Divining and Designing the Future of the Search Incident to Arrest Doctrine: Avoiding Instability, Irrationality, and Infidelity

For over half a century, the scope of the “search incident to arrest” exception to the Fourth Amendment’s search warrant requirement re-peatedly expanded and contracted. In Chimel v. California, the Supreme Court attempted to stabilize the doctrine by limiting searches incident to arrest to the areas that needed to be searched to ensure officer safety and to preserve destructible evidence. In the more than thirty-five years since Chimel, however, the Court has again steadily increased the reach of the exception, allowing police officers to search areas—in particular, pas-senger compartments of vehicles—when arrestees have no realistic access to those areas.In the Supreme Court’s most recent exploration of the search incident to arrest doctrine, Thornton v. United States, Justice Antonin Scalia au-thored a concurrence that challenged the majority’s continued adherence to the twin rationales identified in Chimel, officer safety and evidence preservation. At least with regard to passenger compartment searches, Justice Scalia instead suggested that the Court should return to a prior justification, the interest in gathering evidence relevant to the crime that is the basis for an arrest. Based on this alternative rationale, he main-tained that a warrantless search of a vehicle incident to the arrest of an occupant is unreasonable when the arrest is for an offense that furnishes no reasonable basis for believing evidence might be found in the vehicle. On the other hand, he asserted that such a search is reasonable when the offense supporting the occupant’s arrest is one that engenders a reasona-ble basis for believing that evidence might be found in the vehicle.This article examines the ramifications of Justice Scalia’s proposed revi-sion of the search incident to arrest doctrine and assesses whether the consequences of that revision are consistent with core Fourth Amendment principles. The author finds merit in Justice Scalia’s conclusion that of-ficers should not be allowed to search a vehicle incident to the arrest of an occupant for a “nonevidentiary offense”—i.e., an offense of a nature that makes it implausible to believe that probative evidence could be nearby. The author disagrees, however, with Justice Scalia’s conclusion that a revived evidence gathering rationale can support a thorough vehi-cle search whenever an occupant is arrested for an “evidentiary of-fense”—i.e., an offense of a nature that makes it plausible to believe that probative evidence might be present. According to the author, the grant of automatic authority to search vehicles in such cases is inconsistent with the Fourth Amendment’s probable cause requirement. Because the mere fact of an arrest does not give rise to a fair probability that evidence will be found nearby, a search lacks adequate Fourth Amendment justification. The author concludes that a search of a vehicle incident to the arrest of an occupant for any offense is permissible only when there is good reason to keep the occupant in a location that affords access to weapons or evidence inside the vehicle. In such a case, presumed interests in officer safety and evidence preservation can justify the privacy invasion occasioned by a search.

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