SEARCH AND SEIZURE: U.S. SUPREME COURT RESTORES OUR 4th AMENDMENT RIGHTS

It is sometimes said that the law of search and seizure is the bread and butter of criminal defense. The outcome of many cases is frequently determined by the facts surrounding a traffic stop and a search or prolonged detention that follows the stop. I like to comment on recent changes in the law. While the U.S. Supreme Court decision that I will be discussing in this posting was handed down back in April, it is still very recent when you consider the fact that it effectively overturned a case from 1981 establishing basic principles regarding searches of automobiles when the police make an arrest.

Before I get to the recent Supreme Court case, I must first discuss an older case from 1969 called California v. Chimel. In that case, the police showed up at Chimel's house with an arrest warrant. Chimel's wife let them in and they waited for Chimel to arrive so they could arrest him. When Chimel returned home, the police arrested him and then searched the entire 3 bedroom house and the garage. The search lasted about an hour and the police opened a number of drawers.

Here, although the police had an arrest warrant, they did not have a search warrant. Searches without a warrant are considered to be per se unreasonable under the Fourth Amendment of the U.S. Constitution. When the case reached the U.S. Supreme Court, the court said that the police's search of the entire house was unconstitutional. It also created a rule defining a "search incident to arrest." The court said that when the police arrest someone, they may search the area within the immediate control of that person for the purposes of officer safety and to prevent the destruction of evidence. So if it's an area that is within the arestee's reach, the police can search the area so that the arestee cannot grab a weapon or destroy evidence. The search must be contemporaneous to the arrest. The search doesn't necessarily need to take place after the person is officially arrested, but it must be close in time to the arrest.

Now we get to the case of New York v. Belton, which was decided in 1981. In that case, a single cop stopped a car for speeding. The cop made contact with the driver and asked for the driver's license and registration. At this point, the cop smelled marijuana and ordered all four people out of the car, patted them down, and arrested them. He separated all four suspects while he searched the vehicle. During the search, the cop found a bag of cocaine in the pocket of a jacket that was in the backseat of the vehicle.

When that case reached the Supreme Court, the court based its decision in part on California v. Chimel, which I discussed above. The court said that the cops can make a "search incident to arrest" even though the suspects were outside the vehicle. For years, courts across the U.S. interperted this decision broadly. The police took it to mean that they were entitled to conduct warrantless searches of all automobiles as long as someone was arrested, whether the inside of the vehicle was within their reach at the time of the search or not.

I never liked the Belton decision. It just didn't make a whole lot of sense to me. The whole reason the court said that a search incident to arrest was permissible was for officer safety and to prevent the destruction of evidence. If the suspects are in handcuffs and no longer in the vehicle, then how could they possibly grab a weapon that's in the vehicle or destroy evidence that's in the vehicle? This case became an obstacle for me when I was making search and seizure arguments in felony appeals at the Washington Appellate Project.

28 years after New York v. Belton, the Supreme Court has finally said that police can no longer search the suspect's automobile when the suspect is arrested, in handcuffs, and has no access to the automobile unless the police have reason to believe that there is evidence in the automobile related to the offense for which the suspect was arrested.

Just a few months ago, the U.S. Supreme Court decided the case of Arizona v. Gant. In this case, the police were aware that there was an outstanding warrant for Mr. Gant for driving on a suspended license and they were aware that his license was still suspended. They went to his house and saw Mr. Gant pull up in his vehicle. Mr. Gant got out of the vehicle and the police called him over to them. Mr. Gant walked over to the police. They put him in handcuffs and locked him in the backseat of a patrol car.

The police then searched his vehicle and found cocaine in the pocket of a jacket in the backseat, just like the cop in New York v. Belton. In April of this year the U.S. Supreme Court said that this situation is different than the situation in Belton for a few reasons. First of all, in Belton, there was only one cop and four suspects, who were not locked in patrol cars and were all within a short distance from the vehicle that was searched. In Mr. Gant's case, however, there was more than one cop and only one person who had been in the vehicle and the suspect was locked in the back of a patrol car, making it impossible for him to reach any weapons in his vehicle or destroy evidence. Second, the cop in Belton was looking for evidence related to a drug offense- the offense for which he arrested the four suspects. In Mr. Gant's case, there could be no evidence found in Mr. Gant's vehicle that is related to the offense for which he was arrested- driving on a suspended license.

The U.S. Supreme Court pointed out that because there was no reason to believe that Mr. Gant could reach a weapon in his vehicle or destroy evidence related to the offense for which he was arrested, there was no justification for a search incident to arrest. The court effectively overturned New York v. Belton.

The dissenting justices in Arizona v. Gant claim that the majority's opinion will make things confusing for law enforcement. They say that police officers have been taught for over a quarter of a century that they can always search a vehicle when they arrest someone who was inside the vehicle and the police should be able to rely on this long-standing rule.

