No law has ever been retroactive has it?

Just a dinosaur

quote:

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"[...] the key opinion to read is Scalia, as his concurring opinion provides the majority vote determining the outcome."

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Well thats an interesting way to look at it... here I was thinking that since it was 4-1 to 4, and nobody joined Scalia's concurrence, that his opinion was the least important. Couldn't you just as well say that any of the opinions were the most important, because if ANY of them changed the result would have changed.

Here is what Scalia said at the end of his concurrence:

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"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."

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To me that looks like Scalia doesn't agree with anybody and he is just holding his nose and choosing the "least bad" option... much like the rest of us do on election day.

But what did he say????

Hah, I like your election day analogy.

Did he say jsut because??

Just a dinosaur

It was not 4-1-4. It was 5-4. Scalia did not concur in the result only, he joined the majority opinion, and he did that purposely to avoid a 4-1-4 situation with no clear rule.

But Alex, the reason the 1 would be important in a 4-1-4 situation is because in a plurality opinion, the opinion with the narrowest holding is the one that controls. That's frequently the 1, although it doesn't seem like the case here. Scalia was saying the majority opinion didn't go far enough.

A question has been posed whether Gant applies retroactively. The clue might lie in Danforth v. Minnesota, from Feb 20 this year. The SCOTUS told us that Crawford did not apply retroactively. The majority went on to say that the better term is "redressability"--meaning that a violation of a constitutional right prior to the announcement of the new rule will not entitle the defendant to relief in federal court. The majority also pointed out the that states are free to provide more redressability than the federal courts.

JAS

But is it a new rule? Or was it just saying that Belton has been misinterpreted?

What do you think? New rule or not? I fear not!

JAS

I was just taking a cue from JTC. (And I'm far from razor sharp this morn; my head feels like a big balloon.)

Given the rationale of the opinion, I can see how they could say it's not a new rule. As you pointed out, this is just bringing the exception back to Chimel. The rationale for the exception doesn't seem to hold up when the defendant's already handcuffed in the back of the squad car.

But they do seem to limit the scope of Belton by tacking on a proximity requirement. I say "seems" because Belton referred to search of the area that "was" in the immediate control of the defendant. Gant, on the other hand, says the defendant has to have access at the time of the search. I guess it depends on your definition of "was" to determine whether this is a "new" requirement.

And they do tack on the "reasonable belief" requirement that previously existed in Scalia's concurring opinion in that "T" case (I get my Thorntons and Thompsons mixed up). Hopefully that's enough newness to avoid retroactive application. Of course, this doesn't change the fact that it does appear the result was dictated by Chimel (though maybe not Belton).

And I think you're right that the key will be how Danforth (and how it explains Teague) would apply to this situation

[This message was edited by David Newell on 04-23-09 at .]

Ok, so if we say it really is a new rule (and that is a good argument, seeing as how both majority and dissent had to talk about stare decisis), then it will apply to all cases that are not final on direct appeal. Right? Unless the CCA decides that we need to give more expansive protection. If it is not a new rule, then we can see writs challenging old cases on this basis. Right?

What bothers me a bit about this (and this may not make sense to someone who’s never worked in law enforcement) is that it makes a few assumptions out-of-hand.

Search of the arrestee’s area incident to arrest: In a pedestrian setting, you arrest the guy (ideally handcuff him), then search him and the area around him. You check the ground, under the furniture or maybe inside it if you’re inside, open the closet door, whatever. Every situation is different but the idea is of course to find stuff that he shouldn’t have or might hurt you with. Sometimes you get the baggie of whatever that he shoved somewhere right before you turned around and arrested him. The very language of Chimel indicates that the idea was to prevent the concealment or destruction of evidence. You didn’t have to know the guy was about to destroy it, or even know it was there. Who knows what people are hiding or what they plan to do? But you got to look for it, while standing there. Of course if you walk the guy out to your car and then come back inside his house and search it, the exception didn’t seem to apply.

What’s odd about this vehicle situation is that on the one hand, a vehicle’s mobility makes it more important to be able to examine it without judicial approval – hence the PC-based search for evidence which you couldn’t do in a house, for example. But on the other hand, there is no practical way to arrest someone in his car and go on to search it while he’s still inside it. This was the rationale that was used in many a police academy to explain the post-arrest search of an arrestee’s car.

Yes, probably 90% of the time or more, when someone’s arrested out of a car, it will be a patrol officer of some kind doing the arresting. The arrestee (driver or not) will be removed, possibly frisked right away, handcuffed, moved away from his car, searched more thoroughly, and placed in the back of the patrol car. Then (prior to this case) the search of the arrestee that began earlier would be extended to the area where he was just sitting three minutes earlier. No, he’s no longer in the car. But how could you search it while he is in there?

On paper, the reasoning of this case is pretty sound. But the way certain things are simplified down in the name of creating a new “rule” is a bit troubling. Officers are going to have to be trained on the "new" law, and given new guidelines to follow. But the real world is far more complicated than this case would lead one to believe. Not every arrestee is able to be secured in a locked patrol car thirty feet away. Not every arrest is made by a patrol officer, or one with a cage in his car. How far away is too far for a guy to run back and try to chew up his dope? What if you arrest the driver on a warrant for an offense that could involve the possession of contraband, but all you saw him do was fail to wear a seat belt? I foresee a lot more suppression hearings in the future.

