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Vol. 4, No. 1 | December 2009
When Can the Police Search the Passenger Compartment of a Car? The Significance of Arizona v. Gant
by Jack E. Call
Professor of Criminal Justice
On April 21, 2009, the Supreme Court decided Arizona v. Gant, a case of great significance to the police. In order to understand the significance of Gant, it is useful to put the case in the context of earlier case law.
In Chimel v. California (1969)1, the Court held that when the police arrest a person, the person and the area within his immediate control may be searched without a search warrant for the safety of the arresting officer and to prevent against the destruction of evidence that the arrested person might be able to access during the process of arrest and transportation to the police station. The Court later made it clear that this warrantless search can be done incident to all arrests, even in cases where there is no reason to think that the arrested person has a weapon or evidence of a crime on his person or within his reach.2
In New York v. Belton (1981)3, the Court dealt with the situation where a suspect is arrested in or at an automobile. The Court concluded that in this situation, it is very difficult to determine how much of the interior of a car is within “the immediate control” of the arrestee. Consequently, the Court thought it best to create a “bright line rule” for the police. The rule was that when an arrest is made at an automobile, the police may search the entire interior or passenger compartment of the vehicle, even though the Court conceded that not every item found during such a search is realistically within the actual reach of the person arrested. In Thornton v. U.S. (2004)4, the Court extended the Belton rule to permit warrantless searches of passenger compartments even when the person arrested was no longer in or at the vehicle, but was a “recent occupant” of the vehicle.
The Court acknowledged in Gant, that the Belton rule has been “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” The Court also recognized that this is the way the rule has been taught to police officers for nearly thirty years. Nevertheless, the Court concluded, in a 5-4 decision, that this understanding was erroneous.5
The new rule established by the Court in Gant is that the police may not conduct a warrantless search of the passenger compartment unless the arrested person is “unsecured and within reaching distance of the passenger compartment at the time of the search.” The Court ruled that the Belton search of Gant’s car was unconstitutional because at the time of the search, Gant had been arrested (for driving with a suspended license), handcuffed, and locked in the back seat of a patrol car. Therefore, he was secured and no longer “within reaching distance of the passenger compartment.”
While the majority opinion is not as explicit about this as it could be, it is clear that Justice Stevens, writing for the majority, viewed Belton as involving a situation very different from Gant. He pointed out that in Belton, the arresting officer was alone and had arrested four individuals. Because he was alone and had only one pair of handcuffs, the arresting officer ordered the four men he had arrested to position themselves in four locations some distance from each other. It was while the four men were so positioned that the arresting officer had searched the passenger compartment of the automobile. Under those circumstances, the arrested persons were unsecured and posed a significant risk of being able to retrieve from the passenger compartment any weapon (or evidence of a crime) that might have been contained there. In Gant, on the other hand, Gant had been handcuffed and locked in a patrol car so there was no longer a realistic risk that he could retrieve anything from the interior of his automobile.
In addition to the “reaching distance” rule, the Court established a second new rule. It indicated that “[a]lthough it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’” This language is taken from Justice Scalia’s concurring opinion in Thornton (an opinion that foreshadowed the Court’s ruling in Gant).
Like most rulings that represent a dramatic departure from previous decisions, the rulings in Gant raise several important questions. First, it is important to be absolutely clear that these rulings restrict significantly the authority, which had been exercised by the police since Belton, to search the passenger compartment of an automobile after arresting an occupant or a recent occupant of the car. However, there are questions concerning the scope of this newly restricted authority.
An initial question concerns whether the Gant rule requires that the government show that at the time of the warrantless search of the passenger compartment, the defendant was not only within reaching distance of the vehicle but was also unsecured. Assume, for example, that two police officers pull over a vehicle and arrest the driver. The driver is ordered to get out of the car and stand next to the driver’s door. While one of the officers points his service revolver at the driver, the other officer searches the passenger compartment.
