STOUGHTON_PRE_PP 10/25/20114:21PM 1727 MODERN POLICE PRACTICES: ARIZONA V. GANT’SILLUSORY RESTRICTION OF VEHICLE SEARCHES INCIDENT TO ARREST Seth W. Stoughton∗INTRODUCTIONN 2009, law enforcement officers conducted more than 13.5 million searches without a warrant, consent, or exigent cir-cumstances.1Those searches were “incident to arrest,” one of the most commonly exercised exceptions2to the Fourth Amendment’s warrant requirement.3To conduct such a search, the arresting officer need only make a legal arrest. The fact of arrest itself justifies the search—the officer need not have any additional suspicion that the arrestee is hiding a weapon, a means of escape, or evidence of a crime.4The scope of a search ∗Law Clerk to the Honorable Kenneth F. Ripple, U.S. Court of Appeals for the Seventh Circuit. A very special thank you to Alisa Stoughton, for her unflagging sup-port, and Anne Coughlin, for her guidance and inspiration. Additional thanks go to Josh Bowers, Darryl Brown, and Rachel Harmon, whose suggestions were invaluable. I am also grateful for the editorial support of the Virginia Law Review.1U.S. Dep’t of Justice, Federal Bureau of Investigation, Crime in the United States 2009, Table 29: Estimated Number of Arrests (2010), data/table_29.html (assuming at least one search incident to arrest was conducted for ar-rests for every offense except those categorized under “Runaway” and “Suspicion”). 2Consensual searches are the only warrantless search more common than searches incident to arrest. 3 Wayne R. LaFave, Search and Seizure § 5.2(b), at 68–69 (3d ed. 1996 & Supp. 2000); John M. MacDonald et al., Search and Seizure, inCriminal In-vestigation of Drug Offenses 276 (1983); David E. Aaronson & Rangeley Wallace, A Reconsideration of the Fourth Amendment’s Doctrine of Search Incident to Arrest, 64Geo. L.J. 53, 54 (1975) (stating that more than ninety percent of all searches receiv-ing court consideration were incident to an arrest). 3U.S. Const. amend. IV (“[N]o Warrants shall issue, but upon probable cause, sup-ported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 4See Chimel v. California, 395 U.S. 752, 764 (1969) (justifying searches incident to arrest by the need to “seize weapons and other things which might be used to assault an officer or effect an escape, [and] prevent the destruction of evidence” without any discussion or requirement of officer knowledge or suspicion about the presence of such items). I
STOUGHTON_PP 10/25/20114:21PM 1728 Virginia Law Review[Vol. 97:1727incident to arrest extends to the person of an arrestee,5the im-mediate area where the arrest occurred6and, until recently, the passenger compartment of a vehicle recently occupied by the ar-restee.