From the President: A Great Reawakening

President's Column

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“The Fourth Amendment isn’t dead,” Gerald Goldstein used to say years ago. “It’s only resting.” Like Monty Python’s Norwegian Blue Parrot, he insisted it was just “pining for the fjords.” Goldstein really believed that parrot was alive. But only a few of us believed him. A whole generation of lawyers have grown up scoffing, “The Fourth Amendment? That’s something you guys had back in the ’60s.”

Yes, for years, we old-timers still pretended the Fourth Amendment was alive,1 even while legal scholars and courtroom defenders lamented it had kicked the bucket, shuffled off its mortal coil, run down the curtain, and joined the bleeding choir invisible. We had to. It was our job. But the Fourth Amendment looked very much like an ex-parrot.2 

That is, until April 21, 2009, when the Supreme Court handed down Arizona v. Gant,3 and ruled 5 to 4 (not the usual suspects) that the Fourth Amendment is not dead, it’s just been in a 28-year coma. Like Rip Van Winkle,4 it has come back (well, somewhat back), and it recognizes little of its surroundings.

Gant limits the power of police officers to search a car incident to a lawful arrest without a warrant, probable cause, some other recognized exception to the warrant requirement, or “reason to believe” that evidence relating to the offense of arrest would be in the vehicle. For almost 30 years, the bright-line rule of New York v. Belton5 was that an officer could search the passenger compartment contemporaneously with the arrest of an occupant of the vehicle. A generation of police officers grew up on that rule. Key to Belton was that the officer was on the New York Thruway, alone with four suspects, and there was a serious safety issue. Never mind that the “key” was missing from nearly all post-Belton cases. And, the Supreme Court passed on numerous chances to clarify Belton, probably because there were no sure five votes to deal with limiting Belton, at least until now.

Predictably, on the police blogs, there was mourning and anger but, tellingly, also a great deal of “so what?” Some cops were philosophical, such as the user calling himself “Outcast” on

Belton was great case law. I never exactly understood why the courts, normally very liberal,[]6 gave us such leeway. I always felt that someday they would take it away. It was too good to be true, forever. I dug it while I could.7 

Now there’s a level-headed cop. In the same comment thread, “Rebelranger79” reminded his colleagues that there is more than one way to skin a suspect:

Let’s not forget a consent search. Inventory works, but why not just ask? You never know. In my experience, 90 percent of people say yes anyways.8 

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Experience tells us that Rebelranger 79 certainly is right. People stopped will consent, without a second thought. Maybe because they believe that they have to? That the officer will search anyway?

Praise for the ruling has come from some strange directions, too. In an editorial, Salt Lake City’s conservative Deseret News, owned and operated by the Mormon Church, called the decision “a victory for personal rights.”

The court’s decision in Gant should set the stage for greater protections against unreasonable vehicle searches. It does not preclude police from otherwise conducting searches, but it establishes that warrants will be needed except under limited circumstances. And unlike the Belton decision, the court’s ruling in Arizona v. Gant leaves no room for convenient interpretation.9 

The Bowling Green (Ky.) Daily News also applauded the decision, saying, “Searches of vehicles should be done in a fair manner that provides the individual constitutional protection against unreasonable search provided in the Bill of Rights.”

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In a sweeping turnaround from the days of zero tolerance, the paper said, “We appreciate society’s desire for effective police work and understand the delicate balance that must be struck between that and individual rights.”10 

If the Court erred in weighing that balance, the Daily News said, “We are glad they saw fit to come down on the side of individual rights.”11 

On my own blog (, I called the case “a rare win for logic”:

Chimel [v. California], after 28 years, is finally returned to its roots. As I have argued repeatedly on this blog, and many times since Belton was decided, Belton is now limited to its facts and situation — search incident is no longer a license to search a car on the officer’s whim, and there has to be possible evidence to be obtained.12 

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NACDL’s amicus curiae brief in support of Rodney Gant, ably written by an all-star cast of Jeff Fisher, Pamela Karlan, Amy Howe, Kevin Russell, and Tom Goldstein, argued that Belton should simply be overruled, based as it was on a “legal fiction” — that a suspect handcuffed and locked in a patrol car might escape and grab a weapon or destroy evidence in his own vehicle. Or as Justice Scalia put it, concurring in Thornton v. United States,13 such a notion “calls to mind … the mythical arrestee ‘possessed of the skill of Houdini and the strength of Hercules.’” Untethered from any actual need for officer safety or evidence preservation, the Belton rule quickly was found to exist mainly to allow abuse, with a wink and a nod from the courts.

The Court has allowed arrests in recent years for the most minor of traffic offenses — failure to buckle up,14 for example — and even if state law prohibits arrest for a minor traffic offense, the Court decided just last Term that the Fourth Amendment still allows the government to prosecute for the fruits of a search incident to an arrest in violation of state law as long as the Fourth Amendment was not violated.15 

Although the Court declined to explicitly overrule Belton, the effect of this decision pretty much guts Belton as it applied on the street. Once a driver is handcuffed in the back of the police car, the police can no longer automatically search the passenger compartment, the trunk, or their contents.

And in the blogosphere, many cops don’t see Gant as a real problem. As author and former street cop Peter Moskos posted on his blog: 
The real-world implications of [Gant] will be small. In my experience, most searches of cars happen not incident to arrest but technically to “inventory” belongings when the car is towed. …
But I’m always pleased whenever the courts extend Fourth Amendment freedoms of citizens. It doesn’t happen too often.16 

Note that the former cop put “inventory” in quotes. If the Fourth Amendment was really dead, he wouldn’t have to do that.


  1. I’ve been working on Search and Seizure (4th ed. forthcoming 2009) since 1979. I’ve worked on every day since February 2003. Clearly tilting at windmills.
  2. “You know, most men would get discouraged by now. Fortunately for you, I am not most men!” — Pepé Le Pew.
  3. __ U.S. __, __ S. Ct. __, 173 L. Ed. 2d 485 (No. 07-542, April 21, 2009), by Stevens, J.
  4. Washington Irving, “Rip Van Winkle” (1819).
  5. 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).
  6. What planet has he been living on?
  7.; comment by Outcast (April 23, 2009) (bracketed material added).
  8. Id., comment by Rebelranger79 (April 23, 2009).
  9. Editorial, A Victory for Personal Rights, Deseret News (April 26, 2009).
  10. Editorial, Court Ruling Protects Rights of Individuals, Bowling Green Daily News (May 5, 2009).
  11. Id.
  12., SCOTUS: Search incident for driving on a suspended license violates Fourth Amendment: Arizona v. Gant; Belton limited like it should be (April 21, 2009).
  13. 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004).
  14. Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001).
  15. Virginia v. Moore, __ U.S. __, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008).
  16., Arizona v. Gant (April 22, 2009).