The Fourth Amendment protects people from unreasonable searches and seizures, and Americans are well aware that you don’t give up your rights just because you get in your car. As the Supreme Court noted in Coolidge v. New Hampshire, “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away.”

Generally, this protection against unreasonable searches and seizures means that police officers may not search an individual without a valid warrant. However, the Court has carved out several clear exceptions to this general rule. In the motor vehicle context, these include search incident to arrest and an inventory search after impoundment.

Search Incident to Arrest

Despite the privacy interests protected by the Fourth Amendment and the fact that generally a search without a warrant is unconstitutional, the Court has recognized that police officers must be allowed to search an individual as part of an arrest. This search protects police officers from potential hidden weapons and ensures that an arrested person is not able to destroy evidence in the immediate vicinity.

However, the boundaries of this search have changed with time. Most recently, on April 21, 2009, in Gant v. Arizona, the Court restricted the circumstances under which police officers could rely on a search incident to arrest to search a vehicle. The Court held that after police have arrested and secured the occupant of a vehicle, the police may not use this exception to search the vehicle.

This is a significant departure from prior rulings in this area. For nearly 30 years, police officers have been using the search incident to arrest exception to search the entirety of a vehicle’s passenger compartment when an arrest involves an individual in an automobile.

In Gant, the Court left some room for police officer discretion for cases involving search incident to arrest. The Court acknowledged that a search incident to arrest could be justified “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”

In the Gant case itself, the search was not justified, because Gant was just arrested for driving on a suspended license; there was no additional evidence of the offense that the police could have found. But what if he had been arrested on another charge, such as drugs? The Court left open the possibility that the offense of arrest may itself supply sufficient grounds for searching the passenger compartment of the vehicle, including containers.

Even with this open-ended possibility though, the holding places substantial restrictions on the scope of search incident to arrest. Accordingly, this holding seems like a victory for privacy rights advocates. Unfortunately, the ultimate consequences may not be as significant as they initially appear.

Inventory Search

The problem, from the standpoint of someone interested in protecting the privacy rights of individuals, is that police may still access the vehicle through an inventory search. For more than 30 years, the Court has allowed routine police inventory searches of the contents of impounded vehicles, even if a car was only impounded for ordinary traffic violations.

One potential consequence of Gant is that police departments may change their policies and opt to impound cars as a matter of course. On a DWI arrest, for example, police may previously have stopped the car, arrested the driver, searched the car incident to arrest and then let a sober passenger drive it away. Now, after Gant, they may change their policies to tow the vehicle every time so that they are allowed to search the vehicle every time even if that means inconveniencing passengers for no good reason.

State by State?

The impact of Gant on inventory searches may vary by state. In some states, statutes may grant a driver or passenger the right to remove personal possessions from the vehicle before an inventory search. Or police may even have an affirmative duty to allow the driver a reasonable opportunity to make alternative arrangements for the vehicle before impounding it. Law enforcement agencies across the country are reviewing the relevant state and local laws and policies in the wake of the Court’s decision.

Given how prevalent vehicle searches have become, the suspicion remains that Gant will not be an unmitigated victory for privacy rights. In a Newtonian sense, in which every action has an equal and opposite reaction, the result of fewer searches incident to arrest may be more impoundments, depending on where you live.

Or, given the Court’s evident concern about so much rummaging by law enforcement through vehicle occupants’ personal property, the operative image may be Heisenberg’s uncertainty principle. It could be that the impoundment exception itself, like the search-incident-to-arrest exception, is ripe for limitation. Ultimately, the full consequences will not be known until police officers and law enforcement agencies have an opportunity to revamp their policies to ensure compliance with the holding in Gant.

Reference: Stone & Law

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