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University of Iowa News Release


April 22, 2009

Law professor says U.S. Supreme Court's Gant decision a mixed bag

A United States Supreme Court decision Tuesday is a partial victory for civil rights, said University of Iowa law professor James Tomkovicz, who wrote an amicus curiae brief in the case.

In Arizona v. Gant, the court ruled that law enforcement officers have the authority to search a vehicle following the arrest of a recent occupant "only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest."

But Tomkovicz said the court's fractured 5-4 decision did not limit officer's authority as much as he thought it should.  He expressed concern that ambiguities in the majority opinion actually could result in long-term damage to Fourth Amendment rights.

The case involved Rodney Gant, who was arrested by Tucson, Ariz., police for driving with a suspended driver's license. The arrest occurred in the yard of a friend's home after Gant had parked his car in the driveway. Officers handcuffed Gant and placed him in the back of a police cruiser while they searched his car, finding a weapon and a bag of cocaine. He was charged with possession of a narcotic for sale and possession of drug paraphernalia.

Gant was convicted of the drug charges, but the Arizona Supreme Court reversed the convictions after finding the evidence was inadmissible because the search of Gant's car was unconstitutional, the evidence found was inadmissible.

The U.S. Supreme Court agreed the search was unconstitutional because Gant was not within reaching distance of the car at the time of the search and it was not reasonable to believe that evidence relevant to the offense of arrest -- driving with a suspended license -- would be found within the car.

Tomkovicz said the ruling is surely a partial victory for civil liberties. Under prior rulings, lower courts have frequently upheld searches of vehicles when arrestees could not reach into the vehicles and when the offense for which they were arrested gave rise to no realistic possibility that evidence would be found in the vehicles.

"Even minor traffic offenses have often provided occasions for officers to rummage through passenger compartments and personal belongings in hopes of finding incriminating objects, even though they had no reason to fear for their safety, no basis for believing that evidence might be destroyed, and no grounds for concluding that the vehicle might conceal evidence or contraband," Tomkovicz said.

In Gant, the high court declared that searches of this sort are unconstitutional invasions of privacy.

But Tomkovicz warned the decision erodes civil rights insofar as it declares that officers do have the constitutional authority to search a vehicle that is not within an arrestee's reach whenever "it is reasonable to believe the vehicle contains evidence of the offense of arrest."

"What is certain is that when an occupant is arrested for an offense that could entail evidence, such as a drug offense, officers may search passenger compartments and the contents on less than probable cause to believe that they will find evidence," he said.

According to Tomkovicz, the majority deemed a search permissible if the vehicle in which the arrestee had been an occupant "might" contain evidence.

"Probable cause, which is the constitutionally prescribed standard, demands more than just a possibility of evidence," Tomkovicz said. "It requires a fair probability that evidence will be found."

Tomkovicz added that the split between the justices in Gant and the ambivalence and ambiguities of the majority opinion prove that the Supreme Court is sharply divided over the breadth of constitutionally legitimate law enforcement authority.

"The fact that four dissenting justices were willing to affirm the authority of officers to conduct thorough searches of vehicle contents following arrests for any offenses and no matter how close to the vehicle the arrestee is at the time of the search, suggests that the court could be one vote short of a majority that would dramatically curtail constitutional rights," Tomkovicz said.

STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Suite 371, Iowa City, Iowa 52242-2500

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