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Analysis: Oral Arguments in Herring v. United States and Arizona v. Gant

 Yesterday, the Court heard oral argument in two Fourth Amendment cases involving the scope of the rules used to implement that provisions’ protection against unreasonable searches and seizures.  Although the cases involve quite distinct questions – one about the scope of the Fourth Amendment itself and the other about the scope of the exclusionary rule when the Amendment is violated – the arguments in both cases focused in large part on the traditional tensions between the need for rules that make sense in all of their application and desire to craft rules that are clear and easy to administer. 

The oral arguments were particularly interesting because the Government and the defendant were called upon to take different sides of the debate in the two cases: in Herring, the defendant argued the virtue of simplicity and clarity, while in Gant it was the Government that was insisting on the need for a bright-line rule.

A detailed description of the issues and briefing in both cases can be found on SCOTUSWiki (here for Herring and here for Gant).  And I should disclose that the Stanford Supreme Court Litigation Clinic represented the petitioner in Herring and filed an amicus brief supporting the respondent in Gant.




The question in Herring was whether the exclusionary rule should be applied to bar evidence obtained through the search of a defendant whom the police believed had an outstanding warrant but who actually didn’t.  In this case, the warrant had been revoked some five months earlier, but the police department had negligently failed to update its records.  The question before the Court was not whether the Fourth Amendment had been violated by the warrantless arrest, but rather whether the evidence obtained as a result of the unconstitutional arrest should be suppressed.

In a prior case, the Supreme Court had said suppression is not appropriate when an unconstitutional arrest was caused by clerical errors of court personnel.  So one line-drawing question was whether that rule should be extended to include cases involving clerical error by police personnel.  That question, however, got very little play at the oral argument.  Justice Alito asked a couple questions about it, but for the most part, the Justices focused on a separate line: what level of negligence by the police should be required before suppression is an appropriate remedy?

Both parties insisted that the Court did not need to resolve that question in this case.  Pam Karlan, arguing for the petitioner, argued that at the very least, negligent error (as occurred here) should result in suppression but that the Court might (perhaps in a future case) ultimately decide that something more akin to strict liability is the preferable rule for reasons of administrability.  She noted, and Justice Scalia seemed to agree, that a negligence standard could lead to long, complicated and expensive suppression hearings in which courts would be required to examine the procedures the jurisdiction uses to protect against error and possibly audits to determine its error rate.  That suggestion, however, got Karlan in trouble with Justice Breyer, who in addition to questioning whether Karlan needed such a rule to prevail in this case, noted that he had “trouble seeing why you’re suppressing a warrant where no one does anything wrong at all.”  

The Government, represented by Deputy Solicitor General Michael Dreeben, also insisted that the Court need not draw a conclusive line in this case, but argued that “An isolated and negligent police clerical error in the maintenance of warrant records should not lead to suppression.”  He made clear, however, that he would “reserve the right to argue that the exclusionary rule’s costs outweigh its benefits even if” the error was more than negligent and less than isolated.  In fact, Dreeben spent much of his time making arguments that apply generally to the exclusionary rule in all cases, taking his cue from statements by a number of the Justices in Hudson v. Michigan, 547 U.S. 586 (2006) that drew into question the doctrine’s continuing validity.  He thus emphasized the social costs of exclusion and the availability of alternative incentives for police forces to avoid unconstitutional arrests, including the availability of civil suits against police officers (prompting Justice Ginsburg to ask for an example of anyone ever prevailing in the circumstances of this case) and the inherent risk in executing arrest warrants.

Although the Government may well envision an ultimate bright-line rule (so suppression, ever), the rule it was arguing for in Herring (no suppression where the negligent error was isolated) did, Dreeben acknowledged, require a certain degree of case-by-case investigation of police practices, a proposition that seemed unappetizing not only to Justice Scalia but also to Justice Souter, who asked whether that meant that the same mistake would result in suppression in one town (because such errors are not “isolated” there) but not in the town next door (where errors are less common).  Dreeben said that it would.

The Chief Justice and Justice Alito, however, seemed untroubled by that prospect and the prospect that suppression hearings would have to be expanded to inquire into a jurisdictions error rate.  The Chief seemed to think that the inquiry could be limited to asking the officer or clerk “how many times have these warrants turned out to be wrong”?  When Karlan noted that the defendant should have an opportunity to contest that testimony, the Chief suggested that cross-examination should be sufficient.  And when Karlan contested this, and argued that defendants would have a right to discovery and expert testimony, Justice Alito noted that similar costs would be imposed by a standard that turns on negligence rather than the frequency of errors.


The question in Gant turned not on the scope of the exclusionary rule, but the meaning of the Fourth Amendment itself.  In New York v. Belton, 453 U.S. 454 (1981), the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment.”  In so doing, the Court expanded a rule developed in the context of arrests in a home, which was justified as necessary to protect officer safety (from weapons that might be in reach of the suspect during the arrest) and to preserve evidence (that might be destroyed by the arrestee). 

Officers arrested Gant for driving with a suspended license and for an outstanding warrant for failure to appear in court on a prior charge of driving with a suspended license.  At the time of his arrest, Gant had walked a short distance from his car before being arrested, and was then handcuffed and placed in the back of a squad car.  The police then searched his car.

The question in Gant is whether the rule of Belton should be modified or rejected, at least as applied to arrests for minor violations when the arrestee is handcuffed and placed in a police car prior to the search.

