Norfolk arrestee’s car searched without a warrant, even though he was not in it.

The ACLU today filed an amicus brief asking the U.S. Supreme Court to throw out an appellate court decision broadening the authority of the police to search automobiles. The ACLU claims that the Fourth Circuit Court of Appeals in Richmond erred when it ruled that police may search a car without a warrant so long as the car has been “recently occupied” by someone who has been arrested.
Under the accepted "search incident to arrest" doctrine, an arresting officer may conduct a warrantless search of the area within an arrestee's reach so that he or she cannot grab a weapon or destroy evidence. When the arrestee is in a car, this includes the passenger area of the car.
In the case now before the nation’s highest court, a Norfolk, Virginia, police officer checked the tags of a car that seemed suspicious, and discovered that they did not match the vehicle.  The officer then followed the car into a parking lot.  When the driver exited the car, the officer approached and, noticing a bulge in the driver’s pocket, asked if he were carrying illegal narcotics. When he admitted that he was, he was placed under arrest and searched.  The police officer then conducted a "search incident to arrest" of the car.
The ACLU’s brief argues that allowing to be searched any car that has been recently occupied by an arrestee is too far removed from the rationale of officer safety and preserving evidence, which are the sole purposes for allowing searches “incident” to arrests.
“Under the Fourth Circuit’s ruling, police can search an arrestee’s car even when they are blocks away from the car when the arrest is made” said ACLU of Virginia executive director Kent Willis, “as long as the arrestee was ‘recently’ in the car.”
“Nothing in the old rule prevents the police from obtaining a warrant to search a car that has been occupied by an arrestee,” added Willis. “We just think that the Fourth Amendment is better served by having a judge make that decision based on all the information available, rather than making such searches automatic.”
“Without a warrant, you can’t automatically search the bathroom of a person who has been arrested in his living room,” said Willis. “In the same way, you should not be able to automatically search the car of a person if they are not in it when they are arrested.”
The case is Thornton v. U.S . The amicus brief was filed by the ACLU of Virginia, the national office of the ACLU, and the National Association of Criminal Defense Lawyers.

Contacts: Kent Willis, Executive Director, ACLU of Virginia, 804-644-8022 Rebecca Glenberg, Legal Director, ACLU of Virginia, 804-644-8022