And, ultimately, it bothers me that criminals will correctly see this case as a chance to let them pitch their weapons or dope in the back seat while the officer is off running their suspended licenses or checking for their outstanding warrants. Because of the impractical nature of trying to search an arrestee’s vehicle while he’s still sitting in it, the end result will be the arrestee will have GREATER protection against a search incident to his arrest while he’s sitting in his car than he would have if he were seated on his couch at home. And that seems to fly in the face of other well-understood automotive search guidelines.

So, if the rule is not redressable, but in essence retroactive (since it applies to traffic stops before yesterday that have not reached final litigation), could this be a place where Texas would have inevitable discovery? The officers searched, legitimately at the time based on the current caselaw, the passenger compartment of the car, and found the dope that they would have found later through an inventory search. The Garcia rationale wouldn't apply because 38.23 shouldn't apply to police acting according to the law at the time, which allowed for car searches incident to arrest, right?

Thanks AndreaW I think I understand now.

I am dealing with this issue right now on a motor vehicle stop and search that is very similiar to the facts in Gant. My case happened in August of 2008. Just my opinion - I don't think Gant is retroactive. I have read US v. Peltier, 422 US 531 (1975), Pearson v. State, 587 S.W.2nd 393 (Tex.Crim.App. 1979), and State v. Swink, 617 S.W.2d. (Tex.Crim.App 1981) and it is clear to me that expansions of the court created exclusionary rule are not to be applied retroactively. The cases specifically mention the deterrent effect of the exclusionary rule being negated if you try to penalize officers for doing something that was lawful when they did it. The cases also mention the exclusionary rule not being a right but instead being a court created judicial remedy to deter willful or neglegent violation of an individuals rights by law enforcement. The question is whether Gant is new law or whether it is clarification of existing law (Belton and Chimel). I have researched Texas law and found a long line of cases from at least 1967 (Lane v. State, 424 S.W. 2nd. 925 1967) that follow a "bright line rule" that interior compartments of motor vehicles are within the scope of the search incident to arrest. That has been changed by Gant. As such, at least in Texas, Gant is new law and there has been an expansion of the exclusionary rule. Retroactively punishing law enforcement for following 40 plus years of clear well settled case law serves no deterrent purpose. Under the rational of Peltier, Swink and Pearson, Gant should not be retroactively applied. At least this is what I argued to a judge this morning

[This message was edited by Mike Waldman on 04-27-09 at .]

My concern is that the opinion specifically states that law enforcement has violated the constitution for the 28 years Belton has been in existence. Is case law that "apparently" has misinterpreted Belton over these past 28 years good case law? How is it punishing law enforcement by following Gant on all pending cases? Throwing out cases that rely on the misinterpretation of Belton does not seem like punishment to officers? We have had these same discussions in our office and have no bright line solution? How are other offices handling it?

Below is a memo I have prepared for law enforcement in my county. I am inviting constructive criticism from all concerned. It reads as follows:

Please send a copy of this memo to your officers /deputies / troopers so they will be aware of a new U.S. Supreme Court opinion severely limiting a search incident to arrest. The world of search and seizure as we now know it has changed and we need to change with it.

In this case, Rodney Gant was arrested for DWLI, handcuffed, and placed in a patrol vehicle. His vehicle was searched incident to the arrest and cocaine was found. He appealed his conviction for possession of cocaine.

The U.S. Supreme Court held that the search was illegal and limited the search of a passenger compartment of a vehicle following a lawful arrest to two situations:

1. When it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle. Examples of permissible offense-related searches:

a. Searching for alcoholic beverage containers after a DWI /alcohol-related arrest;

b. Searching for drugs or drug paraphernalia after drugs found on the suspect�s person or after a DWI arrest with no odor of alcohol

c. Searching for identification documents after an arrest for Failure to ID

d. Searching for evidence a vehicle has been hot-wired after an arrest for Auto Theft or UUMV.

(Obviously, while searching a vehicle for the reasons listed above, anything seen in plain view can be seized.)

2. When the arrested suspect is not secured and within reaching distance of the vehicle at the time of the search. (rare situation)

UNCHANGED by this opinion:

1. Your right to search a passenger compartment when you have consent to do so.

2. Your right to inventory the vehicle following a custodial arrest if your department has a written inventory policy regarding motor vehicles and your inventory procedure follows the policy.

3. Your right to search a vehicle when you have probable cause for a search, such as the odor of marihuana detected when the motorist rolls down his/her window.

4. Your right to search a passenger compartment prior to arrest when you have reasonable suspicion that an individual is dangerous and might access the vehicle to gain access to a weapon.

Ken,
I think your memo is a great idea and I certainly plan on using it. At the risk of turning a concise memo into a text on GANT, I would add two points:
1) Looking into to a car is not a search
and
2) Probable Cause for a search can still be developed post arrest, such as drug paraphernalia observed in plain view, the smell of marihuana during the inventory, admissions/comments by the arrested driver, admissions/comments by non-arrested occupants, ect.

Just my two cents.

An interesting concurring opinion in today's SCOTUS case, overruling a SCOTUS precedent covering a bright-line rule in confession cases. The concurring opinion points out that the dissenting (liberal) judges were quite happy overruling precedent (Belton) in the Gant case when it benefited the defendant but want to change the rules for treating stare decisis when it benefits the State.

To read the concurring opinion, click here and scroll down to Alito's concurring opinion. Mighty righteous stuff.