MOTORISTS ARE PEOPLE TOO: RECALCULATING THE VEHICULAR SEARCH INCIDENT TO ARREST EXCEPTION BY PROHIBITING SEARCHES INCIDENT TO ARRESTS FOR NONEVIDENTIARY OFFENSES

Rachel Moran, Chicago-Kent College of Law

Abstract

The United States Supreme Court must use Arizona v. Gant, for which the Court granted certiorari on February 25, 2008, as an opportunity to clarify the scope of the vehicular search incident to arrest exception by explicitly prohibiting searches which are not justified by the rationales of officer safety or evidence preservation, and which cannot uncover evidence related to the crime of arrest. To the extent that the Court’s 2004 decision in Thornton v. United States allowed a search only (at best) weakly justified by the rationales of officer safety or evidence preservation is problematic, the Supreme Court may simply use Gant to overturn that decision and hold that officers may search a vehicle only where they can present a demonstrable need to protect themselves or preserve evidence an arrestee might otherwise destroy. Many scholars have urged the Court to adopt this holding.

This paper, however, takes the position (unique among the scholarly community) that Thornton need not be overturned in order for the Court to create a new bright-line rule protecting the interests of vehicle occupants in the unique factual context of arrests for nonevidentiary offenses. Even if the Court decides that officers in the context of, for example, felony arrests for drugs or weapons possession need not make any affirmative showing of safety or evidence preservation concerns in order to search the vehicle, a rule weighing so heavily in favor of law enforcement officers is inappropriate in the distinct context of arrests for minor nonevidentiary offenses, in which no safety threat is present and where it is unreasonable to believe that evidence related to the crime of arrest will be found in the vehicle. Search of the vehicle in such an instance is simply unreasonable.