After Gant, Is New York’s Car Search Rule Stricter, More Lenient or Juuuust Right?

April 27, 2009

police-search-car-incident-lawful-arrest-belton-gantLast 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.

Advertisements

8 Responses to “After Gant, Is New York’s Car Search Rule Stricter, More Lenient or Juuuust Right?”

  1. Brad Says:

    All of this discussion of search incident to arrest leaves out the obvious question to me…what about “inventory” searches of cars after arrest that end up in new charges being filed?


  2. Brad, you’re right. Police can incorporate the lessons from Gant and stop doing searches of cars incident to arrest in many cases. But, as you point out, when those cars are impounded, the police will still find the same weapons/evidence in those cars during their inventory search and it will be admissible as long as the inventory search requirements are met. No argument here.

    But is another result possible? Is it possible for police not to inventory the contents of cars, leaving them open to accusations of theft and leaving the owners of the cars open to the possibility of actual theft of the property in their cars? What’s the alternative?

  3. t brown Says:

    I guess the relevant fact would be that as in all questions of theft from a vehicle one presumes that evidence of such incidents is a seperate issue of theft and would be sort of silly to infer that the officer would find it useful to steal from impounded vehicles
    but just as one who might lend out a car is vunerable there is little reason to believe that the police or tow companies would be any more likely to steal the contents
    car break ins are much less a concern than freedom from illegal searches
    the contents of ones car as a property which presumes that non owners are aware that this is not their stuff inside
    the lack of ownership would presume one is certainly not invited to do more than admire the paint job but certainly just because there are windows the privacy expected was certainly intended to be for the contents of a wagon not simply as a way to protect hidden objects
    the windows of a car are for looking out of not for others to see in and when a car is stopped to examine the interior without permission and assistance from an owner suggests an intention to some other purpose
    how about this remedy the police lock the doors after the driver is not in the car to ensure its not stolen by another person of unknown identity

    the desire to prevent theft after arresting a person for a warrant would most definately show us how illogically the sense of pretection is extended
    theft prevention is not aided by inventory of the contents or even ones possessions by police
    goodness thats such an obvious excuse to search and bypass the legal protection from such an event
    which is best done by NOT taking an inventory of other peoples things after all inventory suggest one is only doing it in reference to what they own otherwise the list is simply unneccessary
    i do not inventory peoples homes before i visit in order to proove i did not steal anything and would not be able to defend theft with such alist
    a thief is unlikely to inventory what he is taking anyway
    why would that goofy senario even come up
    what is the alternative indeed

  4. anna Says:

    I think that after gant car search rule are now more lenient which is a good thing.

  5. SlurlKicKelry Says:

    Very similar.


  6. Valuable info. Lucky me I found your website accidentally, and I am surprised why this accident did not happened in advance! I bookmarked it.


  7. Very neat post.Really looking forward to read more. Awesome.


  8. Thank you for any other excellent post. Where else may just anybody
    get that kind of information in such a perfect approach of
    writing? I have a presentation next week, and I’m at the look for such information.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: