In the last few Reasonable Action newsletters, we discussed how our Constitutional rights are being systematically dismantled by our courts, especially the Supreme Court. In this article, we will illustrate one of the methods by which this is done. It is intended to show not only the progressive nature of this oppression, but also that the Justices are aware of what they are doing. To that purpose, a great deal of this article will be direct quotations from the opinions rendered in a case decided by the Supreme Court on May 24, 2004, Thornton v. United States (541 U.S. 615). This case is available on the internet1 for anyone who wants to read the decision in its entirety. To minimize confusion, direct quotations from the opinion will be shown indented and in italics, and internal citations are often omitted.

According to the background given of the case, a police officer (Nichols) in an unmarked car suspected Thornton of something (of what was never stated) because he believed Thornton was purposely trying not to pass him on the road. His suspicions aroused, Nichols pulled off so Thornton would have to drive by, and then ran a check on his license plate. He discovered the plates were not registered to the car Thornton was driving, and so decided to pull him over. Before he could do that, however, Thornton parked his car, got out, and began walking away. Nichols pulled in behind him, got out, and approached Thornton, who, according to the officer appeared nervous, was sweating, and began rambling and licking his lips.

 Concerned for his safety, Nichols asked petitioner if he had any narcotics or weapons on him or in his vehicle. Petitioner said no. Nichols then asked petitioner if he could pat him down, to which petitioner agreed. Nichols felt a bulge in petitioner’s left front pocket and again asked him if he had any illegal narcotics on him. This time petitioner stated that he did, and he reached into his pocket and pulled out two individual bags, one containing three bags of marijuana and the other containing a large amount of crack cocaine. Nichols handcuffed petitioner, informed him that he was under arrest, and placed him in the back seat of the patrol car. He then searched petitioner’s vehicle and found a BryCo. 9-millimeter handgun under the driver’s seat. A grand jury charged petitioner with possession with intent to distribute cocaine base, 84 Stat. 1260, 21 U.S.C. §841(a)(1), possession of a firearm after having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, 18 U.S.C. §922(g)(1), and possession of a firearm in furtherance of a drug trafficking crime, §924(c)(1). Petitioner sought to suppress, inter alia, the firearm as the fruit of an unconstitutional search. After a hearing, the District Court denied petitioner’s motion to suppress, holding that the automobile search was valid under New York v. Belton, and alternatively that Nichols could have conducted an inventory search of the automobile. A jury convicted petitioner on all three counts; he was sentenced to 180 months’ imprisonment and 8 years of supervised release.

Ignoring the fact that Thornton was charged with violating federal laws which are actually void from their inception — since the Constitution does not give authority to the federal government to define such activities as crimes in the first place — it should be recognized that he was foolish to consent to be searched, or to answer questions at all. If he had not done so, the drugs presumably would not have been found, and the pretext for the search of his car would not have existed. It is also interesting that the officer, under the pretext of concern for his own safety, asked Thornton if he had any drugs. One must wonder how Nichols felt his safety might be threatened by drugs in Thornton’s pockets.

The resolution of this case hinged on whether or not the search of an arrestee’s vehicle is Constitutionally permissible even when he is not an occupant of the vehicle. The case syllabus gives an early clue about the nature of the oppression discussed in this case:

Although not all contraband in the passenger compartment is likely to be accessible to a “recent occupant,” the need for a clear rule, readily understood by police and not depending on differing estimates of what items were or were not within an arrestee’s reach at any particular moment, justifies the sort of generalization which Belton enunciated.

This idea of a clear rule, also referred to as a “bright-line rule,” is given as justification for expanding the reach of previous rulings. As time goes on, new situations arise which are said to require a new line to be drawn, ad infinitum. As we continue, it will be seen that the Court admitted that the underlying reason for allowing searches of the passenger compartment of vehicles in the first place may not even exist in a particular situation. Nevertheless, they deem it more important to have bright-line rules than to protect the rights of the people in the situations they actually encountered. In other words, it is better that some citizens’ rights be violated than take the chance that a police officer might be unsure whether or not he has authority to search such citizens’ cars. This should be a concern for us all, since this type of progression has no end.

