Last week, the Supreme Court announced the groundbreaking decision of Arizona v. Gant, significantly limiting the police’s ability to conduct searches of automobiles “incident to a lawful arrest” without either a warrant or probable cause. Before the Gant case, however, New York courts have consistently interpreted the State Constitution much more strictly, in this regard, than the Supreme Court had interpreted the U.S. Constitution.
This post will explore whether the new Gant decision makes the national rule regarding incident-to-arrest searches more lenient, as strict as New York’s rule, or stricter than New York, which would invalidate the New York rule to the extent that it was more lenient than the new Gant rule. This post will conclude that the Supreme Court’s new rule in Gant is still more lenient than New York’s rule, and that New York’s search-incident-to-arrest jurisprudence will probably not be affected by the holding in Gant.
For a nice summary of the development of the Supreme Court’s rules with regard to searches of automobiles incident to a lawful arrest, see the first part of Evidence ProfBlogger’s post at PrawfsBlawg, Coming Out of the Closet: How Arizona v. Gant Could Lead to the Shrinking of the Scope of Searches Incident to Lawful Home Arrests.
In short, before Gant was decided on Tuesday, the national rule, established by the Chimel case, was that was that incident to any lawful arrest, police may search “the area from within which he [an arrestee] might gain possession of a weapon or destructible evidence.” In the context of car arrests, the Court, in New York v. Belton, made a bright line rule that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” This right was automatic. It did not depend on the arrestee’s actual ability to reach a weapon or destructable evidence, nor did the police have to show probable cause or reasonable suspicion that the car was likely to contain evidence or a weapon.
These cases set a very low bar for what would constitute an “unreasonable search and seizure” in the context of a search-incident-to-arrest of an automobile. But New York has consistently interpreted its own Constitution more strictly, not adhering to the lenient bright line rule set by Belton.
People v Blasich, 541 N.E.2d 40 (1989), and, later, People v. Galak, 616 N.E.2d 842 (1993), have interpreted the New York State Constitution‘s “[s]ecurity against unreasonable searches, seizures and interceptions” provision (Article I, § 12) as follows: The Court of Appeals has held that the “search-incident-to-arrest exception to the warrant and probable cause requirements of our State Constitution… exist only to protect against the danger that an arrestee may gain access to a weapon or may be able to destroy or conceal critical evidence.” Blasich.
Alternatively, the Court held that police may search the car, even where the arrestee factually cannot reach it, where they have
“probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape. If so, a warrantless search of the vehicle is authorized, not as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement.” (emphasis added)
The Blasich court further held that “the proper inquiry in assessing the propriety of [the] search is simply whether the circumstances gave the officer probable cause to search the vehicle… Which of those crimes the officer selected when formally notifying the suspect that he was under arrest has little bearing on the matter.” In other words, it is immaterial whether the probable cause justifying the car search is also probable cause of the same offense that justified the initial arrest. As long as there is probable cause of some crime justifying the automobile search, the police may search it.
The question is whether the Supreme Court’s Gant decision last week brings up the U.S. Constitutional test for searches incident to arrest to the point where it is stricter than, more lenient than or the same as New York’s rule.
In order to answer that question, we must first understand what level of certainty the Supreme Court now requires the police to have that they will find evidence in the arrestee’s car. According to Gant, the police may only search an arrestee’s vehicle when when he “is unsecured and within reaching distance of the passenger compartment the time or the search”, or when it is “reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (emphasis added)
How certain must they be that evidence of the offense of arrest may be found in the car? The same level of certainty as “probable cause?” “Reasonable suspicion?” Some new test?
Orin Kerr offers a fundamental discussion of this question in a post at The Volokh Conspiracy, entitled When Is It “Reasonable to Believe” That Evidence Relevant to An Offense is In A Car? Does that Require Probable Cause, Reasonable Suspicion, or Something Else?.
