On 21 Apr 09, the Supreme Court addressed the troubling problem of searches of automobiles under the New York v. Belton Warrant Exception. In Arizona v. Gant, 556 U.S. __ (2009), found here: http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf (sorry, No Man won’t help me do the fancy links), the arrestee was handcuffed and locked in the backseat of the police car. The Court ruled that Belton had been overapplied and that it did not authorize a vehicle search incident to an occupant’s arrest if the arrestee had been secured and could not access the interior of the vehicle. The Court focused on the Chimel v. California rationale justifying searches incident to arrests: officer safety. Rejecting an expansive reading of Belton, the Court ruled that Chimel only authorizes a search incident to a recent occupant’s arrest when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.

The Court does make a new exception for cases where the search is for evidence “relevant to the crime of arrest” that might be found in the vehicle. But the Court notes that arrests for traffic violations will not usually provide a reasonable basis to believe the vehicle contains relevant evidence (slip op. at 10).

LCDR Julia Crisfield pointed out to me the conflict with Mil. R. Evid. 314(g)(2)(A) which seems to allow for a search incident to arrest of an automobile even where the occupant is not within reaching distance of the interior of the vehicle.

18 Responses to “New Supreme Court search and seizure case”

  1. Anonymous says:

    But the MPs can still toss the car after someone makes the wrong turn off the highway on Lejeune (whenever they reopen 172) or Quantico, correct?

  2. Anonymous says:

    Aren’t all vehicles subject to searches without any cause once on base?

  3. Phil Cave says:

    It’s a consent issue.
    But my recollection is a civilian just had a case dismissed at Quantico because the “consent” signs were not properly placed and seeable.

    Also, which “rule” wins, a constitutional rule or an evidentiary rule? So is there really a conflict with a MRE? I’m sure there will be a TC who will argue that the MRE trumps the constitution, but . . . And does not the Appendix “discussion” of the MRE note that it’s based on Chimel?

  4. Anonymous says:

    Of course there’ll be a TC who argues that an MRE trumps the Constitution, but that speaks volumes about most TC’s, not the absurd argument. I just don’t see why so many TC’s are such mouthbreathers???

  5. Dist. Attny. Hamilton Burger says:

    Wait a minute: are you saying that the MRE’s do NOT trump the Constitution?

  6. Jason Grover says:

    Hey Anon 2049,
    I’m a TC!

  7. John O'Connor says:

    It always adds to the quality of the dialogue to call one side of the aisle “mouthbreathers,” when both sides of the aisle are picked from the same pool of judge advocates.

    I should add on the merits that it’s not a sure thing that the 4th Amendment decision just announced will apply in full force and effect in the military context. It probably will, but I think a court will consider the standard of reasonableness from the military standpoint (and perhaps with a modicum of deference). I have no real opinion on the issue because I’m far from a 4th Amendment expert, and it’s been a long time since I’ve thought about search and seizure law in the military.

  8. Anonymous says:


    The same pool does not mean all those within that pool are equal. It’s pretty common knowledge that the best of the pool are selected for defense work b/c there’s more at stake. The TC jobs, for the most part, go to the average (or below average) folks who stick around long enough and have to graduate from legal assistance/claims/admin law. The gov’t still gets plenty of wins b/c they have such a huge advantage anyway, and the less-talented TC’s can’t submarine all of them. But, then again, sometimes you get the shenanigans, e.g., Behanna.

  9. Anonymous says:

    I once saw a TC breathing through his nose, but he was a former DC who always provided full discovery to the accused.

  10. John O'Connor says:

    Anon 1001,

    That’s funny, I always thought the conspiracy theory was that the good lawyers go to TC billets. And after all this time, I didn’t realize that they made me a TC because they had determined I was stupid.

  11. Anonymous says:

    I can’t think of any good reason why Gant wouldn’t be applied with the same force and effect in the military. The analysis to the rule makes it clear that the rule is based directly on the drafters’ views of Chimel and Belton, and not on any special claim of military necessity.

  12. Jason Grover says:

    You and me both. I asked to go be an SDC for my next tour and they made me the STC. Now I know why!

  13. Jason Grover says:

    Anon 0550,
    I forgot to mention I talked about the case to the local NCIS folks yesterday and they had already been briefed on it. My impression was they were planning on following it.

  14. John O'Connor says:

    That’s the smart move because the rule probably applies in all its particulars. And if it doesn’t fully apply, it won’t be completely inapplicable, but rather there will be a wrinkle here or there on its application.

  15. John Paul says:

    Suggestion: Anyone who wants to characterize an entire side of the bar as “mouthbreathers” and then defend their choice of words by suggesting those individuals were selected to be TCs b/c they were “below average”, should perhaps have the integrity to identify themselves by name when making such comments.

    Seems rather childish to do otherwise. Just a thought.

  16. Anonymous says:


    I don’t think anyone called you “stupid”….just “average” to “below average.” So, you have that going for you…which is nice.

  17. John O'Connor says:

    Well, I am below average . . .

  18. Anonymous says:

    Hey, I am curious, don’t (I know in the AF they are) all JAGS start off pretty much as a TC (or claims)?