GANT AND CARS: IS SCALIA OUR FRIEND?

UPDATE: We're sad to report ASA David Ranck was arrested last night on a contretemps involving a pizza delivery woman. He is presumed innocent. 

Before we begin, we take note of these petitions for cert:  Florida v. Powell  08-1175  and Florida v. Rigternik 08- 1229 in which the innocuous little question before the Scalia Court is  "must a suspect be expressly advised of his right to counsel before questioning, and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?"

A certain federal blogger "pooh-poohed" (a legal term derived from Latin, meaning "summarily dismissed with a condescending air of 'I know more than you' ") our contention that Justice Scalia was drawing his sights on Miranda.  Scalia's pronouncements on society's overriding interest in successful prosecutions, along with his dicta about Miranda rights "purporting" to come from the Fifth Amendment raised our suspicions. We shall see if we are right.   Anyone care to bet if Scalia votes to grant cert? Anyone?

We turn today to the Supreme Court's recent decision in Arizona v. Gant because: 1) certain federal bloggers argued it was proof of Justice Scalia's warm embrace of the rights of the accused and 2) a review of Justice Alito's dissent on the issue of stare decisis is warranted based on Alito joining the Majority in Montejo v. Louisiana   and Steven's dissent exposing Alito as an unprincipled jurist when it comes to precedent. 

We address today the question of just how concerned Justice Scalia is with the rights of the accused. Unfortunately for certain Federal Bloggers, they are much better trial lawyers  than analysts  of Supreme Court Justices, because as you dear reader shall see, Scalia is anything but a friend of the accused. 

First: STEVENS  not Scalia wrote the majority opinion, as was his right as the senior justice in the majority. Scalia was along for the ride on this one- and was a reluctant rider at best. 

Gant rolls back some of the leeway police officers have taken in searching automobiles incident to arrest. Specifically, when an individual is stopped and arrested and in custody in the back of a police vehicle (the court's opinion makes no distinction as to whether it matters if the client was beaten up at the scene or the station) the police may no longer search the vehicle incident to arrest under NY v. Belton  because the suspect no longer has access to the items in the vehicle. 

Don't get too excited however, because Scalia the collectivist hauls the court back with his concurrence. Rather than hold that unless the police have probable cause to get a warrant, the interior of an automobile can not be searched, Scalia posits that it's OK for the police to execute a warrantless search of the interior of a car if "unique to the circumstances" of the arrest it is reasonable to believe evidence relevant to the crime of arrest may be found in the car"  US v. Thornton, 541 US 615,  632 (Scalia, concurring). 

To get Scalia in the majority in this case, Stevens had to agree to incorporate Scalia's concurring opinion in Thornton. It would seem to most law students that when the police have probable cause to believe that a private place contains evidence of crime, the 4th amendment requires that they get a warrant. However Scalia leaves us with the less than bright line rule that  the police can search a car sans warrant  if they somehow think the car contains evidence of the crime relating to the arrest.  

 How police somehow arrive at the belief a car they have not searched will contain evidence of a crime, remains to be seen, unless it's Officer Kreskin at the scene. 

Scalia's concurrence: (or as Ronald Regan would say: "there you go again.")  Scalia says first look to historical guidance of what the Framers sought to preserve. "If that proves inadequate"  then  apply "traditional standards of reasonableness."  If ever you wanted to make sure that Scalia does indeed believe in a living and breathing constitution, and will abandon original intent interpretation of the Constitution when it suits him,  just re-read that last sentence.   

 

Query: What defines "traditional standards of reasonableness?"  Is it Justice Steven's definition, or Justice Thomas's definition, or Justice William O Douglas's standard? 

Answer: It means what Scalia individually wants it to mean.  It's  a subjective, emotional, result driven analysis, despite what he will otherwise argue. 

Scalia opines that the historical scope of an officer's ability to search a vehicle incident to arrest is "uncertain". Where does he justify that conclusion?   His recent concurring opinion in Thornton.

 See- this guy creates rules in one case, and then applies them in the next case, willy nilly. His concurrence in Thornton is arguably not even law, but that doesn't stop him. 

Is Scalia really a friend of the defense bar as certain federal bloggers insist? 

You tell me:

In my view we should  simply abandon the Belton-Thornton charade of officer 

safety and overrule those cases. 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.  Because respondent was arrested for driving without a license (a 

crime for which no evidence could be expected to be found in the vehicle), I would hold in the present case that the search was unlawful.

Certain federal bloggers have pointed with enthusiasm at Scalia's concurrence in this case as evidence of Scalia's concern with individuals, privacy, and the rights of the accused. Nothing could be further from the truth. (Practice tip- read the concurrence before citing to it).

Scalia himself admits he is a reluctant participant in the Steven's opinion:

No other Justice, however, shares my view that application of Chimel in this context should be entirely abandoned.  It seems to me unacceptable for the Court to come 

forth with a 4-to-1-to-4 opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and 

Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by JUSTICE STEVENS. The latter, as I have said, does not provide the 

degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I therefore 

join the opinion of the Court. 

There you have it. An impassioned plea for a per se rule allowing warrantless searches of vehicles so long as officer Kreskin somehow knows the interior of the car contains evidence of the crime for which the defendant was just arrested. 

Hardly sounds like an impassioned defense of privacy rights, the rights of the accused, and the 4th amendment.  But then what do we know? 

We went to  school on the wrong side of the Charles river. (*) 

Coming soon: Alito and stare decisis. 

(*) Don't get too excited. In our view, that means everywhere from Kenmore Square to the Pacific Ocean.