Just one cheer for the Court.

Whatever one's ideological bent, it is frustrating to see the Supreme Court build a doctrine on the shifting sands of illogical reasoning. Thornton v. United States, (1) with its expansion of the illogical "search incident to arrest in automobiles" doctrine laid down in New York v. Belton, (2) is such a case. But Justice Antonin Scalia's recognition of the doctrine's illogic in his concurring opinion, and Justice Sandra Day O'Connor's refusal rejoin a footnote in the majority opinion writing off Scalia's objections, earn the Court modest applause, with the hope that a rational ruling may be in our future.

In Thornton, a police officer spotted a car with license tags that had been issued to another car. Before he had a chance to pull it over, the driver drove into a parking lot and got out of his car. When confronted with the license plate discrepancy, the driver appeared nervous, and the officer asked permission to frisk him.

Feeling a bulge in one of the defendant's pockets, the officer asked if he had narcotics on him. The defendant admitted that he did and pulled out two bags of marijuana and one of cocaine. The officer arrested and handcuffed him, and put him in the back of the police car. The officer then searched the car and found a gun under the driver's seat. (3)

The only issue before the Court was whether an automatic search of the car incident to the arrest was justified when the suspect had exited the car before his encounter with the officer. A possible claim that the car search was based on probable cause was not before the Court.

Seven justices agreed that the search was appropriate, but Justices Scalia and Ruth Bader Ginsburg, while concurring in the result, refused to subscribe to Chief Justice William Rehnquist's majority opinion. Justices John Paul Stevens and David Sourer dissented. O'Connor joined all but footnote 4 of the majority opinion, giving as her reason that this was the "wrong case" to address Scalia's concerns because they had not been raised or briefed by the parties. (4) Despite her refusal to join footnote 4, O'Connor seemed to agree with it, declaring that while she liked Scalia's reasoning, she was "reluctant to adopt it" where the parties had not briefed the issue. (5)

Ignoring for the moment that it was based on illogical doctrine, the majority opinion was straight forward and sensible. The Belton Court had held that when a police officer legally arrested an automobile occupant, "he may, as a contemporaneous incident of that arrest, search the passenger compartment without any basis of suspicion for doing so." (6)

Because Thornton was not literally in the car when he was arrested, the question was whether the Belton search-incident-to-arrest rule should apply to him. Thornton argued that it should not because searches incident to arrest should be allowed only when the officer "confronted or signaled confrontation with the suspect while he remained in his car." (7)

As the Court noted, this "contact initiation" rule "would be inherently subjective and highly fact-specific," and would require precisely the sort of ad hoc determinations by police officers in the field and reviewing courts that Belton sought to avoid. (8)

The Court further observed that Belton applied to both "occupants" and "recent occupants," since when Belton's car was searched, "he was not inside the car [but] standing on the highway." (9) Accordingly, the Court held that "so long as the arrestee is the sort of 'recent occupant' of a vehicle such as petitioner was here, officers may search that vehicle incident to the arrest." (10)

Stevens pointed out in his dissent that Belton was a major expansion of Chimel v. California, (11) oil which it was based. Chimel permitted the police to search houses and open containers found in vehicles. Stevens objected to even further expansion. (12)

I agree with the Court that as long as the Belfort rule is in place, if police officers know that a suspect has recently exited a car, having a different rule would complicate matters unduly. The question of who is a "recent occupant" will muddy the waters somewhat compared to a rule limited to "occupants." What if the occupant ruins from the car and the police only catch him or her after an hour's pursuit?

What if police reasonably believe that someone was a recent occupant, but it turns out that he or she wasn't? Still, the Court's rule is more straightforward titan the petitioner's proposal, which would require probing the minds of both the police and the suspect. (For example: "Was the suspect aware that you had signaled him to stop before he got Out of the car?" Answer: "I think so.")

Immediate control

But the bigger question, which Scalia addressed in his concurrence, is whether the Belton rule ever made any sense. Supposedly, the search-incident-to-arrest rule is an exception to the warrant requirement, "justified by the need to remove any weapon the arrestee might seek to use to resist arrest or to escape, and the need to prevent destruction of evidence." (13)

When a person is arrested at home, according to Chimel, the police may search both the person and "the area within his immediate control," where he might be able to grab a weapon or destroy evidence. (14) Belton expanded Chimel to include the passenger compartment of a car and all containers found in it, even though once the occupant is out of the car, the passenger compartment is no longer within his immediate control.

But if someone is arrested at home and handcuffed, there is also no area within his immediate control--so neither Chimel nor Belfort would make sense in most of these situations. Nor does either case explain why arrests for charges such as bail-jumping or a traffic violation, for which there is no evidence to be found, should give rise to an evidentiary search at all.

The contentious Scalia pointed out that this doctrine, which has been in place since 1969, is bereft of logical clothing. As he observed, quoting Fifth Circuit Judge Irving Goldberg, an arrestee would need "the skill of Houdini and the strength of Hercules" to elude the police after being arrested, get into the car, and grab a weapon or destroy evidence. In fact, the government was unable to point to a single instance of that happening. (15)

Instead, harking back to the pre-Chimel case of United Stales v. Rabinowitz, 16) Scalia proposed that vehicle searches incident to arrest of their occupants or recent occupants must be justified as evidentiary searches rather than as safety precautions; they should be allowed only if the officer has a "reasonable belief that evidence would be found" in the vehicle. (17) Because the officer, having found drugs on Thornton, had a reasonable belief that there might be drugs in the car, Scalia agreed with the majority's decision to affirm the conviction.

