“Because the law says we can do it” was the response Officer Griffith offered when asked why officers searched Rodney Gant’s car when he was arrested for driving with a suspended license. Officer Griffith’s honest answer exemplifies the effect of prior Supreme Court decisions on search incident to arrest power in the vehicle context: that a vehicle search incident to arrest is a police entitlement divorced from any rationale whatsoever. Concerns for officer safety and preservation of evidence -- legal justifications that generally permit warrantless searches incident to arrest generally -- had been utterly abandoned by the Court in the automobile context. This police entitlement led to invasions of privacy against persons guilty of no more than mere traffic violations, as searches were conducted simply because they were legally permissible. However, the Supreme Court in Arizona v. Gant shifted course and strengthened Fourth Amendment protections by terminating the entitlement that permitted vehicle searches incident to arrest as a matter of right.
The tumultuous jurisprudence of the search incident to arrest doctrine under the Fourth Amendment has often produced inconsistent and varied results. In keeping with this tradition, the Supreme Court in Gant revised nearly thirty years of search incident to arrest law in the automobile context. Unlike Gant’s predecessors, Gant generally enhanced Fourth Amendment protections against unreasonable searches by holding that automatic vehicle searches incident to arrest are unconstitutional. On the other hand, Gant’s second holding created a new warrant exception to govern searches of automobiles incident to arrest by allowing officers to search a vehicle, even when the justifications of officer safety and preservation of evidence are nonexistent.
The author argues that Gant not only enhances Fourth Amendment protections overall by limiting authority to search an automobile upon arrest, but that its first holding also undermines other cases permitting automatic searches incident to arrest in non-vehicular situations. Gant’s affirmation of two specific rationales that permit a search incident to arrest, officer safety and the preservation of evidence, directly conflicts with non-vehicular cases that allow automatic searches irrespective of these rationales. Since Gant undermines such cases by reconnecting the search incident to arrest exception with its justifications, applying Gant to cases that permit automatic searches of containers on the person, and certain automatic home searches incident to arrest, serves to enhance privacy protections against these non-vehicular searches that have become police entitlements.
Part I outlines the judicial origin of search incident to arrest law and its schizophrenic history, exposes the fundamental conflict between the cases, and discuss the legal rules and reasoning of Gant. Part II argues that the standard governing Gant’s second holding is vague, and is concerned with whether the crime of arrest involves tangible evidence rather than a quantum of proof analysis prevalent in standards such as probable cause and reasonable suspicion. Part III analyzes the effect of applying Gant’s first holding to an automatic search of containers on the person incident to arrest, while Part IV applies Gant to certain automatic home searches incident to arrest. Part IV also addresses some Counterarguments and potential pitfalls. This Comment concludes that Gant’s retraction of the search incident to arrest power may serve to end, or at the least severely undermine, automatic searches of containers on the person and homes incident to arrest.
Singh, Angad. “Stepping out of the Vehicle: The Potential of Arizona v. Gant to End Automatic Searches Incident to Arrest beyond the Vehicular Context.” American University Law Review 59, no. 6 (August 2010): 1759-1795.