In 1981 the Supreme Court in New York v. Belton upheld searches incident to arrest. The Eleventh Circuit like many other courts developed a rule in automobile searches allowing the search of the entire passenger compartment incident to the arrest of a passenger or driver of a vehicle.

Willie Gene Davis was a passenger in a vehicle in 2007. The car was pulled over and Davis was asked by a police officer to get out of the car. As he was getting out of the car he took off his jacket and left it in the car. The officers asked Davis his name and he gave a false name. After discovering his correct name the officers arrested him, handcuffed him and put him in the police car for giving false information to a police officer. Then they searched the vehicle and found a gun in his jacket. He was charged and convicted for possession of an illegal weapon.

While his case was on appeal the Supreme Court decided Arizona v. Gant in which it corrected the interpretation of Belton. The Court made it very clear that the police could only search, absent a danger to the police officers or others, those areas accessible to the arrestee. Since Davis was handcuffed and in the police car at the time of the search he did not have access to the interior of the car he had been a passenger in and the search of the vehicle was illegal.

But the Eleventh Circuit ruled that while the search was illegal the evidence found in the vehicle was still admissible. While the general rule is that evidence illegally seized is inadmissible at trial this exclusionary rule has many exceptions. In most cases evidence seized in good faith is admissible at trial whether or not it was illegally seized. The Eleventh Circuit ruled in United States v. Davis that at the time of Willie Gene Davis’ arrest the law was clear that the officers could search the passenger compartment. The officers acted in good faith in searching the vehicle and therefore the exclusionary rule should not be applied. The Supreme Court has said on numerous occasions that the exclusionary rule is not constitutionally mandated and that its purpose is to deter police misconduct and since the search of the vehicle was done pursuant to then current Eleventh Circuit decisions misconduct was not involved and excluding the evidence would not effectively deter future misconduct.

But let me give an alternative reason to exclude the evidence. I do not believe that the founders of this nation would have approved of the introduction of illegally seized evidence. After all many of the members of the first Congress and the state legislatures who enacted the Bill of Rights participated in or at least approved mob actions which closed or threatened to close the court in many jurisdictions when the courts tried to enforce English rules expanding the right of the government to search individuals

The rule of law requires that illegally seized evidence be excluded. Why should the government be able to benefit from illegally seized evidence. To allow the use of illegally seized evidence to convict a citizen or an alien for that matter only encourages illegal action and discredits the rule of law.

In 1969 the Supreme Court rejected a search incident to arrest where the area searched exceeded the area adjacent to the area where the defendant was arrested in Chimel v. California. The Court explained that the purpose of the search incident to arrest exception to the warrant rule was to protect law enforcement agents and to prevent the destruction of evidence. Therefore, the court ruled that a search incident to an arrest was only legitimate if the area searched was limited to that area adjacent to the area where the arrest occurred. Thus the only area that could be searched was the area in which the defendant had access to for either the purpose of getting a weapon or destroying evidence.

In 1981 the Supreme Court applied Chimel to auto searches in Belton v. New York. In Belton the Court attempted to develop a bright line rule for interpreting Chimel cases by ruling that the area under the control of the arrestee was the entire interior of the vehicle. But for the last twenty-eight years courts have disagreed about what searches were permissible under Belton. Most courts have ruled that the police could search the interior of the vehicle at any time. This allowed police to search the vehicle when the arrestee no longer had access to the vehicle. Searches incident to arrest have been upheld after the arrestee was handcuffed and placed in the police car. Courts have even upheld searches incident to arrest when the arrestee had been taken away and place in the jail.

Tuesday the Supreme Court in Arizona v. Gant said enough is enough. 1n 1979 we said that searches incident to arrest can only be justified if they protect the security of the police officer or prevent the destruction of evidence. Gant only allows searches of an automobile pursuant to a legal arrest if at the time of the search the arrestee is within the area where he/she might seize a weapon from the vehicle or where the police have have reason to believe that they will find evidence related to the crime for which the arrestee was arrested in the vehicle.

Hopefully this time the lower courts will pay attention.