In that post, he rules out the idea that “reason to believe” means probable cause because if that is what it meant, the search would be justified under the “automobile exception” to the warrant requirement irrespective of the “search incident to a lawful arrest” exception. Furthermore, he points out that Justice Alito’s dissent specifically distinguishes the “reason to believe” standard from “probable cause,” indicating that he understood the majority’s “reason to believe” test to be something other than probable cause.
I would add that even though the New York Court of Appeals in Blasich, above, uses the phrase “reason to believe” to mean “probable cause, I do not think it is necessarily relevant in determining the Supreme Court’s intended meaning when using the phrase “reasonable to believe.”
Professor Kerr also reasons that it is unlikely that Terry‘s “reasonable suspicion” test is the underlying meaning of “reason to believe.” As applied to the car search context, “reasonable suspicion” would probably be defined as “whether ‘a reasonably prudent man in the circumstances would be warranted in the belief’ that there was evidence relevant in the arrest in the passenger compartment of the car.” Prof. Kerr opines that this standard would seem difficult to apply in the context of a determination of whether a search for evidence is reasonable, in contrast with its simpler application in a Terry frisk, when the officer has to make a quick decision about whether the person in front of him may be concealing a weapon.
Prof. Kerr concludes that “reasonable to believe” is probably something less than probable cause, but it is not clear to him exactly what level of certainty it is.
“Reasonable to believe” is most likely less than probable cause. Partly, this is because, as Prof. Kerr pointed out, Justice Alito understood the majority this way in his dissent (and Stevens opinion in Gant also takes note of how influential the Brennan dissent in Belton was in shaping courts’ interpretation of the Belton majority). Also, if the majority opinion had intended to invoke the big gun, the probable cause standard, it should have and probably would have done so explicitly.
But there is another reason why this author believes that the court requires less than probable cause to justify the car search when the arrestee is secured. The fact that the court requires that the officer have a reasonable belief that evidence of the “offense of arrest” might be found in the car indicates that this level of certainty is not synonymous with probable cause. Because if it were, then the probable cause of whatever offense would justify the search of the car under the automobile exception, without the need to invoke the incident-to-arrest exception.
It is evident that the Court is trying to grant added protection to defendants by requiring that the reasonable belief must be that evidence of the offense of arrest will be found specifically because the justification for the search is something less than probable cause. Such a stringency in the search-incident-to-arrest doctrine would not be needed if probable cause that evidence would be found in the car were present and the automobile exception applied.
The court probably requires “offense of arrest” specific reasonable suspicion in order to limit the use of “pretextual stops,” where police pull someone over for some traffic offense, for which the driver could be arrested, because they want to find evidence of some unrelated offense, in a search of the vehicle in incident to that arrest.
All of that being said, it appears that New York’s rule is still stricter than the Supreme Court’s rule.
It may appear from the Court of Appeals’ Blasich decision, mentioned above, that New York is more lenient than the Gant case because it allows searches of secured arestees’ vehicles for any offense, while Gant only allows searches for evidence of the offense of arrest.
This is not so, however, because Blasich explicitly stated that the search of a secured arrestee’s car for evidence of any offense is not justified “as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement.” The New York rule, therefore, permits car searches supported by probable cause that evidence of any offense will be found, using the automobile exception. While Gant holds that police must reasonably believe that evidence of the offense of arrest might be found.
This author believes, therefore, that in situations where a suspect has been secured and police do not have probable cause that evidence of some crime will be found in the car, New York will continue to apply the stricter rule that police may not search the vehicle without a warrant. While outside New York, the new Gant rule will be followed that would allow a search of a secured arrestee’s vehicle when police have a reasonable belief that evidence of the offense for which the suspect was arrested might be found in the car.
Picture courtesy of howstuffworks.
I talking with my employer, Elliot Schlissel, Esq., about my post yesterday regarding the case of the Tenaha, TX police department’s use of apparently unreasonable searches and seizures to obtain money and property from travelers through their town to bolster their local budget. I told him that the individuals involved are being sued for violations of the victims’ civil rights. He suggested that those individuals involved may potentially be prosecuted criminally for violations of the Federal Racketeering Influenced and Corrupt Organizations (“RICO”) law.
