Avvo Rating 10.0 top Attorney
Rated by Super Lawyers
Martindale-Hubbell Peer rated for highest level of professional excellence

Finally! Federal Supreme Court Limits Criminal Search Rule

Kish Law LLC

Here in Atlanta, we have been involved in many criminal cases in which police arrested people for traffic offenses, then searched their vehicles and found evidence of completely unrelated crimes. The search incident to arrest rule has been unfairly used by police as an investigatory tool since New York v. Belton extended the rule in Chimel v. California to automobiles in 1981. Last Tuesday, the United States Supreme Court, in Arizona v. Gant, limited this rule to constitutional bounds. Dividing down unusual lines, the Court formulated a new rule that is more in keeping with the original rationale for Chimel and Belton. The rule will apply in both federal and state cases.

Chimel was decided in 1969, holding that police may search the space within an arrestee’s immediate control, “from which he might gain possession of a weapon or destructible evidence.” Belton extended the rule to vehicle searches, but has unfortunately been widely understood to permit vehicle searches even where the arrestee could not gain access to a weapon or evidence. Police have been trained to secure arrestees, then routinely search everything within the passenger compartment of the car. Though these searches have no officer safety or preservation of evidence justification, the police have on occasion acted as if the Belton rule gave them the right to search wherever and whenever they wanted to do so.

In last week’s case, Mr. Gant happened to be at a house that police thought may contain drugs, based only on an anonymous tip. With no probable cause to search Gant or the house for drugs, the officers later arrested Gant after he drove into the driveway, on a warrant for driving with a suspended license. After Gant had been handcuffed and placed in the back of a patrol car, officers searched his vehicle and found a gun and a bag of cocaine. When asked under oath why they performed the search, one of the officers responded, “Because the law says we can do it.”

A chorus of scholars, courts, and Supreme Court justices has called for the Court to revisit Belton, questioning its fidelity to the Fourth Amendment and its clarity. The majority in Gant finally rejected the overbroad reading of Belton and 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 a search might be justified when it is reasonable to believe that evidence related to the crime for which the person is arrested may be found in the vehicle.

Justice Alito wrote the dissenting opinion in this case and was joined by Chief Justice Roberts, Justice Kennedy, and, in part, Justice Breyer, who disagreed with Alito that Belton was well-reasoned. The dissent focused on stare decisis, insisting that the majority was over-ruling Belton, without properly addressing the abandonment of prior precedent. Justice Stevens, writing for the majority, and Justice Scalia, in a concurring opinion, stressed that stare decisis does not justify unconstitutional results.

We are relieved that the court finally limited this rule, which police have taken advantage of for nearly thirty years to invade citizens’ privacy and conduct searches without probable cause. However, we take issue with the second part of the rule, permitting a vehicle search incident to arrest when officers have “reason to believe” they might find evidence related to the crime of arrest. The Court does not address why it chose this standard, rather than probable cause. This part of the rule will create confusion and could tempt officers to fabricate potential crimes in order to search the car in hopes of finding evidence.

Client Reviews

"Amazing, Intelligent lawyer... I cannot recommend him enough". (Charges dropped)


“My hero... he succeeded where other attorneys said there was no hope... ”. (Sentence of probation)

C. N.

“... the only lawyer to hire if you’re facing federal charges-he saved me from going to prison... don’t increase your risk of prison with someone who isn’t qualified or experienced in dealing with the federal government.” (Charges dismissed shortly before trial)


“Paul not only knows the law, but his research and grasp of the particulars of our son's case was utterly impressive. He is the most professional and ethical and tenacious lawyer I have ever come across... ” (Son's convictions reversed on appeal).


Contact Us

  1. 1 Free Consultation
  2. 2 We Will Fight for You!
  3. 3 Over 36 Years Experience
Fill out the contact form or call us at (404) 207-1338 to schedule your free consultation.

Leave Us a Message