The Arizona Supreme Court had held that the rule makes no sense in such circumstances and therefore does not apply.  In the United State Supreme Court, the State’s counsel, Joesph Maziarz, placed great emphasis on the fact that Belton was settled precedent and the need for a clear, bright-line rule. 

[A brief aside: Maziarz must have had a brief moment of panic when he stood up and the Chief Justice announced that the Court would hear argument not in Gant, but in another case, Kennedy v. Plan Administrator, which was heard later in the day.  The Chief quickly corrected himself and noted that “It’s still early in the term.”  Justice Kennedy then asked Mr. Maziarz if he had any views on the other case, which he did not.]

Maziarz’s great difficulty (shared by Assistant Solicitor General Anthony Yang, who shared time as amicus supporting the State), was widespread skepticism on the Court that the bright-line rule made any sense – in terms of its traditional justifications – in the common situation in which officers arrest someone, cuff him, and put him in the back of a squad car before searching the vehicle.  Justices Souter, Kennedy, Scalia, Ginsburg and Stevens all were openly incredulous of the claim that officer safety could justify the rule.  And Justice Scalia scoffed at the idea that there was any need to preserve evidence that might be found in the car in the case of an arrest for a traffic violation. “Evidence of what?” he asked.  When Yang suggested that the search might turn up evidence of a more serious crime, Scalia asked in disbelief “you avowedly say that once you arrest somebody you can rummage around for evidence of a different crime”? 

Justice Kennedy invited both the State and the Assistant Solicitor General to identify some new justification and seemed mildly frustrated when neither counsel accepted the invitation.  Speaking to Yang, he said “It seems to me there are good reasons for searching that car. It’s — it’s movable. That’s the old vehicle exception. It can have contraband in it. It can be stolen. It can be taken for joy rides. But you don’t seem to make any of those arguments.  You just want to keep coming back to officer safety and on that point I think your case is very weak.” 

Justice Scalia similarly asked both sides whether there was any historical – as opposed to pragmatic – justification for the rule.  “If you stopped Thomas Jefferson’s carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you – could you then go and search his carriage?”  No one seemed to know.

Although members of the Court gave a good deal of grief to Arizona and United States, a number of Justices were also openly troubled by the suggestion from Gant’s attorney, Thomas F. Jacobs, that the Court should depart from the bright-line rule established in Belton. 

Jacobs’ first question came from Justice Scalia – a traditional proponent of clear rules over flexible standards – noting that the Court had a bright-line rule permitting the search of the person of an arrestee regardless of whether or not the person posed any realistic threat to officers.  “I mean, if the police arrest Mother Teresa, they are still entitled to frisk her, right, even though there’s little likelihood that she has a Gatt?”

Other Justices were concerned about how the Court could draw an administrable line if it backed away from Belton.  The Chief Justice, for example, expressed his view that the “The whole point of a bright-line rule is that you don’t look at the specific facts and it presents a problem here you say the guy is handcuffed and in the back of the car? Well what if he is in the back of the car but not handcuffed? What if there are five people around who might break open the police car and free him? What if there are three people around? You have exactly the same case by case inquiry that Belton said we are not going to do.”  Justice Alito asked similar questions.

Interestingly, neither the Chief Justice nor Justice Alito seemed particularly concerned about adopting a more case-by-case approach to the exclusionary rule in Herring.  While it may simply be a case of inconsistency on their part, the Justices might also think that it is far more important to have a bright line rule governing police officers’ primary conduct than it is to have a simple rule for judges to apply after-the-fact in administering the exclusionary rule.

Justice Alito was also quite concerned that whether Belton made sense or not, it was established precedent.  He asked,”what’s the justification for overruling Belton? Is it, has there been no reliance on it, is the Belton rule less workable than the rule that, the case by case rule that you’re proposing, is it undermined by subsequent developments and precedent or does stare decisus simply not count in these cases?”  Getting himself in a bit of trouble, Jacobs seemed to answer that it was enough that Belton was wrong, provoking Justice Breyer to say that he would require more.  “Now, is there some indication that that’s turned out to be abusive? Is there indication that there are other problems with the rule as it turned out to be complicated? What kinds of things you could say that will overcome what I’m putting forth as a kind of reluctance.” Jacobs answered that modern police procedures – including the pervasive practice of handcuffing suspects and putting them in the back of a police car – have undermined the premise of Belton.

* * * *

The arguments in these cases illustrate the complexity of arguing Fourth Amendment cases before this Court.  It is not simply a question of appealing to Justices’ support for, or skepticism of, the exclusionary rule or broad discretion for law enforcement officers.  Many of the Justices are also concerned about need for clear, administrable rules, while others simultaneously resist the inflexibility and illogical results a bright-line rule inevitably gives rise to.  And while some Justices are more than ready to abandon old decisions and doctrines they believe were wrongly adopted or no longer make sense (be it the exclusionary rule or Belton) others feel strongly about the Court’s obligation to adhere to its prior precedent absent strong justification for departure.  And to make matters worse, these various considerations often point in different directions and cut across the traditional liberal-conservative lines on the Court: Justices Breyer and Alito worry about stare decisis, while Justice Thomas is much less concerned; Justice Kennedy wants a rule that makes pragmatic sense, while Justice Scalia doesn’t care if the rule is nonsensical if it has a historical pedigree; Scalia worries about a vague standard for applying the exclusionary rule, but the Chief Justice not so much.  In the end, the cross-currents can sometimes give advocates more to work with in crafting arguments that can attract five votes.  But at the same time, it sometimes makes the task of holding together a coalition quite complicated.