After reviewing some of the basic RICO statutes, I think the U.S. Attorney’s office prosecutors may have a case against the officers and individuals involved.
The RICO law, 18 USC §1962(c), prohibits “any person employed by or associated with any enterprise engaged in… activities… which affect interstate… commerce, to conduct… such enterprise’s affairs through a pattern of racketeering activity…” (emphasis added)
(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance… which is chargable under State law and punishable by imprisonment for more than one year [or] (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201… (emphasis added)
One of the acts “indictable under any of the following provisions of title 18″ is extortion, which is defined by § 1951(a) as when someone “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do (sic)…” That section further defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
While the town of Tenaha itself is not a proper subject of RICO prosecution because it is not a “person” under the RICO statute, the Marshall, Mayor, Constable and Shelby County D.A., in their individual capacities, would be proper “persons” for RICO prosecution. See Pelfresne v. Village of Rosemont, 22 F.Supp.2d 756, 761 (N.D. Ill. 1998).
If the facts are indeed as the San Antonio Express-News has reported, then over 140 motorists have been stopped and been “willingly” induced to sign over their property with the threat of bogus prosecutions for crimes they were never charged with and which involved searches that probably violated their fourth Amendment right to be free from unreasonable searches and seizures.
Furthermore, the Mayor’s comments defending the practice indicated that it was their intent to use these means to bolster the cash-strapped budget of the town’s police force. This implied that their the use of the Texas forfeiture statute to confiscate travelers’ money and property using abuses of their 4th Amendment rights was a coordinated conspiracy.
Travelers’ freedom to pass and bring property between states appears to have been impeded by “wrongful use of… fear… under color of official right.” If indeed this has occurred in over half of the 140 instances of the induced property forfeitures between 2006 and 2008, and it can be shown that the officials involved took part in at least two instances of extortion each, then it would appear that the Marshall, Constable, Mayor and D.A. in Tenaha and Shelby County may be susceptible to criminal (and perhaps civil) RICO prosecution.
At the very least, the U.S. Attorney’s Office for the Eastern District of Texas ought to look into whether an investigation should be opened to determine if criminal RICO prosecution may be appropriate.
Picture courtesy of community-builder.
March 12, 2009
The Chicago Tribune has just picked up on a story from over a month ago at mysanantonio.com. The Texas town of Tenaha is using a state forfeiture law that gives the police the right to seize any property used in a crime to bolster that department’s budget. Police officers have been using this law to stop cars traveling through their tiny (pop. about 1000) town and they have taken property from over 140 drivers between 2006 and 2008.
They apparently told people that if they didn’t sign their property over to the police, they would press charges against them for money laundering or other crimes. One waiver said “In exchange for (respondent) signing the agreed order of forfeiture, the Shelby County District Attorney’s Office agrees to reject charges of money laundering pending at this time…”
Cynically, the mayor of the town said that the seizures allowed a cash-poor city the means to add a second police car in a two-policeman town and help pay for a new police station… “It’s always helpful to have any kind of income to expand your police force.”
Without probable cause that a crime has taken place, and exigent circumstances to justify why the police must search the car without a warrant, police may not search a person’s car unless they have a “reasonable suspicion” that a person poses a danger to the police officer. And even then, they may only pat down a person or search in their immediate vicinity to the extent that such a search may help them find any weapons that could be used against them. They may not search outside of that scope searching for evidence of any crime however. Terry v. Ohio.
In some cases, the only “factual basis” for the drug or money laundering “charges” was the presence of larger sums of money in the car. And even for that, they would have had to search the car to find the motorists’ expensive property or cash without any “reasonable suspicion” of a threat to the police officer. In such a situation, that would be unconstitutional as well.
