Does History Support Investigative Searches Incident To Arrest?

Under Arizona v. Gant, police who have arrested the driver of a car have authority to search the car’s interior when it is “reasonable to believe” that the car contains evidence of the crime of arrest.  This holding is anomalous, since it allows for warrantless searches that are purely investigative.  Yet the rule established in Gant is poised to expand.  In the pending cases United States v. Wurie and Riley v. California (which I discussed here), the governmental parties argued in the alternative for the adoption of a Gant-like rule in the cell phone context. Thus, the Court is now considering whether to allow purely investigative searches of cellphones incident to arrest.

In this post, I’d like to complicate the historical picture that underlies Gant‘s embrace of purely investigative searches incident to arrest.  The basic difficulty with that historical picture is this: it derives an authorization for searches from historical cases that govern seizures.

To support the idea of investigative searches incident to arrest, Gant cited Justice Scalia’s concurrence in the judgment in Thornton v. United States. Scalia’s main historical claim was that performing an “evidence-gathering search” incident to arrest finds support in cases establishing “the general interest in gathering evidence related to the crime of arrest.”  In Scalia’s view, these cases contain “no mention” of non-investigative interests, such as the “specific interest in preventing [evidence’s] concealment or destruction.”  I think that Scalia took the wrong lesson from his cited authorities.

To see why, we need to distinguish between two related but nonetheless distinct types of Fourth Amendment rules: those that tell police when they can search, and those that tell police what they can seize.  Given this distinction, it’s possible for police to conduct a legitimate search that turns up materials that cannot be seized.  That possibility arose, for instance, in Gouled v. United States (1921), a then-leading case in which a search warrant led police to find and seize unseizable evidence.  Later, Warden v. Hayden (1967) characterized the “mere evidence rule” established Gouled and related decisions as a rule about “materials … which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest.”  These sources corroborate Justice Frankfurter’s 1947 observation (in dissent) that “[i]t is important to keep clear the distinction between prohibited searches on the one hand and improper seizures on the other.”

To illustrate and explore the significance of this key distinction, let me focus on the only historical authority that Scalia’s Thornton opinion quotes at any length — namely, Bishop’s 1872 treatise.  This source looms very large for Scalia, as he cited it repeatedly, block quoted it, and called it “typical” of the other cited materials.  Given all that, one might expect the treatise to state Gant‘s rule of investigative searches.  Yet it does not.

Scalia cited a section of the Bishop treatise that is headed “The Seizing of Goods in other Cases of the Arrest of the Person.”  So this is a section about seizures, not searches.  The first paragraph subheading is more ambiguous on that score, since it at least mentions searches:  “Power to Search and take Property from Prisoners.”  But this is just another way of referring to the government’s authority to seize “Goods” or “Property” during searches incident to arrest. The treatise section goes on to take for granted the authority to search incident to arrest, without explaining either the proper scope of that authority or its basis (that is, whether it is justified by investigative interests, as opposed to interests like evidence preservation or officer safety).

And why have rules on seizures incident to arrest, anyway?  Well, Bishop reports that constables often seized whatever they wanted from the arrestee, but this was problematic — primarily because the arrestee “is thereby deprived of the means of making his defense.”  Thus, the treatise says, someone arrested for rape shouldn’t have his watch seized.  The focus in Bishop’s discussion is on items of value, like “money” or “a watch.”  There is no mention of personal objects like diaries or letters. (Cf. my earlier post suggesting that diaries and cell phones shouldn’t be readable incident to arrest.)

Based on the need to protect arrestees’ valuable property, the treatise proposes a rule that (it concedes) had not actually been stated in the case law.  This proposed rule is what Scalia block quoted in Thornton.  Here’s the block quote:

The officer who arrests a man on a criminal charge should consider the nature of the charge; and, if he finds about the prisoner’s person, or otherwise in his possession, either goods or moneys which there is reason to believe are connected with the supposed crime as its fruits, or as the instruments with which it was committed, or as directly furnishing evidence relating to the transaction, he may take the same, and hold them to be disposed of as the court may direct.

Again, Scalia cited this passage as evidence of a “broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested.”  Later, Scalia added a “cf.” cite to the above-quoted passage and parenthetically asserted that, according to Bishop, an “officer should ‘consider the nature of the charge’ before searching.” But the passage talks about what to seize, not when to search.  In other words, this passage (which references “instruments” and “fruits” and so at least partly tracks the now-abandoned “mere evidence” rule) takes the officer’s search authority for granted and inquires only into what the officer can reasonably seize.

Given its focus on seizures, the cited passage does not support Scalia’s claim that the authority to conduct warrantless searches incident to arrest was historically based on a “general interest in gathering evidence related to the crime of arrest.” Instead, the Bishop passage is entirely compatible with the notion — embraced in modern cases like Chimel v. California (1969) — that the power to search incident to arrest depends upon non-investigative interests, such as preventing destruction of evidence and protecting police.  In fact, Scalia himself candidly acknowledged that “Chimel‘s narrower focus on concealment or destruction of evidence also has historical support,” as well as that “Chimel‘s officer-safety rationale has its own pedigree.”  A separate set of interests and principles, including the those outlined by Bishop, limited what could be seized.  

In sum, when the police can search was (and still is) analytically distinct from what the police can seize.  It was thus a leap for Scalia — and, by extension, for the Gant Court — to ground a rule of investigative searches in the history of rules governing seizures.  In particular, Bishop’s proposed restriction on what could be seized does not translate into a rule permitting warrantless investigative searches.  I hope that the Court does not rely on this aspect of Gant when deciding Wurie and Riley.