In this situation, it can be argued that the driver remains within reaching distance of the passenger compartment, but he has been “secured.” In Gant, the Court’s precise statement of its first ruling was that “the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” This statement of the rule seems clearly to suggest that the government must show both that the defendant was within reaching distance of the passenger compartment and was unsecured.
However, in applying this rule to the facts in the case just two paragraphs later, the Court concluded that the search was unconstitutional because “Gant clearly was not within reaching distance of his car at the time of the search.” When the Court later concludes its opinion, it reiterates the rules established in its opinion by saying that “[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest,” saying nothing about the suspect being unsecured. In addition, when the dissenters in their opinion state the rules established by the majority in Gant, they also make no mention of a requirement that the defendant be unsecured: “the Court adopts a new two-part rule under which a police officer who arrests a vehicle occupant or recent occupant may search the passenger compartment if (1) the arrestee is within reaching distance of the vehicle at the time of the search or (2) the officer has reason to believe that the vehicle contains evidence of the offense of arrest.”
As my hypothetical stated earlier makes clear, however, there may well be some situations in which a suspect could be within reaching distance of the passenger compartment but could also be viewed as “secured.” (Another example is where an officer acting alone arrests the driver and handcuffs him to the outside rear view mirror on the driver’s side of the vehicle). Under these circumstances, the legality of a search of the passenger compartment would turn on whether there is a requirement that the arrestee is unsecured. Future court decisions will be necessary to clarify this issue.
The second ruling (that the passenger compartment may be searched when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle”) also raises a couple of interesting points or questions. The first issue concerns what the Court means by “reason to believe.” Does the Court mean probable cause or reasonable suspicion, or is it establishing some new standard?
It seems unlikely that the Court is establishing a new standard because existing standards seem sufficient to give the police the authority they need to search in the Gant situation. But if the Court is not establishing a new standard, why didn’t it simply say “probable cause” or “reasonable suspicion” rather than “reason to believe”? One possible answer to that question is that the Court intentionally used a term different from probable cause and reasonable suspicion because that was not the precise issue before the Court. Some Justices (including, notably, Justice Scalia) take a very “incrementalist” approach to judging. They believe that a court should always decide only enough to resolve the case before them. Since this was a 5-4 decision and the four Justices other than Scalia needed him to form a majority, it is possible that they would have lost Scalia’s vote if they had been more specific. (This conclusion finds additional support from the fact that Scalia himself used the “reason to believe” language in his concurring opinion in the Thornton case). On the other hand, the Court did rule that the arresting officer in the case did not have reason to believe that evidence of the crime for which he was arrested was in his car; hence, the issue of what is “reason to believe” did seem to be before the Court.
It also seems unlikely that the Court intends for “reason to believe” to mean “probable cause.” Existing law already permits the police to search, not just the passenger compartment, but the entire vehicle without a warrant when they have probable cause to think contraband or evidence of a crime is present in the vehicle. With this existing authority to search, giving the police authority to search the passenger compartment when they have probable cause to think evidence of the crime for which the person has been arrested is in the vehicle would be unnecessary – the police already have the authority to search the vehicle in that situation.
Since it seems to me unlikely that the “reason to believe” language intends to create a new standard, or that it means probable cause, that leaves as the most reasonable conclusion that it probably means reasonable suspicion. As with the question of whether the first Gant ruling requires proof by the government that the arrested person was unsecured at the time of the search of a car’s passenger compartment, the “reason to believe” issue will require clarification from future Supreme Court decisions.
A second point under the second Gant ruling is that the opinion speaks of reason to believe that “evidence relevant to the crime of arrest might be found in the vehicle.” (Emphasis added). The Court did not talk of reason to believe that contraband or evidence of a crime would be in the car, but evidence concerning the crime of arrest. The Court goes on to say that in some cases “the offense of arrest will supply a basis for searching the passenger compartment.” This makes it clear that the “reason to believe” must be with respect to evidence related to the crime for which the defendant was arrested and not as to evidence of other crimes. (Again, the Court seems to be suggesting that the police need probable cause to think evidence of contraband or evidence of other crimes is in the car, and then the search may extend to all of the car – not just the passenger compartment).
