4 to 1 to 4

After the issuance of a particularly fractured decision, featuring multiple concurrences and dissents, former Chief Justice Rehnquist once quipped, “I didn’t know we had that many people on our Court.”  The quote came to mind after reading a recent Supreme Court decision, Arizona v. Gant, in which Justice Scalia did something rather unusual and, from the perspective of those tasked with application of the Court’s often splintered decisions, laudatory.  He provided the fifth vote needed to produce a majority opinion, despite the fact that he did not entirely agree with the opinion he joined.

In Gant, the Court addressed the scope of the “search-incident-to-arrest” exception to the warrant requirement established in Chimel v. California.  In Chimel, the Court held that police may, incident to an arrest, search the area within the arrestee’s immediate control, i.e., the area from within which he might gain possession of a weapon or destructible evidence.  In New York v. Belton, the Court extended the rule, holding that police may also search the passenger compartment of the vehicle from which an arrestee was taken.  Most lower courts understood Belton to permit a vehicle search incident to arrest even when there was no real possibility that the arrestee could gain access to the vehicle at the time of the search.  Some courts even allowed a search under Belton when the handcuffed arrestee had already left the scene.

Gant presented an opportunity to narrow this construction of the Belton rule.  

The Court, through Justice Stevens, held that “the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”  The Court further held that police may search if it is reasonable to believe the vehicle contains evidence of the offense of arrest.  

In his concurring opinion, Justice Scalia advocated abandoning application of Chimel in the car-search context.  He explained that officer safety was most threatened at the time of the initial confrontation; “and it is not at all reduced by allowing a search of the stopped vehicle after the driver has been arrested.”  Not a single instance in which a formerly restrained arrestee escaped to retrieve a weapon from his own vehicle had ever been brought to the Court’s attention.  Justice Scalia further opined that the rule pronounced by Justice Stevens failed to provide the needed guidance to arresting officers and left room for manipulation.  He suggested overruling Belton and holding that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred.  He continued, in a rather remarkable passage:

No other Justice, however, shares my view that application of Chimel in this context should be entirely abandoned.  It seems to me unacceptable for the Court to come forth with a 4-to-1-to-4 opinion that leaves the governing rule uncertain.  I am therefore confronted with the choice of either leaving the current understanding of Belton . . . in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by Justice STEVENS.  The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches — which is the greater evil.  I therefore join the opinion of the Court.

Because Justice Scalia was willing to set aside his reservations for the sake of clarity, the Court was able to set forth a controlling rule of law.  Had he not done so, lower courts would have been forced to apply the so-called Marks rule to determine the holding of the case.

Under Marks, when a fragmented Court decides a case and no single rationale explaining the result garners five votes, the holding of the Court is generally viewed as that position taken by those Justices who concurred in the judgment on the narrowest grounds.  However, when — as may have been the case had Justice Scalia not joined Justice Stevens’s opinion in Gant — a concurrence that provides the fifth vote necessary to reach a result does not provide a “common denominator” for the judgment, the Marks rule provides little assistance.  An example of this problem is seen in a Seventh Circuit decision from just last week, United States v. Heron, in which the court of appeals tried to interpret the Court’s 4-to-1-to-4 decision in Missouri v. Seibert.  

In Seibert, the Court considered the propriety of the “question-first” tactic, in which police interrogate an in-custody suspect without providing Miranda warnings, extract a confession, then provide warnings and have the suspect repeat the confession.  The first statement is clearly excludable under Miranda, but some courts had allowed admission of the second (warned) statement.  A plurality of the Court, led by Justice Souter, condemned the question-first tactic as an effort to undermine Miranda and concluded that the second statement should generally be excluded, admissible only if it were shown that the mid-stream warnings could be effective.  Concurring separately, Justice Kennedy advocated a narrower rule focusing on whether the police deliberately employed a two-step strategy in order to undermine Miranda.

In the wake of Seibert, some courts assumed the Justice Kennedy’s narrower, intent-based test represented the controlling rule.  (This included the Seventh Circuit in cases like United States v. Stewart and, at least in dicta, United States v. Peterson.)  In Heron, however, the Seventh Circuit concluded that most of the other Justices, in both the plurality and the dissenting opinions, had rejected Justice Kennedy’s intent-based approach.  The court of appeals thus concluded that Justice Kennedy’s concurrence did not provide the “common denominator” Marks contemplated.  The court did not select a rule for two-step interrogations in this Circuit; instead, it analyzed the facts of the case under both the plurality and Justice Kennedy’s approaches, finding the statement admissible under either.

So how are district courts in this Circuit to evaluate two-step interrogations?  Its not entirely clear.  Fortunately, thanks to Justice Scalia’s decision in Gant, lower courts will not have the same problem in the search-incident-to-arrest context.

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