I disagree. I believe New York v. Belton gave the police unbridled authority to search a vehicle with no justification. It gave them an incentive to make arrests when they would not otherwise have done so in order to have an excuse to search the vehicle with the hopes of finding some sort of incriminating evidence- basically a fishing expedition.

There is no reason for the police to be confused about this decision; they have to follow the rules regarding probable cause in all other situations. What's so difficult about them following the rules when there is a vehicle involved? All the court is saying is that the police must have a reason to believe that the suspect may be able to reach a weapon in the vehicle or there's evidence related to the offense for which the suspect was arrested in the vehicle. If the police already arrested the suspect, that means they already have probable cause. They just have to support their decision to search the vehicle by facts indicating that it is more likely than not that there is evidence of the alleged offense in the vehicle. What's so hard about that?

The dissenting justices also criticize the majority for overturning a prior Supreme court case (New York v. Belton). I agree that even though the majority claims that Belton has not been overturned, they really did in fact overturn Belton. But I don't see a problem with that. If the Supreme Court makes a poorly reasoned decision that is in conflict with the Constitution and limits the rights it guarantees, the decision should be reviewed and overturned. In my opinion, the Supreme Court overturning New York v. Belton was long overdue.

As a criminal defense lawyer, I consider this to be a major victory for anyone concerned with individual rights guaranteed by the Constitution. There seemed to have been a good deal of progress made with regard to privacy rights and the Fourth Amendment in the 1960s, but those rights appear to have been eroded by a number of Supreme Court decisions over the last couple decades. Arizona v. Gant is a case that has restored our Fourth Amendment rights to some extent. Interestingly, Justices Scalia and Thomas joined in the majority opinion in this case. These justices are conservative and tend not to reverse criminal convictions or join in opinions that limit law enforcement officers' ability to search you, your belongings, your home, or your vehicle.

QUASHING A WARRANT: WHAT TO DO WHEN THERE IS A WARRANT OUT FOR YOUR ARREST

Over the last few weeks, I have run into a large number of people who not only have criminal cases pending, but also have warrants out for their arrest. One of the most common reasons people find themselves in this situation is that they missed their court date. When this happens, it is considered to be an FTA (Failure To Appear). If you FTA, the judge will issue a bench warrant.

One of the most common reasons people miss their court date is because they do not keep the court informed of their current address. If you know you have a criminal matter pending, make sure the court knows your current address and that you check your mail regularly.

Many of the people I have talked to who have outstanding warrants are scared and don't know what to do. The only thing you should be worried about is getting picked up by the police. If the police stop you, whether you're in a vehicle or just walking down the street, for whatever reason, and they discover that there is a warrant out for your arrest, you will be taken into custody. No doubt about it- you are going to jail.

The best thing to do when there is a warrant out for your arrest is to go to the warrants calendar at the court in which your case has been filed and have the warrant "quashed". The word, "quash" is a middle English word that means to extinguish or destroy. In the legal context of a warrants hearing, to quash a warrant means to terminate or revoke the warrant. When you do this, the warrant will be gone and you will be given a new court date. Except for unusual circumstances, the judge usually quashes the warrant and gives you a new court date. You will be given a slip with that court date on it. Do not lose this slip; the court will not send you any further notice of your court date. Make sure you inform your attorney of the new court date.

Speaking of attorneys, defendants are usually not represented by a lawyer when they go in to quash a warrant. They usually just call up the court and find out the day, time, and courtroom number where the warrants calendar is held and just show up on their own. In Seattle, you must go to the clerk's office on the 3rd floor of the King County Courthouse on 3rd Avenue and ask to be added to the warrants calendar. Warrants are quashed every day at 2:00 p.m. in courtroom 1 at the King County jail. Yes, that's right- the jail. There is a courtroom in the jail specifically for quashing warrants and probable cause hearings. The courtroom for quashing a warrant in Seattle is in the jail, not the courthouse. But you have to go to the courthouse first to get added to the warrants calendar.

In some cases, the judge may require you to post bail in order for the warrant to be quashed. There is always a bail bondsman present at the warrants calendar at the King County jail. If you can't post bail, then the judge will just send you on your way with an outstanding warrant; people are rarely taken into custody at these hearings. But it does happen sometimes. If you have a history of FTAs or your case is particularly egregious, the judge may require bail or even have you taken into custody. On the other hand, if you accidentally missed just one court date and do not have a significant criminal history or FTA history, the judge probably won't require you to post bail or have you taken into custody. These decisions are made on a case-by-case basis.

The main fear that people have when they "turn themselves in" is that they'll be taken into custody. In many cases, you should not worry about that. The judge will most likely just quash the warrant and give you a new court date and you won't have to be constantly looking over your shoulder to see if a cop is behind you. But if you have a warrant out for your arrest and you chose to ignore it, you will certainly be taken into custody if you're stopped by the police and they run a warrants check. Do not make this mistake.