Jacob Sullum

Last week, in an opinion by Justice John Paul Stevens, the Court said police may "search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." It added that a search also can be justified if police are looking for evidence of the crime that led to the arrest -- a rationale that did not apply to Gant and does not apply to the millions of other Americans who are arrested for traffic violations each year.

"A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense … creates a serious and recurring threat to the privacy of countless individuals," Stevens wrote for the five-justice majority, noting the danger of "giving police officers unbridled discretion to rummage at will among a person's private effects."

Notably, Stevens' opinion was joined by Clarence Thomas and Antonin Scalia, two justices who are often unfairly portrayed as hostile to civil liberties. In fact, Scalia wrote a concurrence that was less generous to the police than the majority opinion, calling routine car searches "plainly unconstitutional" and saying the Court should abandon the "charade" of pretending they're necessary to protect officers from hidden weapons, since "police virtually always have a less intrusive and more effective means of ensuring their safety" -- i.e., restraining the arrestee.

This is the sort of case that should make leftish civil libertarians rethink their reflexive antipathy to Scalia and make law-and-order conservatives rethink their reflexive support of the police.

Jacob Sullum

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