Gant suggests at least two other questions that merit brief discussion. The first question has to do with what effect, if any, the decision has on Michigan v. Long.7 In Long, the Court held that when the police have stopped a person in a vehicle based on reasonable suspicion to think the person has committed, is committing, or is about to commit a crime (commonly referred to as a Terry stop), the police may also search the passenger compartment for a weapon if (and only if) they also have reasonable suspicion to think the person stopped is armed and dangerous. Just as the police may conduct a pat-down (i.e, a frisk) of the outer clothing of a person they have stopped on the street (but not arrested) when they have reasonable suspicion to think the person is armed and dangerous, they may also, in effect, conduct a “frisk” of the car of a person stopped under the same circumstances.
Does Gant affect the Long decision? The argument that it does is that, just as Gant limits searches of cars incident to arrest to those situations where the arrested person is unsecured and within reaching distance of the passenger compartment, the same rule should apply to Terry stops. Certainly the police should not have broader authority to search in a Terry stop situation where they have less reason to think the suspect has committed a crime than they have in an arrest situation.
There are at least two reasons to think Gant does not affect Long, however. First, in the Terry stop situation, the suspect will nearly always remain unsecured (because he is not being arrested). In addition, the suspect is also likely to remain without reaching distance of the passenger compartment. Since the suspect is not being arrested, he is not likely to be moved a significant distance from the vehicle. What’s more, the search incident to arrest is permitted in all cases, regardless of whether there is reason to think the search will find a weapon or evidence of a crime, but the Long search is permitted only in those situations where there is reasonable suspicion to think the person stopped is armed and dangerous. The Terry/Long frisk is not automatic after a lawful stop, whereas the search incident to arrest is automatic after a lawful stop. This obviates any concern that the police have broader concern to search in the Long situation where they have less suspicion to think the person seized has committed a crime (because they do need suspicion to think the person is armed).
In addition, the Court itself suggested that Long is unaffected by Gant. In addressing the government’s argument in Gant that the Court should give Belton the broad interpretation it had been given traditionally in order to protect the safety of law enforcement officers, the Court specifically mentioned Long as a case that provides ample protection for the police. Presumably the Court would not have relied on Long as a protection for police safety if it thought its opinion in Gant was going to cut back on the reach of Long.
The last interesting question about the effect of Gant relates to inventory searches of impounded vehicles. In South Dakota v. Opperman (1976)8, the Supreme Court permitted a warrantless inventory of a lawfully impounded vehicle. The justifications the Court gave for permitting such searches without a warrant were to protect the police from harm, to protect against false claims that the police took valuables from the vehicle, and the prevention of vandalism to the vehicle. The Court did impose three limitations on inventory searches: 1) The impoundment must be lawful. 2) The inventory must be of a routine nature, “essentially like that followed throughout the country.” 3) The inventory may not be a pretext for an investigative search.
There has been some speculation in some of the informal discussions of Gant on listservs and blogs that one result of the decision will be that the police will conduct more inventory searches. Of course, this means that they would have to impound more vehicles than they do at present. Whether the police want to go to that extra effort as a way to enable them to do some searches of cars that they will be unable to do now, as a result of Gant, is something that each police department will have to decide.
This is not the time and place for a lengthy discussion of inventory searches, but one cautionary note about them seems appropriate. Notice that the third limitation imposed on inventory searches by Opperman is that they may not be a pretext for an investigative search. Opperman was decided before Whren. Recall that Whren held that the police may engage in pretext arrests. The Court held that as long as an officer has a lawful basis for stopping someone, the courts are not to inquire into the motive for the stop. In light of the Court’s reluctance to inquire into police motives in Whren, it is possible that the Court is willing to re-examine its concern about pretext inventory searches. However, unless and until it does, one must presume that the language in Opperman about pretext inventory searches is still the law of the land.
 One of the interesting aspects of the decision by the Court in Gant is that the five-person majority included Justices Scalia and Thomas, who typically rule in favor of the actions taken by law enforcement officers in search cases.
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.