Chief Justice Rehnquist authored the opinion of the Court in this case, but there were also two concurring opinions, and one dissenting opinion (written by Justice Stevens and joined by Justice Souter). We will look at excerpts from each of them, but Justice Stevens’ dissent is especially interesting because of his recognition of the progressive move to restrict liberty in favor of bright-line expediency. We start with Justice Rehnquist:

In New York v. Belton, 453 U.S. 454 (1981), we held that when a police officer has made a lawful custodial arrest of an occupant of an automobile, the Fourth Amendment allows the officer to search the passenger compartment of that vehicle as a contemporaneous incident of arrest.

However, the Belton case did not address arrests made of “recent occupants.” Earlier cases raising that issue were decided on other grounds, and so left the question open.

We now reach that question and conclude that Belton governs even when an officer does not make contact until the person arrested has left the vehicle. … Noting that petitioner conceded that he was in “close proximity, both temporally and spatially,” to his vehicle, the court concluded that the car was within petitioner’s immediate control, and thus Nichols’ search was reasonable under Belton. 325 F.3d, at 196. We granted certiorari, 540 U.S.___(2003), and now affirm.

According to this, the Court concluded that being “close” to your car in time and space is enough to render it within your “immediate control.” This is important, because if the car is in your immediate control, a search of it is deemed to be allowed. Of course, the Court did not elaborate on how close this “close proximity” must be, and so, left the door open for further expansion of the bright-line rules. The Court then began the story of how the rule has developed:

In Belton, an officer overtook a speeding vehicle on the New York Thruway and ordered its driver to pull over. Suspecting that the occupants possessed marijuana, the officer directed them to get out of the car and arrested them for unlawful possession. He searched them and then searched the passenger compartment of the car. We considered the constitutionally permissible scope of a search in these circumstances and sought to lay down a workable rule governing that situation.

We first referred to Chimel v. California, 395 U.S. 752 (1969), a case where the arrestee was arrested in his home, and we had described the scope of a search incident to a lawful arrest as the person of the arrestee and the area immediately surrounding him. This rule was justified by the need to remove any weapon the arrestee might seek to use to resist arrest or to escape, and the need to prevent the concealment or destruction of evidence. Although easily stated, the Chimel principle had proved difficult to apply in specific cases.

Here we see the beginnings of the progression. The Chimel case arose from the conviction of a man for burglary, where evidence obtained by a warrantless search of his entire home was used against him at trial. This warrantless search was held to violate Chimel’s 4th Amendment right against unreasonable searches, and so his conviction was reversed. However, it was held that a search of the “area immediately surrounding” an arrestee was justified by the need to remove any weapons he might use to escape or resist, or to procure evidence which the arrestee might otherwise destroy. Here is a quote from the Chimel case, where the Court explained why warrantless searches are reasonable:

In terms, then, the Court must decide whether a given search is reasonable. The Amendment does not proscribe 'warrantless searches' but instead it proscribes 'unreasonable searches' and this Court has never held nor does the majority today assert that warrantless searches are necessarily unreasonable.

Applying this reasonableness test to the area of searches incident to arrests, one thing is clear at the outset. Search of an arrested man and of the items within his immediate reach must in almost every case be reasonable. There is always a danger that the suspect will try to escape, seizing concealed weapons with which to overpower and injure the arresting officers, and there is a danger that he may destroy evidence vital to the prosecution. Circumstances in which these justifications would not apply are sufficiently rare that inquiry is not made into searches of this scope, which have been considered reasonable throughout.

The justifications which make such a search reasonable obviously do not apply to the search of areas to which the accused does not have ready physical access. This is not enough, however, to prove such searches unconstitutional. The Court has always held, and does not today deny, that when there is probable cause to search and it is 'impracticable' for one reason or another to get a search warrant, then a warrantless search may be reasonable.

So, ignoring the presumption of innocence, the Court justifies a search of the area immediately surrounding an arrestee by presuming instead that he intends to commit another crime, i.e., destroy evidence or resist arrest. Once such a presumption is made, all ensuing expansions are a natural result; later decisions simply widen the area within which it can be claimed that the arrestee might reach. Going back to the Thornton case, Justice Rehnquist explains the expansion of the above rule in cases of arrests in automobiles:

Similarly, because “courts ha[d] found no workable definition of the ‘area within the immediate control of the arrestee’ when that area arguably include[d] the interior of an automobile and the arrestee [wa]s its recent occupant,” we sought to set forth a clear rule for police officers and citizens alike. We therefore held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”

Again the desire for a clear rule is used to justify restricting our rights. Since it is deemed to be too hard for a police officer to determine the extent of the area within which the arrestee might reach, it is concluded that he should be able therefore to search the whole interior, despite the fact that it may not all be within the arrestee’s reach. Continuing, Rehnquist opined on the inherent dangers of an arrest, and compared the circumstances of arrests of occupants and recent occupants of vehicles:

In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle. An officer may search a suspect’s vehicle under Belton only if the suspect is arrested. A custodial arrest is fluid and “[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty.” The stress is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle. In either case, the officer faces a highly volatile situation. It would make little sense to apply two different rules to what is, at bottom, the same situation.

