Sept. 29, 2008
Law professor Tomkovicz writes brief for case in upcoming Supreme Court term
A University of Iowa law professor is part of a team asking the U.S. Supreme Court to overturn a privacy rights precedent when the Court convenes for its new term next week.
James Tomkovicz has written an "amicus curiae" (friend of the court) brief in the case of State of Arizona v. Gant, which the Court will hear on Tuesday, Oct. 7, the second day of its term. He said the High Court's decision will help more clearly spell out when a police search of an automobile violates a person's privacy.
Tomkovicz will ask the court to reconsider its precedent from a 1981 case, New York v. Belton, that gives police the right to search a person's vehicle even if that person is not in the vehicle.
The case involves Rodney Gant, who was arrested by Tucson, Ariz., police and charged with driving with a suspended driver's license. Police arrested Gant in his yard, after he had parked his vehicle and was walking away. The officers then searched the vehicle and found a weapon and bag of cocaine, charging him additionally with possession of a narcotic for sale and possession of drug paraphernalia.
Gant was convicted of the drug charges, but the charges were later thrown out by the Arizona Supreme Court. The state is appealing the dismissal.
In his brief, Tomkovicz urges the court to overturn its precedent in the 1981 case because it fails to meet the constitutional standard of probable cause. In the Gant case, Tomkovicz points out that Gant was not in his automobile when he was arrested, and the police were not going to find evidence to support a charge like driving with a suspended license by searching it.
"In that situation, an evidence-gathering search is a wholly unjustified fishing expedition," Tomkovicz wrote.
As a result, he said the search violated the Fourth Amendment prohibition against unlawful searches and seizures, and that part of the Belton decision in 1981 that allowed the search should be overturned.
"A mere arrest for an offense that 'might' entail evidence does not, by itself, establish the 'fair probability' required for probable cause to search," he wrote.
Tomkovicz wrote the brief on behalf of the American Civil Liberties Union. It's the sixth amicus he's written for cases before the U.S. Supreme Court.
STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Suite 371, Iowa City, Iowa 52242-2500.
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