of either weapons or evidence in the designated area). Second, it always authorizes the search of the passenger compartment of a vehicle, if the arrest was contemporaneous with the arrestee's presence in that vehicle (even when the passenger compartment of the vehicle is not in fact within the immediate control of the arrestee). The question that remained was this: What would count as "contemporaneous" for purposes of including the vehicle within the scope of a search incident to arrest?

The Court began to answer this question in Thornton v. United States. It held that even when a suspect has already parked his car and walked away from it by the time police first make contact with him, a search incident to arrest will still encompass the passenger compartment of the vehicle. After Thornton, however, it remained unclear where the stopping point might be. When, in other words, would the arrest of a person who had previously been in a car no longer extend to the inside of that car? And, perhaps more importantly, what link would the answer to that question have to the two rationales - disarming the arrestee and preserving evidence - on which the Court has relied to justify the doctrine first set out in Chimel? That is the question the Court can now address.

The Question Raised by Gant, the Case the Court Has Agreed to Hear

The police in Gant had a warrant to arrest Rodney Gant for driving with a suspended license. They also suspected him of narcotics offenses, although they apparently did not have probable cause to support that suspicion. Police waited for Gant near his home and watched him park his car in the driveway. As Gant emerged from the vehicle, an officer - about ten feet away from the car - summoned him. Gant approached, and the officer immediately arrested and handcuffed him, after which he placed Gant in the back of a patrol car under the supervision of another officer. Police then searched the passenger compartment of Gant's car and found a weapon and a baggie containing cocaine. Gant was later charged and convicted of two narcotics offenses on the basis of this evidence.

Gant challenged his convictions, arguing that the purpose of a search incident to arrest is to prevent a suspect from grabbing a weapon or evidence that could, respectively, be used or destroyed. In Gant's case, however, the passenger compartment of his car was completely outside the scope of the area that Gant could possibly have reached from the backseat of a police car, handcuffed and under the supervision of a police officer. The Arizona Supreme Court found this argument persuasive and reversed Gant's convictions. The U.S. Supreme Court subsequently granted review.

What's To Decide? Why Current Doctrine Already Covers Gant

The Arizona Supreme Court majority did an outstanding job of trying mightily to distinguish Gant from the U.S. Supreme Court cases that govern searches incident to arrest. It returned to Chimel and asserted that the two rationales originally announced there - protecting officers from weapons that might be grabbed, and preserving evidence from destruction - dictate that the officers in Gant should not have searched the vehicle. With respect to each of the relevant Supreme Court cases that followed, moreover, the Arizona Supreme Court suggested a narrow way in which one could read the Court's earlier opinions to leave open the question whether an officer truly could conduct a search incident to arrest in an area that unquestionably fell outside of the arrestee's reach. The Arizona majority did as good a job as I can imagine anyone doing in arguing that the Supreme Court had left this question unanswered. But alas, even outstanding lawyering cannot entirely obliterate the impact of the Supreme Court's prior handiwork.

Though the Court in Chimel does rely on two rationales, just as the Arizona opinion indicates, it is quite clear in permitting wingspan-area searches regardless of whether those two rationales apply. "When an arrest is made," the Court says in Chimel, "…. [t]here is ample justification … for a search of the arrestee's person and the area 'within his immediate control.'" The Court does not rely on the facts of Chimel to say that in that particular case, such a search would have been permissible. It instead speaks in general of lawful arrests. In Robinson, moreover, the Court says quite explicitly that it disagrees with the proposition "that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search," adding that "[t]he authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found…." Finally, and most significantly, the Court states that if an arrest is itself lawful, "a search incident to the arrest requires no additional justification."

In Belton, the Court defines the area within the arrestee's control as including (whether it, in fact, does or does not include) the passenger compartment of a vehicle, if a recent occupant of the vehicle is arrested. This is because the passenger compartment is "generally, even if not inevitably, within" reach of the arrestee. To "establish the workable rule this category of cases requires," the Court explained, "we read Chimel's definition of the limits of the area that may be searched in light of that generalization."

These generalizations upon generalizations are at the heart of the Supreme Court's search incident to arrest doctrine. To read the cases to say otherwise - that is, to read them to require that generalizations yield to the contrary facts of a particular case - is thus to engage in wishful thinking. The dissent in the Arizona Supreme Court's Gant decision shares the majority's misgivings but does not believe it is the place of a state supreme court to reconsider the wisdom of existing U.S. Supreme Court precedents. It is, of course, the U.S. Supreme Court's place to do just that. And perhaps, in Arizona v. Gant, it will.


Sherry F. Colb, a FindLaw columnist, is currently a Visiting Professor at Columbia Law School and will be joining the Cornell Law School faculty in the fall. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.