Wednesday, April 22, 2009

Just When You Start to Lose Hope!

Just when you start to think it's time to leave the country the U.S. Supreme Court makes a decision that actually upholds our constitutional rights. In Gant v. Arizona, the Court ruled that officers may only search a vehicle incident to an arrest if the vehicle is still within the reach of the arrestee at the time of the search.

Since the entire rationale of the search incident to arrest doctrine that was established by the Court almost 30 years ago was to protect the officer against weapons that were within the reach of the suspect or to prevent the suspect from destroying evidence of the crime this decision makes perfect sense. So why was it necessary? Well, as we all know, over the years the search incident to arrest doctrine became abused by police everywhere. Acting with the consent of courts that refused to find the searches invalid, police searched vehicles in almost every arrest. Courts had even upheld searches conducted after the arrestee had been removed from the scene and there was no possibility of his accessing the vehicle.

This decision puts an end to that.

But in my opinion they didn't go quite far enough. They created a new reason to search by holding that police may search a vehicle when there is reason to believe that evidence of the crime of arrest is to be found within the vehicle. If you are arresting for a DUI, then you can search the vehicle for alcohol. If for drugs, then you can search for drugs.

How this last exception is going to be managed I don't know. If you have the right to search for drugs but find a weapon can you charge for a weapons violation? I don't see why not, but all that will have to be litigated. The rationale for permitting the search seems to be destruction of evidence, so why would not the access rule apply?

It's certainly a positive ruling. Now if we could just educate the public so that they would know that they don't have to give consent to search when asked we might make some real progress.


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