Barbara E. Armacost (University of Virginia School of Law) has posted Arizona V. Gant: Does it Matter? (2009 Supreme Court Review, 2010) on SSRN. Here is the abstract:
Prior to the Supreme Court’s recent opinion in Arizona v Gant, it was standard practice under New York v Belton for police to conduct a search incident to arrest (SITA) of the passenger compartment whenever they arrested the driver or a recent occupant of the vehicle. Police officers had begun to treat the SITA of a vehicle as a powerful investigative tool, using traffic stops and arrests to get a free search for evidence of more serious crimes At least as a formal matter, Arizona v Gant changed all this. In Gant the Supreme Court reviewed a Fourth Amendment challenge to an automobile search incident to arrest conducted after the driver had been arrested, handcuffed and secured in the police car. The Court held that police may not do a SITA of an automobile once the arrestee “has been secured and cannot access the interior of the vehicle” unless it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” For all practical purposes this holding means the end of Belton SITAs. It is standard protocol for police to order a potential arrestee out of his automobile, frisk him, handcuff him, and secure him in the officer’s vehicle. This means that SITAs of automobiles will almost never be justified.
Recently Professor Tim O’Neil of John Marshall Law School wrote…..”Be afraid. Be very afraid.”
He was writing about the impact that Justices’ Scalia, Thomas, Roberts and Alioto were having on criminal procedure.
The quartet were in the majority in two recent Supreme Court decisions that had placed the Fourth Amendment Exclusionary Rule firmly on the endangered species list. (See Professor O’Neil’s, “Exclusionary Rule Hanging On By a Thread,” Feb. 13, 2009). In 2006, the Roberts Court refused to exclude evidence recovered in a search following the failure of the police to properly “knock and announce.” Hudson v. Michigan, 547 U.S. 586. Conceding that the search violated the Fourth Amendment, Justice Antonin Scalia’s majority opinion for a 5-4 court claimed that “Suppression of evidence … has always been our last resort, not our first impulse.” And so, for the first time since the Exclusionary Rule was incorporated against the states in 1961, the Supreme Court refused to exclude evidence where the Fourth Amendment violation was caused solely by improper police behavior. Last year the Roberts Court took a second poke at the Fourth Amendment pi?ata. In another 5-4 decision, the Court appeared to raise the bar of police misbehavior that would justify exclusion. Herring v. U.S., 129 S.Ct. 695 (2009). Chief Justice John Roberts for the majority wrote that exclusion of evidence only “serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”
These decisions led Judge Richard A. Posner to opine that “[T]he exclusionary rule is bound some day to give way to [civil remedies].” U.S. v. Sims, 553 F.3d 580 (7th Cir. 2009).