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Marcus Thornton’s case was not the most important Fourth Amendment car-search challenge in the U.S. Supreme Court in recent years. But his defeat last week was a piece in a puzzle whose complete picture will show there is little or no constitutional protection left for the privacy interests of those using automobiles, say many court scholars. And although Thornton v. U.S., No. 03-5165, won’t make the top 10 of all-time important Fourth Amendment cases, the decision revealed that even among justices who have restricted the amendment’s reach, there are some who are increasingly unhappy with parts of the vehicle-search doctrine. Concurring in the judgment in Thornton, Justice Antonin Scalia, joined by Justice Ruth Bader Ginsburg, wrote that the court’s effort to apply its search-incident-to-arrest doctrine to this particular case “stretches it beyond its breaking point.” Even though the Court has recognized for years a reduced expectation of privacy in the use of vehicles, Justice Potter Stewart once noted that the Fourth Amendment does not declare open season on automobiles, said criminal procedure scholar Tracey Macklin of Boston University School of Law. “But this Court has gotten as close as it can get to declaring open season without actually issuing licenses,” added Macklin, who filed an amicus brief supporting Thornton on behalf of the National Association of Criminal Defense Lawyers and the American Civil Liberties Union. Shashanka S. Upadye of Chicago’s Lord, Bissell & Brook, who filed an amicus brief supporting neither party, agreed with Macklin, adding, “When you look at the cases in their entirety, over a 20- to 30-year period, you see drivers don’t have any rights; people don’t have any rights in their purses or suitcases, and police can search trunks. Customs can literally destroy your car, not find anything and say you can put it back together. After a while, you start wondering, ‘What can I do in a car?’” OUTSIDE THE CAR The question in Thornton was more of an outside-of-your-car search issue. The Court took the case to resolve conflicting lower court rulings on whether a bright-line rule announced by the justices in 1981 allowing police to search a car incident to an arrest applies when the person arrested has left the vehicle. Three years ago, a Norfolk, Va., police officer became suspicious of Thornton, who was driving a Lincoln Town Car with tags licensed to a Chevy. Thornton pulled into a parking lot, parked his car and left it as the officer drove in behind him. The officer parked, went after Thornton and asked for his license. When Thornton appeared nervous and rambling, the officer asked if he had any narcotics or weapons on him. Thornton said no. The officer asked for and received consent to frisk Thornton. He felt a bulge in a pocket which revealed bags of marijuana and crack cocaine. The officer handcuffed and arrested Thornton and put him in the back seat of the patrol car. He then searched Thornton’s car and found a handgun. In New York v. Belton, 453 U.S. 454 (1981), the high court held that when a police officer makes a lawful custodial arrest of an automobile’s occupant, the Fourth Amendment allows the officer to search the vehicle’s passenger compartment as a contemporaneous incident of the arrest. Belton itself extended a 1969 ruling to automobiles. In Chimel v. California, 395 U.S. 752, the justices articulated the search-incident-to-arrest exception to the warrant requirement in a case where the arrestee was in his home. The scope of these searches, said the Court, was the person of the arrestee and the area immediately surrounding him. The Court stated two justifications for this exception: to protect the safety of the police officers and to preserve any evidence from destruction or concealment. In the high court, Thornton’s counsel, Frank Dunham, a federal public defender, argued that Belton is limited to situations where the officer initiated contact with an arrestee while the arrestee was still in the car. That position, he said, is consistent with the two reasons for a search incident to arrest. But the government argued that would encourage suspects to jump out of cars before the police initiated contact or would encourage police to rush contact with suspects before they leave the car, creating a “potentially explosive dynamic.” Scalia noted that court cases involving the Thornton factual scenario are “legion.” Some courts, he added, have upheld these searches even when the squad car carrying the handcuffed arrestee has already left the scene. “If it was ever true that the passenger compartment is ‘in fact generally, even if not inevitably,’ within the arrestee’s immediate control at the time of the search, it certainly is not true today,” he wrote, quoting Belton. Justice Sandra Day O’Connor, who concurred in part, agreed, writing that “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales” of Chimel. However, the 7-2 majority, led by Chief Justice William H. Rehnquist, said Belton‘s bright-line rule applies. Justices John Paul Stevens and David H. Souter dissented, with Stevens saying, “The only genuine justification for extending Belton to cover such circumstances is the interest in uncovering potentially valuable evidence. In my opinion, that goal must give way to the citizen’s constitutionally