Monday, April 27, 2009



Max Newport

Last week, the United States Supreme Court, issued what appeared to be a landmark ruling regarding the Fourth Amendment’s prohibition of unreasonable search and seizure by police after a criminal traffic stop. Whenever the Supreme Court speaks, lesser courts throughout the nation must say “stop, hey, what’s that sound” and make sure that their ruling is applied as dictated by the highest court in the land. The Supreme Court in Arizona v. Gant ended a 28 year warrantless search exception, under certain circumstances, that will most likely be hailed as a great advancement for those who are arrested but don’t want their vehicle searched but in essence will have little, if any, effect.

A few weeks ago I wrote about my big run in with Johnny Law over my Florida Gator license plate frame that partially obscured my Florida Gator license plate. Obscuring a license plate is a second degree misdemeanor punishable by up to 60 days in jail or a $500 fine or both. I did immediately remove the Gator frame so that my Gator plate could be viewed by all in its intended unfettered “Gator Nation” glory. The officer gave me a verbal warning since the law was relatively new. If he had stopped me the next day, I suspect I would have been arrested if I had not removed the frame that was obscuring the tag. (On a side note, each day on my short commute to work, I see dozens of tags that are partially obscured due to similar frames and yes, I am concerned that I may become some kind of compulsive nut job who likes to count things.)

Based upon the prevailing search and seizure law a few weeks ago, I would have been cuffed and the officer could have searched my vehicle based upon New York v. Belton, which allowed the search of the passenger compartment and all containers within based upon the arrest of any occupant. So if I had been running shine from the hills of Caroline or illegal cigarettes from the Seminole Nation, I would be facing some serious additional charges. Gant does not overrule Belton, per se, but does limit such a search to evidence that would be relevant to the charge for which I was arrested. On my charge of having an obscured tag, which I admitted to putting on the frame that so obscured, there is nothing the officer would be able to find in my car that would make his case any stronger. So if my car was searched and the hooch and the cigs were found, they would not be admissible against me under the new Supreme Court decision.

Gant involved a person arrested for driving with a suspended license. During a search of the vehicle incident to the arrest, the officers found cocaine. At the time Mr. Rodney Gant was handcuffed and in the back seat of the patrol car so he posed no threat to the officers. The Court also stated that there would be nothing in the car that could be used as evidence on his suspended license charge. I have to disagree with the mighty Supremes on that issue based upon my own sordid past. During my college days, I accumulated enough parking tickets to have my license suspended (until I paid them off). If I had been stopped, the opened envelope advising me that my license was suspended until I paid off the tickets was in the visor just a foot or so above my steering wheel. This would certainly be valid evidence if I gave my usual response to such accusations made of me at that age which was “Huh?” On that point, I disagree with the Supreme Court, since a search of the vehicle after a suspended license arrest could reveal evidence pertaining to that charge.

As I wrote in an earlier post, many drug arrests are based upon a search incident to arrest based upon facts similar to those in Gant. Since the ruling will affect all cases that are now pending in courts throughout the country, it is likely that some evidence will be suppressed and some guilty folks will go free. Since the Belton ruling has been the law for 28 years, it is older than many of the officers out there patrolling the streets. The police will have to make some slight adjustments and use other exceptions to the search warrant requirement if they desire to search the interior of the vehicle.

They can always ask for consent to search from the person they just arrested. Since the standard for the validity of a consent search is a knowing and voluntary waiver that is not based on police coercion, this might be tough since the person being asked for consent is under arrest and in handcuffs, and more likely than not, in the back of a squad car.

Officers can always call out the drug sniffing dogs and if the dogs signal the presence of contraband, that is probable cause for a search (ask our old buddy Ron White). If the officers suspect drugs the canine sniff is an option. A sniff is not considered a search for Fourth Amendment purposes. Any vehicle in a place where the public has access can be subject to a sniff.

The third weakness in the Gant decision is one that is evident in almost every case involving an arrest and a vehicle. The vehicle can be towed for impound and the officers can procedurally do what is called an inventory search to document every item in the vehicle in case there is any later discrepancy. If drugs or any other type of contraband is found during this exception to the search warrant requirement, it is admissible in a criminal case. Usually the drugs were found at the scene of the arrest based upon the search of the vehicle incident to the arrest. This new decision simply postpones the inevitable.

I cannot totally disrespect the Supreme Court’s decision, because I can understand their desire to prevent an arrest on a traffic charge from turning into a full scale fishing expedition for illegal materials. On the other hand, how far will this case be expanded beyond the charge mentioned in Gant to other arrests where evidence of that crime would not be contained within the vehicle (a felony arrest warrant for a worthless check as an example). It will be confusing for awhile and I can almost guarantee you that virtually every vehicle involved in a traffic arrest will now be towed and impounded for a procedural inventory search other than given to a friend or relative to drive to the defendant’s home (after a clean search), which was often done by police on misdemeanor traffic charges.

Max seldom gives out financial advice, but now will be a good time to invest in towing.

If you are not totally bored out of your mind by now, here is the case to make sure that you are:

You would think that if the Supreme Court had something to say, they wouldn’t leave so many loopholes, but they are they as I am me as you are you and we are all together. Have a good week, and in spite of this case, keep the outlaw hooch and hookers out of your car.


No comments: