Jacob Sullum

In August 1999, police saw Rodney Gant pull into the driveway of his Tucson home and arrested him for driving with a suspended license. After handcuffing Gant and locking him in a cruiser, Officer Todd Griffith searched his car and found a bag of cocaine in the pocket of a jacket on the backseat. When he was asked at an evidentiary hearing why he searched the car, Griffith replied, "Because the law says we can do it."

Not anymore. Last week, the U.S. Supreme Court said police may no longer routinely search the vehicles of recently arrested people. It was a refreshing departure from a long line of cases in which the Court has whittled away at the Fourth Amendment's prohibition of unreasonable searches and seizures to make the war on drugs easier to wage.

Among other things, the Court has ruled that a search warrant can be granted based on information from an anonymous (and perhaps nonexistent) informant; that evidence obtained with an invalid search warrant can be used in court as long as police acted in "good faith"; that police do not need a warrant to monitor homes and backyards from low-flying helicopters; that police may use dogs to inspect luggage and cars without probable cause; and that government employees and public school students may be subjected to random drug testing.

The rule that police may search a vehicle without a warrant whenever they arrest someone who has recently been in the vehicle also came from a drug case. In a 1981 decision that, like Gant's case, involved cocaine found in a jacket, the Court declared, "When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile."

That broad rule had the advantage of clarity, but it went well beyond the goals the Court had cited in allowing warrantless "searches incident to arrest": preventing arrestees from grabbing weapons or hiding evidence of their crimes. Neither concern is plausible when an arrestee, like Gant, has been handcuffed and locked up before the search takes place.

Yet that is by far the most common scenario when police search the vehicles of people they've arrested. In other words, for 28 years police throughout the country have been routinely conducting searches that are completely unconnected to their constitutional rationale.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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