Don’t know much about the 4th amendment, but . . .

dukes_police.jpg

SCOTUS has taken a case to clarify when the police can search your car.  Well, not your car, unless there is an arrest warrant out on you and you are driving on a suspended license.  I’m guessing our reading audience does not include many like that, but you get the idea.

ANYWAY, under those circumstances, can the police search your car?   Even though I understand they must have probable cause that there were drugs in your car, I guess I thought that once you were under arrest for something (like an old warrant), the probable cause requirement was gone and they could search the car. 

I am guessing that will be the result, but I guess I am here expressing surprise that it was not already the case. 

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5 Responses to Don’t know much about the 4th amendment, but . . .

  1. jeffaregularworkinglawyer says:

    I haven’t read the Arizona opinion, but based on the Times story, there doesn’t seem to be any justification for a warrantless search. Even if there was probable cause to believe the the car contained evidence of illegal activity (not clear from the story that there was), the car could have been impounded until a warrant was obtained, and then searched. The usual “exegent circumstances” justification for a warrantless search of a car is that the driver can drive off in it — but that’s not happening when he’s handcuffed in the back of a squad car.

    LB — Do you seriously believe that once a suspect is arrested, ipso facto his car can be searched? How about his house? I’m disturbed that the Supremes are taking this — but maybe it doesn’t matter, since the exclusionary rule has already been pretty much eviscerated. How much worse can it get? And all you academics out there — WHERE’S THE OUTRAGE? (Thanks, Sen. Dole.)

  2. laurabethnielsen says:

    I believed it to be the case, I did not mean to imply I thought it was right. Blame my crim pro professor — oh, that’s right, I never took crim pro.

    BUT I am with you Jeff — OUTRAGED!

    PS — would a judge issue a warrant based on the facts as presented int he Times article?

  3. jeffaregularworkinglawyer says:

    Well, now I have read the Arizona opinion — Here’s a link:
    http://www.supreme.state.az.us/opin/pdf2007/CR060385PR.pdf

    Couple of thoughts — It’s a 3-2 opinion. I think the majority is absolutely right — but they admit that they are contrary to many other cases. The Supreme Court didn’t take cert to affirm this one. Second, the majority answers your question — they say no probable cause existed for a contraband search.

    This reminds me of the research project I once asked you to do — empirically, what do Americans believe about the Fourth Amendment? If you think an arrestee’s car can be searched without probable cause under all circumstances, I’m sure 95% of our compatriots do, too. But that ain’t the law (Still. Barely.), and it shouldn’t be.

  4. laurabethnielsen says:

    I’m happy to do that as soon as I am seated in the “Jeffaregularworkinglawer and His Firm’s Name Here” endowed research chair at the American Bar Foundation. Shall I have my development people call you?

    Kidding (kind of).

    I’d love to do that study — there was a guy I knew once who was doing this on “consent” searches. Can I remember his name? I will work on it.

  5. laurabethnielsen says:

    With shame, I admit to not knowing about this article by my most interesting colleague: Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 SUP. CT. REV. 153 which has a nice review of the literature on the psychology of coercion.

    In the spirit of fair use, I give you the main point: The empirical understanding of how people think about consent is ever differeing from the jurisprudential model.

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