Scalia's proposal is a good one as far as it goes: The officer is entitled to fully search the arrestee to ensure the absence of weapons. But to allow a further search of the automobile claiming that the arrestee--ordinarily handcuffed and in the police car, or even removed from the scene--might somehow get back into the car is ridiculous.

Under Scalia's proposal, people arrested for traffic offenses would not be subject to car searches simply by virtue of the arrests. This would discourage so-called pretext traffic arrests where the police officers' true propose is to search, not to enforce traffic laws--a sleazy practice encouraged by Whren v. United States, (18) which allows pretext arrests.

The difficulty with Scalia's proposal is that its logic applies equally to arrests in homes. In fact, Rabinowitz, on which Scalia relies, allowed the full search of a home where there was "reason to believe" (not even probable cause) that there was evidence to be found. Chimel, limiting searches incident to arrest to the area within the immediate control of the arrestee, was designed to limit such searches and force officers to get warrants if they wanted to search further.

The problem with Chimel is the same as with Belton: There often is no area within the immediate control of an arrestee, and courts have therefore been forced to guess about the extent of the Chimel search. (19) Belton, by expanding the search incident to the passenger compartment of automobiles, where there was no possibility of the defendant's getting in to cause mischief, has suggested to some courts that Chimel permits broader searches in homes as well. (20)

Scalia denies any desire to overturn Chimel with respect to homes, (21) but the logic of his proposal, and his disinterment of Rabinowitz, suggest that if Belton is reconsidered, Chimel may be as well.

As Scalia points out, auto mobiles, with their "reduced expectation of privacy," may be a special case. Nevertheless, Chimel, with its confusing "area within immediate control" test, and its failure to distinguish between a justified search of the person and the often-unjustified search for evidence of even unrelated crimes, has created a lot of bad law and should also be reconsidered.

If the Court does return to the general issue of searches incident to arrest, as Thornton suggests it may, it should be handled as follows: First, Chimel's "area within immediate control" approach should be abandoned, and the automatic, suspicionless, search incident to arrest should be limited to the person of the suspect, including any containers found on him, as Robinson v. United States (22) currently permits. There was no dispute among the justices in Thornton that a full search of the person is allowed.

As for automobiles, once it is recognized that there is no meaningful protective component to the search incident to arrest, the arrest of the individual from, or near, an automobile is irrelevant to the police officers' desire to search it, unless there is real danger ("exigent circumstances"). If officers have probable cause to search the vehicle, they can. If not, they can't.

There is no reason to reduce the search standard to "reason to believe," as Scalia suggests, just because of an arrest. Arrests for some crimes, such as bank robbery or selling drugs, will frequently create probable cause that evidence is in the car, as it did in Thornton. Arrests for traffic offenses rarely will.

Searches of homes are more complicated. Chimel suggests that if an area of the residence is outside the suspect's immediate control, the police must get a search warrant if they have probable cause. But given that the police are already inside the home and can conduct a protective sweep to flush out potentially dangerous accomplices, (23) it seems unduly picayune to insist that they stop the proceedings and obtain a search warrant. This rule simply encourages the police to lie, claiming that evidence found in drawers and boxes was in plain view during the arrest and protective sweep.

Accordingly, a search of the entire home should be allowed, limited by what the officers have probable cause to search for, when police have probable cause to search during or following an arrest. No distinction should be made between probable cause that the police had in advance and probable cause that developed during the search. (24) While this may have a tendency to encourage the police to obtain only an arrest warrant when they should also have a search warrant, they do not gain much from doing so because they will still have to establish probable cause to a magistrate, or an exigent circumstance, in order to enter the home. (25)

This is a rule the police could live with that's based on a logical foundation. It might persuade a majority of the Court. Or the justices (and you, loyal readers) might all hate it for different reasons.

Notes

(1.) 124 S. Ct. 2127 (2004).

(2.) 453 U.S. 454 (1981).

(3.) 124 S. Ct. 2127, 2129.

(4.) Id. at 2132.

(5.) Id. at 2133 (O'Connor, J., concurring in part).

(6.) 453 U.S. 454, 460.

(7.) 124 s. Ct. 2127, 2132.

(8.) Id.

(9.) Id. at 2131 (citations omitted).

(10.) Id. at 2132.

(11.) 395 U.S. 752 (1969),

(12.) 124 S. Ct. 2127, 2138-40 (Stevens, J., dissenting).

(13.) Id. at 4.

(14.) Chimel, 395 U.S. 752, 763.

(15.) 124 S. Ct. 2127, 2134 (Scalia, J., concurring in the judgment.)

(16.) 339 U.S. 56 (1950).

(17.) 124 S. Ct. 2127, 2137 (Scalia, J., concurring in the judgment) (quoting Rabinowitz, 339 U.S. 56, 62-63).

(18.) 517 U.S.806 (1996).

(19.) See WAYNE R. LAFAVE, SEARCH AND SEIZURE [section] 6.3. (3d ed. 1996).

(20). Id. at 311.

(21.) 124S. Ct. 2127, 2137 (Scalia, J., concurring in the judgment).

(22.) 414 U.S. 218, 236 (1973).

(23.) Maryland v. Buie, 494 U.S. 325, 337 (1990).

(24.) This would avoid the problem the court faced in Horton v. California, 496 U.S. 128, 138 (1990), where it held that requiring the police to establish that the finding of evidence in plain view was "inadvertent" was unworkable.

(25.) I recognize that the arrest warrant is less subject to "ripeness" problems, but I can live with this for the sake of coherent doctrine.

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].