BIG U.S. Supreme Court decision on Search & Seizure

Missouri Criminal Defense LawyerIn 1981 the U.S. Supreme Court decided, in the case of New York v. Belton, that if an occupant of a motor vehicle was arrested, the police could search the entire passenger compartment of the vehicle to look for weapons or evidence of a crime.

Under the fourth amendment such a search would normally be considered unreasonable and therefore unconstitutional, unless a search warrant was obtained. Even so, the Belton case has been the rule in Missouri ever since and gave the police an absolute right to search the entire passenger compartment of a vehicle once any occupant of that vehicle has been arrested.

Yesterday, the U.S. Supreme Court in Arizona v.  Gant overruled its 28 year old decision in Belton by holding that the police could not search inside a vehicle, once the arrested person was away from the car, unless they had reason to believe that evidence of the crime might be found in the vehicle.

This is a huge decision.  It is huge because a large proportion of drug arrests occur when the police arrest someone for an unrelated offense such as driving while revoked.  Once the person is handcuffed and placed in the patrol car, the police always return to the vehicle and search the passenger compartment thoroughly.

It will be interesting to see how both police and citizens react to this change in the current search and seizure law.

Citizens may be more likely to step out of their vehicle after being pulled over so as to ensure that they will not have their vehicle searched if they were arrested for some reason.

Search and seizureOne wonders if some police might be tempted to change their current practice of getting suspects out of a vehicle before arresting them. It’s hard to imagine a driver being arrested while still seated in his car and then being commanded to sit still while the officer searches the vehicle around him.  If that were permitted, we might see the police running public service announcements telling drivers to remain in their vehicles when stopped, lest they be attacked by police officers who–misunderstanding the person’s actions-believe they are in danger.

I doubt the courts will permit the police to search vehicles by forcing arrested persons to stay inside the vehicle after arrest. If that is the case, then getting out of your car at a traffic stop would be an unnecessary precaution. It might also serve as a signal to police that evidence of a crime may be in the vehicle.

Another thing we may see is an escalation of vehicles being towed by police after an arrest (for safety reasons, of course). Then the police would thoroughly search the vehicle under what is known as the “inventory” exception to the search warrant requirement.  Click here for “inventory search” explanation.  A driver fortunate enough to be pulled over near a legal parking space may want to take advantage of that opportunity and deny police an excuse to tow the car.

We will have to see how this all plays out.


Come back with a warrant

New law makes sex offenders hunker down for Halloween

Post-Halloween Update: Christian County arrests 18 sex offenders for not following Halloween law. Eighteen arrests. It’ll be interesting to see if the prosecutor charges these sex offenders and to see whether anybody challenges the law in these cases.

Update: Judge’s ruling complicates enforcement of new Halloween sex offender law. Part of the law ruled “ambiguous.” This still doesn’t address the issue of whether the law applies to most registered offenders.

Friday is Halloween and registered sex offenders have their marching orders under a new Missouri law.

Senate Bill 714 requires that registered offenders shall henceforth, on Halloween:

  • avoid all Halloween-related contact with children
  • remain inside their residences between 5 and 10:30 p.m. unless there is just cause to leave
  • post a sign stating, “No candy or treats at this residence”, and
  • leave all outside residential lighting off during the evening hours.

There is already a lawsuit filed challenging the law:Cape Girardeau County prosecutor responds to sex offenders’ suit over Halloween activities.

Since we haven’t yet seen a Halloween under this law, no one has yet been charged and no one knows if the federal courts will interfere.

One thing that will eventually be raised is that, when this law went into effect, it could not be enforced against anyone. This is because the Missouri Constitution prohibits what is called a “retrospective law.”  A retrospective law is one which creates a new obligation with respect to things that were done in the past. The State cannot impose a new duty on a person whose offense occurred before the duty was imposed. Doe v. Phillips, 194 S.W.3d 833 (Mo., 2006).

The new Halloween law went into effect on June 30, 2008. This would seem to make the new law unconstitutional because it claims to apply to all registered sex offenders. Under the Missouri Constitution, the new law should only apply to persons whose sex offenses occurred after that date.

Of course, that’s just my opinion.  As a practical matter, there will always be some prosecutors who will try to enforce this new sex offender law, without regard to its constitutionality. Politicians shovel this stuff out and the public eats it like ice scream.  Later on, the courts get to play the villain when they toss out the bad law.

So unless a sex offender wants to chance getting charged, he will need to hide out this halloween, just like the new law says. Until someone fights it and wins, the law is presumed to be constitutional.


Federal judge nips jury nullification in the bud

The jury had begun deliberations in a federal criminal drug trial when the judge was sent this note:

One juror is asking: Where – if two-thirds of both houses of congress voted in 1919 that it was necessary to amend the constitution to give congress the power to ban mere possession of a substance (prohibition of alcohol in that case) – is the constitutional grant of authority to ban mere possession of cocaine today?”

The judge decided that he (and the US Attorney) had a problem. After some inquiries back and forth with the jury, the judge brought the jurors before him and interrogated them. He quickly identified the juror who had questioned the law.

He informed the attorneys that this juror “engaged in juror nullification and [the Court believed] it was within [its] power to dismiss him.” The judge kicked the juror off the jury and replaced him with an alternate juror. The defense objected. The reformed jury came back with the guilty verdict.

The judge handed down a 40 page memo explaining his order. (read it here)

Among other things, the judge seemed to connect such juror conduct with gradual elimination of the jury trial.

He lamented: “Without juries, judges become glorified hearing officers whose contributions to society could not possibly justify grand courthouses, courtrooms, or judicial staff.”

I look forward to reading the appellate decision on “jury nullification” that will follow this decision.

Here are some prior posts on jury nullification:

Here a comment on this case from www.cato-at-liberty.org:
Juror Becomes Fly in the Ointment