Police may not search a car incident to the driver’s arrest, after he is handcuffed and placed in the squad car, unless it is reasonable to expect that evidence of the offense of arrest will be found in the car.
That April 21 holding by the U.S. Supreme Court effectively overturns some Wisconsin precedents allowing police to conduct such searches whenever they arrest the driver.
In the U.S. Supreme Court case, Arizona v. Gant, Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car. Police then searched the car and found cocaine.
The Arizona Supreme Court held the search was unlawful, and the U.S. Supreme Court affirmed, in an opinion by Justice John Paul Stevens.
The court acknowledged that one of its own precedents, New York v. Belton, 453 U.S. 454 (1981), 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.”
Those interpretations are based on the following language in Belton: “[W]e hold 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.” Belton, at 460.
However, the court rejected those interpretations and limited its broad statement in Belton.
“We now know that articles inside the passenger compartment are rarely ‘within “the area into which an arrestee might reach,”’ and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches,” Stevens wrote. “The doctrine of stare decisis does not require us to approve routine constitutional violations.”
Applying the standard to Gant, the court held the search incident to arrest unconstitutional.
Handcuffed and locked in a squad car, the court found he could not pose any threat to the officers. Also, while the defendant in Belton had been arrested for a drug offense, Gant was only arrested for driving with a suspended license, and thus, the police could not expect to find evidence of the crime in Gant’s car.
Justice Antonin G. Scalia wrote a concurrence, arguing that the lead opinion’s standard invites officers not to secure suspects, in order to justify a search incident to arrest.
“I would hold that a vehicle search incident to arrest is ipso facto ‘reasonable’ only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred,” Scalia wrote.
Justices Stephen G. Breyer and Samuel A. Alito both wrote dissents, maintaining that Belton is binding precedent, and stare decisis warrants continued adherence to it.
“I would simply apply Belton and reverse the judgment below,” Alito wrote.
The opinion lends clarity to an issue that has been analyzed in a very inconsistent fashion in Wisconsin courts.
The Wisconsin Supreme Court first applied Belton in State v. Fry, 131 Wis.2d 153, 388 N.W.2d 565 (1986).
Fry was arrested for trespass and placed in a squad car, after which the officers searched his car and discovered a concealed weapon in the glove compartment.
The Wisconsin Supreme Court upheld his conviction, reasoning, “The Belton rule is a simple and reasonable rule governing the search of an automobile after an arrest is made. A police officer may assume under Belton that the interior of an automobile is within the reach of a defendant when the defendant is still at the scene of an arrest, but the defendant is not physically in the vehicle.” Fry, 388 N.W.2d at 574.
In State v. Pallone, 2001 WI 77, 236 Wis.2d 162, 613 N.W.2d 568, however, the court also upheld a search incident to arrest, but employed a very different analysis.
Pallone was a passenger in a pickup truck. The driver was arrested for driving with an open intoxicant, handcuffed, and placed in the squad car.
According to the arresting officer, there was a duffel bag in the truck, Pallone was nervous, and his behavior suggested there was something in the duffel bag he didn’t want the officer to see.
A search incident to the driver’s arrest yielded cocaine and paraphernalia, and Pallone was charged with possession with intent to deliver.
The Wisconsin Supreme Court upheld the legality of the search.
In doing so, however, it interpreted a more recent U.S. Supreme Court decision, Knowles v. Iowa, 525 U.S. 113, 116-17 (1998), to require that a search of a car incident to an occupant’s arrest be tied to one of the exception’s two rationales: (1) officer safety; and (2) the need for evidence. Pallone, at par. 39.
The court then determined that both concerns justified the search of the duffel bag. It could have contained a weapon (threat to officer’s safety); or it could have contained more beer (evidence relevant to the crime for which the driver was arrested). Id., at pars. 47-53.
That Pallone remains valid law in light of the opinion in Gant is underscored by a footnote from Alito’s dissent, stating that the opinion does not reach situations where an officer arrests some, but not all, of the occupants of a vehicle.
However, a recent published opinion from the Wisconsin Court of Appeals is no longer valid. That opinion abandoned the analysis employed in Pallone, and reverted to that employed in Fry. State v. Littlejohn, 2008 WI App 45, 747 N.W.2d 712.
Littlejohn was arrested for driving after revocation of his license. He was handcuffed, arrested, and placed in the patrol car.
The police then conducted a search of his car incident to arrest, and as a result of the search, he was charged with possession of cocaine and marijuana.
The trial court granted his motion to suppress, but the Court of Appeals reversed, relying exclusively on Fry, and all but ignoring Pallone.
Littlejohn clearly posed no threat to the officers once he was handcuffed in the squad car; there were no other occupants to present a threat; and the search of the car clearly was not intended to gather evidence of driving after revocation.
So, while Pallone remains valid law, Fry and Littlejohn should be deemed overruled by the Supreme Court’s opinion in Gant.