Under Arizona v. Gant, police who have arrested the driver of a car have authority to search the car’s interior when it is “reasonable to believe” that the car contains evidence of the crime of arrest. This holding is anomalous, since it allows for warrantless searches that are purely investigative. Yet the rule established in Gant is poised to expand. In the pending cases United States v. Wurie and Riley v. California (which I discussed here), the governmental parties argued in the alternative for the adoption of a Gant-like rule in the cell phone context. Thus, the Court is now considering whether to allow purely investigative searches of cellphones incident to arrest.
In this post, I’d like to complicate the historical picture that underlies Gant‘s embrace of purely investigative searches incident to arrest. The basic difficulty with that historical picture is this: it derives an authorization for searches from historical cases that govern seizures.
To support the idea of investigative searches incident to arrest, Gant cited Justice Scalia’s concurrence in the judgment
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Scalia and Thomas repeatedly have been shown to done the originalism cause dubious favors by providing a somewhat confused accounting of history.
On the issue of history and the 4A, Prof. Kerr has written some interesting things. Not sure what he said about this issue, but probably be interesting.
Posted by: Joe | May 30, 2014 1:24:02 PM
Just as a predictive matter, I don’t know that I see a majority to expand Gant. There only seemed to be one obvious vote for it, and enormous concern that officers could almost always say there’s reason to think evidence of the crime of arrest could be on the arrestee’s smartphone, though someone eventually pointed out that wouldn’t be the case in most traffic stops.
Posted by: Asher | May 30, 2014 1:04:12 PM
Speaking of history, ref: Maryland v. King, #12-207 (2012), Justice Scalia’s dissent concerning DNA evidence, quote: ” …the credulity of the credulous…” statement from Justice Scalia. Our Supreme Court’s Justice, Mr. Scalia doesn’t skim over the issues unquestioning, he is definitely a ‘thinker, and legal analyst’ with everything relating to the logical and legal relevancy of the issues at hand, law/legal wise, Justice Scalia is spot-on, much like the ‘founders’ of the Constitution. I, for one of the many, view Justice Scalia as one of the true ‘Guardians’ of our Constitutional Rights, and not that of one as a ‘gate keeper’ who ‘let’s this in or take’s this out’ of our United States Constitution. Justice Scalia is true defender for what our forefathers laid their bloody bodies down in the fields for…!He definitely will not be one of the ‘credulous’ when it comes to our Fourth Amendment Rights. In a time of history when, all that some of the people want to do is to chip away, little by little, our Constitutional Rights, until ‘We the People’ no longer have any rights left…! In the ‘Search and Seize’ legal arena, history is currently being made and Justice Scalia, along with our other Supreme Court Justices will surely go down in history, with their Wurie and Riley case decisions…!
Posted by: Skitch4 | May 30, 2014 10:26:45 AM