Using this same reasoning, it is easy to see how the clear rule could be expanded to include even a five-mile area, since someone might run that far in his attempt to escape. In fact, in his concurring opinion, Justice Scalia referred to a case where an arrestee ran handcuffed through a forest to a house, grabbed a fireplace poker, and struck an officer. That man was shot dead. If he had lived, perhaps his case would have been used to justify searches of all homes in the area of an arrest.

In this next quote, Justice Rehnquist himself acknowledged that the bright-line rule being established will sometimes act to extend the “principle” upon which the Chimel rule was originally devised, but he deems clear rules to be more important than citizens’ rights.

To be sure, not all contraband in the passenger compartment is likely to be readily accessible to a “recent occupant.” It is unlikely in this case that petitioner could have reached under the driver’s seat for his gun once he was outside of his automobile. But the firearm and the passenger compartment in general were no more inaccessible than were the contraband and the passenger compartment in Belton. The need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment, justifies the sort of generalization which Belton enunciated. Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment.

Notice that Justice Rehnquist admitted that such extension of the Chimel principle is not even justified in this particular case, and yet, used this case to justify it for all similar situations. He did not claim that the gun was accessible to Thornton, only that it was not less accessible than the contraband in Belton. (Naturally, this raises the question whether the contraband in Belton’s car was within his reach either.) Thus, an exception established in Chimel to accommodate perceived danger to arresting officers becomes the rule for the future; that rule then necessitates further exceptions, as in Belton, which then becomes the new rule; and now, a new exception has been created, which will become the rule from which future exceptions will be created. Justice O’Connor, in her concurring opinion, made this same observation:

Although the opinion is a logical extension of the holding of New York v. Belton, I write separately to express my dissatisfaction with the state of the law in this area. As JUSTICE SCALIA forcefully argues, (opinion concurring in judgment), lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California. That erosion is a direct consequence of Belton’s shaky foundation.

We will finish with the majority opinion by examining Justice Rehnquist’s explanation of why a rule proposed by Mr. Thornton would confuse the issue rather than clarify it:

Rather than clarifying the constitutional limits of a Belton search, petitioner’s “contact initiation” rule would obfuscate them. Under petitioner’s proposed rule, an officer approaching a suspect who has just alighted from his vehicle would have to determine whether he actually confronted or signaled confrontation with the suspect while he remained in the car, or whether the suspect exited his vehicle unaware of, and for reasons unrelated to, the officer’s presence. This determination would be inherently subjective and highly fact specific, and would require precisely the sort of ad hoc determinations on the part of officers in the field and reviewing courts that Belton sought to avoid. Experience has shown that such a rule is impracticable, and we refuse to adopt it. So long as an arrestee is the sort of “recent occupant” of a vehicle such as petitioner was here, officers may search that vehicle incident to the arrest.

According to Justice Rehnquist, it would be too subjective to force police to determine whether or not they confronted the suspect while he was in his car, but it is not subjective for them to determine whether or not they are “the sort of ‘recent occupant’ of a vehicle” as Thornton was. Remember, in an earlier quote, Thornton conceded that he was in “close proximity, both temporally and spatially” to his vehicle. Thus, Rehnquist believes that it is less subjective for an officer to determine the proximity (in both time and space) of a suspect to his vehicle, than to determine whether or not he was in his vehicle when the officer approached him. However, Justice Stevens, in his dissent, recognized this as unworkable:

Unwilling to confine the Belton rule to the narrow class of cases it was designed to address, the Court extends Belton’s reach without supplying any guidance for the future application of its swollen rule. We are told that officers may search a vehicle incident to arrest “[s]o long as [the] arrestee is the sort of ‘recent occupant’ of a vehicle such as petitioner was here.” But we are not told how recent is recent, or how close is close, perhaps because in this case “the record is not clear.” As the Court cautioned in Belton itself, “[w]hen a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.” Without some limiting principle, I fear that today’s decision will contribute to “a massive broadening of the automobile exception,” when officers have probable cause to arrest an individual but not to search his car.