Normally, the remedy for the police’s violation of someone’s 4th Amendment rights would be suppression of any evidence obtained throught that violation. But in this case, since the individuals chose to sign over their property to the police, and no charges were filed, there is no evidence to suppress. Thus, the only remedy for a violation of these people’s Constitutional rights is by civil remedy, a §1983 discrimination case.
Thus, David Guillory, attorney for the so-far eight plaintiffs in the lawsuit against the town of Tenaha, filed a §1983 Complaint in District Court seeking compensation for the town’s violation of his clients’ Fourth Amendment Constitutional rights.
In an effort to prevent such abuses by towns in the future, the Texas Senate Criminal Justice Committe has recommended several changes to the forfeiture laws there (p.71), including a shift of the burden of proof to the government in order to seize assets:
If the facts are proven to be as egregious as Mr. Guillory and the aforelinked articles suggest, I very much hope he is successful in his case against the town and that the State adopts more stringent rules to prevent abuses like these from happening in the future.
Picture Courtesy of Chicago Tribune
January 28, 2009
As an appropriate follow up on this post from Monday about the Court of Appeals, Second Circuit’s decision a few days ago, the Supreme Court ruled on Monday about a related matter. In Arizona v. Johnson, the Supreme Court released a unanimous decision clarifying when a “pat down” for weapons is or is not in violation of the 4th Amendment prohibition against unreasonable searches and seizures.
In the case, a police officer pulled over a car for a routine traffic violation. After noticing some gang related clothing and unusual behavior by the passenger in the back seat, she began conversing with him and he revealed his gang affiliation with the Crips. She asked him to get out of the car, and fearing for her safety, she patted him down, whereupon she found a gun he was illegally possessing. Later on, this individual’s attorney moved to suppress the gun evidence, arguing that the pat down was an unreasonable search and seizure since she had no reasonable suspicion that he had or was about to engage in some criminal activity. All she had was a suspicion for her safety. The trial court allowed the evidence but the Arizona Court of Appeals said that since her suspicions were the result of a consensual conversation, the stop was no longer part of the traffic stop and that the officer therefore lost her ability to pat him down for fear of her own safety, barring a reasonable suspicion of criminal activity, which was absent in this case.
The Supreme Court reversed this Arizona Court of Appeals decision, and let the Trial Court’s decision to allow the pat down stand. They argued that “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration.”
As Professor Orin Kerr (one of the authors of my Criminal Procedure Casebook!) emphasizes in his post at The Volokh Conspiracy, “[t]he temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.” (emphasis added).
Combined with the 2nd Circuit’s decision on Monday, in New York, as long as the police stop a car for a traffic violation, and then see something that makes them suspicious that the occupants may have a weapon, they may pat down the occupants of the car and search the car if there’s some reasonable basis to think that illegal activity has or is about to take place.
These recent developments and decisions make it even more important to get a lawyer who understands the intricacies and the new developments in criminal procedure regarding what the police may and may not do in a traffic stop, if you get stopped for a DWI, or any other reason…
Picture courtesy of…
January 26, 2009
The “Wait a Second!” blog recently reported on a decision by the Second Circuit, the Federal Appeals Court with Jurisdiction over New York, from January 8th, that clarifies and expands the rule on when the police can search a car.
As background, the court is addressing the question of when a police officer may search someone’s car without violating the 4th Amendment’s prohibition (extended to State and local governments by the 14th Amendment) against police searches without probable cause. The issue in the case was whether police had to meet the more stringent requirement of “probable cause” in order to stop the car or whether they merely had to show “reasonable suspicion of a traffic violation” in order to stop the car. If they had been justified in stopping the car, they would have been able to search it after observing a occupant of the car trying to hide something. So the question is whether they were allowed to stop the car. If not, the evidence the police acquired would have to be supressed.
The Second Circuit held that the police only needed “reasonable suspicion of a traffic violation” in order to stop the defendant’s car. So make sure you have a good defense attorney who knows the current law when it comes to police only needing “reasonable suspicion of a traffic violation” to stop your car.
Picture courtesy of Center-of-Mass.com