Tuesday, April 28, 2009

Prosecutors: Desperately Seeking Exceptions

While it would seem obvious to most lawyers that you shouldn't be able to search a person's vehicle incident to arrest using the officer's safety as an excuse when the guy is in handcuffs and already in the police car, and then based on the results of that search arrest the guy for something unrelated to why you pulled them over in the first place, it took the US Supreme Court to tell the various states that in the future they'd probably better make up better excuses to violate the 4th Amendment.

There have been several discussions around the blogs on what Gant means, but mostly from the defense side. Is there a difference between the two perspectives? Not really, but it's just interesting to see the same discussion from the prosecutor's side.

There's not a whole lot of gnashing of teeth, because as a few prosecutors point out they always have the inventory exception. So, never fear cops and prosecutors, you just have to wait until the "inventory search" (yet another exception that has helped swallow the rule, assuming you actually have any belief in the Constitution) before searching a vehicle for evidence and arresting the guy for something that had nothing to do with the broken tail light or unsafe lane change that you pulled him over for in the first place.

God forbid you do your work ahead of time and actually get a warrant for evidence of the crime that you're really searching for when you pulled the guy over in a pretextual stop in the first place. Restoring the 4th Amendment completely would just make your jobs too darn hard, I guess.

On a side note, there are plenty of other gems in prosecutors' comments on various topics. One poster claims to have challenged defense lawyers to post some of the most often witnessed ethical violations by defense lawyers, but nobody took him up on it. Imagine that, on a board more biased than FOX News people don't want to contribute grapeshot to the cannon that will only make them fodder. The same guy goes on to note that he's more than happy to present prosecutors' weaknesses, and includes Brady violations as the number one violation by prosecutors. I imagine Arthur Seaton will be crying himself to sleep based on that revelation. But the real catcher--the guy used Ted Stevens as his example! Sure, what was done to Stevens is worthy of investigation and if necessary prosecution. But that kind of thing happens on a daily basis across the country and Harris County is certainly no stranger to it, but there's no way a prosecutor is going to admit that evidence was withheld from the average black criminal defendant. I mean, Canadians are never wronged at trial, but Republican Senators? Man, those guys are persecuted every time.


jigmeister said...

Actually Rage, as a retired prosecutor who taught 4th amendment law for years, I think this decision clarifies things. A complete auto exception was rationally confusing, even to police. You could though, see more arrests, particularly in small jurisdictions, for minor traffic violations in order to inventory. I don't think you will see it in Houston where the police normally follow established policies. It may, however, mean fewer pretext stops. We'll have to wait and see.

It doesn't mean that the prosecutor's job changes at all. Charges were always evaluated on the basis of current law. It certainly doesn't mean more search warrants. Remember if there is probable cause to search a vehicle, a warrant isn't necessary, and it takes probable cause to get a warrant.

Rage Judicata said...

Absolutely it clarifies things. It tells cops that they cannot use the "safety" exception in some instances--instances that should never have been allowed in the first place because the safety issue was a farce in the first place. It was just a legal fiction used to punch another hole in the 4th Amendment under the guise of safety.

Although HPD follows policies that basically eliminate the exception by removing the suspect immediately, I was amazed to see one or two prosecutors in the TDCAA thread flirt with the idea of leaving the guy in the car just to excuse the search. It's unimaginable that they would risk the officer's safety just to maintain any excuse to search a vehicle. They whine and cry about public safety and locking the bad guys up, but consider endangering an officer? If I was a local cop I'd find out who they were and let them know in no uncertain terms what I thought about that.

A search incident to arrest was always the way to get out of "needing" probable cause. Gant should mean fewer pretextual stops, and I think that's one of the main goals of the decision, but I don't think anything will change. Under Gant you can't search a car for anything other than evidence related to the stop. So if the pretext is speeding you may as well have not pulled him over when your real target was drugs because there's nothing but a lead foot to look for. So why have a pretextual stop at all, right? Well, you still have plain sight and inventory searches, for one. He may have a warrant that lets you arrest. You can always "smell" marijuana on him. Or maybe the pretext was erratic driving, you suspect he's on rugs, and the pretext has a built in justification for a search for drugs because that is related to the crime for which you pulled him over--DUI.

Unfortunately, my guess is that it's a long time before the rubber meets the road on Gant. There will continue to be pretextual stops in small towns with less training because they can get away with it, or in large ones where they train officers to beat the hurdles that the Constitution puts in front of them. The one thing we all know is that police agencies train around legal roadblocks. Can't search a car for pretextual speeding? Well, are his eyes bloodshot? Did he cross the lane divider more than once? He may be DUI--you can search related to that.

So, in addition to the exceptions that Gant didn't adress, it did scant little to the one that it did.