After a long sleep the Supreme Court awakens to reality!

Posted by Joel Friedlander | No Comments

The Fourth Amendment to the United States Constitution provides:

“ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Today the United States Supreme Court took a step back from its gradual evisceration of the 4th Amendment with a decision that held, in a case where a person had been arrested for driving with a suspended license, and had been handcuffed and placed in a police car before a search of his car began which turned up cocaine in one of his coat pockets, that:

“Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believethat the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18.” saying that:

(a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz vs United States, 389 U. S. 347, 357. The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763. This Court applied that exception to the automobile context in Belton, the holding of which rested in large part on the assumption that articles inside a vehicle’s passenger compartment are “generally . . . within ‘the area into which an arrestee might reach.’ ” 453 U. S., at 460. Pp. 5–8.”

When I read this opinion it was almost as if the members of the Court had awakened from a very long sleep in which the rights of the citizens to be protected against police power and the power of the state had been forgotten.  What the Court has forgotten in the past few years, in opinions which stated that the “Fruit of the Poison Tree,” Doctrine was unnecessary because the police did not violate arrestee’s rights, is that the reason those rights were not violated was the police knew that if they violated rights their case would go out the window.  America was protected by the restrictions upon the police and it was those restrictions that made our rights meaningful.

It was almost as if the Court had forgotten the difference between a “Walled City,” and a “City with a Wall.”  A City with a Wall is a city which can exist with or without the wall and does ot need it for its very survival, but a Walled City is a City which must have the Wall to exist because of threats from without.  Our American rights cannot exist without limits on the behavior of the government.  This is true of the police certainly, and of course we all know what has happened to us when the government decides that it will abridge out liberties to protect us against outside enemies.

Most remarkable of all is that it was a 5 to 4 decision and for once Justice Scalia and Justice Thomas joined Justices David H. Souter and Ruth Bader Ginsburg in Justice Stevens’s majority opinion.  Justices Samuel A. Alito, Jr., was joined in dissent by Chief Justice John G. Roberts, Jr., Justice Anthony M. Kennedy, and hold your breath, Justice Steven G. Breyer – usually a man supporting the rights of the citizens.  Justice Breyer felt that the Court was overruling the 28 year old precedent from the Belton Case, which would “… would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search.”
Thankfully, the Court finally realized that it had gone too far in giving power to the police and reversed itself before it was too late.

There may be hope for this Court yet, although Justice Stevens is 89 years old.  Who is going to take his place?

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