protected interest in privacy when there is already in place a well-defined rule limiting the permissible scope of a search of an arrested pedestrian.” But Rehnquist wrote, “In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle.” NOT-SO-BRIGHT LINE The scope of a search incident to an arrest has been a problem for the Supreme Court since “the beginning of Fourth Amendment time,” said Ronald Allen of Northwestern University School of Law, with the Court vacillating back and forth over how much authority an officer has on the basis of the arrest. “There is a larger issue floating over all of this, which is the simple rules versus all-of-the-circumstances kind of approach,” he said. “What the Court has pretty consistently done over the last 30 years is move away from discretionary calls for the officer on the street and move toward bright-line rules. That’s what’s going on in Thornton. “They’re searching for a bright-line rule to apply to the problem of the scope of search incident to arrest, and one problem has to be when you arrest somebody in or near a car,” he added. But bright lines in the law are hard to draw with really sharp edges, said Allen and others. The line that emerges isn’t always sensitive to the underlying justifications that gave rise to the exception — here a warrantless search, they explained. And that is what Scalia is really complaining about in Thornton, said Allen. The two justifications for search incident to arrest — police safety and preservation of evidence — generally are not present when the arrestee is handcuffed and secured in a squad car. “We’ve had 30 to 40 years of going to bright-line rules, and one of consequences is it will be overinclusive or underinclusive,” added Allen. “ Thornton, for example, is not the end of the story. There’s still the question of when a person is arrested in close enough proximity to a car that the search extends to the car. And what if he is arrested in his house and the car is in garage of the house?” IMPACT ON RIGHTS The importance of Thornton-Belton‘s impact on Fourth Amendment automobile rights is particularly stark when seen in combination with the high court’s ruling in Atwater v. Lago Vista, 532 U.S. 318 (2001), according to some Fourth Amendment scholars. In Atwater, the high court held that a warrantless custodial arrest for a misdemeanor punishable by a fine — here failure to wear seat belts — did not violate the Fourth Amendment. “ Atwater allows custodial arrest for any traffic violation, no matter how trivial,” said criminal procedure scholar Donald Dripps of the University of Minnesota Law School. “If that gets combined with Belton authority, since nobody can operate a car in full compliance with all traffic laws all of the time, it gives police the practical power to search a vehicle anyone is operating.” Boston University’s Macklin agrees, explaining, “In those states like Texas, Iowa and one or two others, a lot of police officers arrest for traffic offenses and Thornton is a real boon. If a cop asks to search the car and a person says no, he can say, ‘I’m going to arrest you,’ and then he can search the car.” Thornton was one of three Fourth Amendment auto cases decided this term. The other two were Maryland v. Pringle, No. 02-809, and Illinois v. Lidster, No. 02-1060. In Pringle, the Court held it does not violate the Fourth Amendment for a police officer to arrest all occupants of a car where drugs and a roll of cash were found in the passenger compartment and the multiple occupants all denied ownership. In Lidster, the high court upheld the constitutionality of a police roadblock with the primary purpose of investigating and seeking witnesses to a prior crime. NEXT TERM Next term in Illinois v. Caballes, No. 03-923, the justices will examine whether police must have “reasonable articulable suspicion” to conduct a canine sniff during a routine traffic stop. Thomas Davies of the University of Tennessee College of Law, whose Fourth Amendment writings are often cited in high court opinions, said he believes there is nothing left of the amendment’s protections in the automobile context. Besides extending the scope of search incident to arrest, he said, there is also the automobile-search exception, which allows police to search a car if they have probable cause to believe there is evidence or contraband inside. “There may be one situation where police still need a warrant,” he suggested. In a 1971 case, the high court examined the search of a car parked in front of the house of a suspect in the murder of a young girl. “The Court in that case said they needed a warrant. It was a parked car that he hadn’t been in recently,” said Davies. The whole notion that people have limited expectations of privacy in their automobiles is a “stretch” and should be re-examined, added Davies. Lord Bissell’s Upadye agreed, saying, “They use the lame argument that vehicles are pervasively regulated. Are you telling me a house is not? I understand the government has to do certain things, such as roadblocks. At the same time, you’ve got to think in today’s age, more people are driving and more business is being conducted from cars. I would think drivers assume they have some privacy in their vehicles, in their corporate trade secrets or the reports in their briefcase.”

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