Justice Stevens further recognized that a person who is a recent occupant of a car is, in essence, a pedestrian, and therefore, the Belton exception (dealing with arrest of car occupants) should not apply at all:

The bright-line rule crafted in Belton is not needed for cases in which the arrestee is first accosted when he is a pedestrian, because Chimel itself provides all the guidance that is necessary. The only genuine justification for extending Belton to cover such circumstances is the interest in uncovering potentially valuable evidence. In my opinion, that goal must give way to the citizen’s constitutionally protected interest in privacy when there is already in place a well-defined rule limiting the permissible scope of a search of an arrested pedestrian. The Chimel rule should provide the same protection to a “recent occupant” of a vehicle as to a recent occupant of a house.

Justice Scalia filed an opinion in this case concurring in the judgment (that the search was permissible), but dissenting from the reasons given by Rehnquist in the majority opinion. That is, he concludes that the search was allowable on different grounds:

There is nothing irrational about broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested. The fact of prior lawful arrest distinguishes the arrestee from society at large, and distinguishes a search for evidence of his crime from general rummaging. Moreover, it is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended. … In this case, as in Belton, petitioner was lawfully arrested for a drug offense. It was reasonable for Officer Nichols to believe that further contraband or similar evidence relevant to the crime for which he had been arrested might be found in the vehicle from which he had just alighted and which was still within his vicinity at the time of arrest. I would affirm the decision below on that ground.

What makes Justice Scalia’s opinion especially interesting is his explanation for dissenting from the rationalizations of the majority. Here, he gives an overview of the development of the exception, and why this case does not justify further expansion:

In Chimel v. California, we held that a search incident to arrest was justified only as a means to find weapons the arrestee might use or evidence he might conceal or destroy. We accordingly limited such searches to the area within the suspect’s “‘immediate control’”—i.e., “the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].” In New York v. Belton, we set forth a bright-line rule for arrests of automobile occupants, holding that, because the vehicle’s entire passenger compartment is “in fact generally, even if not inevitably,” within the arrestee’s immediate control, a search of the whole compartment is justified in every case.

When petitioner’s car was searched in this case, he was neither in, nor anywhere near, the passenger compartment of his vehicle. Rather, he was handcuffed and secured in the back of the officer’s squad car. The risk that he would nevertheless “grab a weapon or evidentiary ite[m]” from his car was remote in the extreme. The Court’s effort to apply our current doctrine to this search stretches it beyond its breaking point, and for that reason I cannot join the Court’s opinion.

So, Justice Scalia recognized that the justification for allowing searches of the immediate area of a lawful arrest could not apply here, because at the time of the search, Thornton was locked up in a police car, and could not therefore reach into any part of his own car. He then goes on to explain how rules linger long after their justification is gone:

The second defense of the search in this case is that, since the officer could have conducted the search at the time of arrest (when the suspect was still near the car), he should not be penalized for having taken the sensible precaution of securing the suspect in the squad car first. … The weakness of this argument is that it assumes that, one way or another, the search must take place. But conducting a Chimel search is not the Government’s right; it is an exception—justified by necessity—to a rule that would otherwise render the search unlawful. If “sensible police procedures” require that suspects be handcuffed and put in squad cars, then police should handcuff suspects, put them in squad cars, and not conduct the search.

By the United States’ own admission, however, “[t]he practice of restraining an arrestee on the scene before searching a car that he just occupied is so prevalent that holding that Belton does not apply in that setting would ... ‘largely render Belton a dead letter.’”The popularity of the practice is not hard to fathom. If Belton entitles an officer to search a vehicle upon arresting the driver despite having taken measures that eliminate any danger, what rational officer would not take those measures?If it was ever true that the passenger compartment is “in fact generally, even if not inevitably,” within the arrestee’s immediate control at the time of the search, it certainly is not true today. As one judge has put it: “[I]n our search for clarity, we have now abandoned our constitutional moorings and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find.”

Hopefully, the examination of this Supreme Court case will give you some insight into the progressive nature of judicial legislation. Every exception becomes the rule, and every rule necessitates some exception. It is a vicious cycle, and we the people are always the losers. In a letter to Charles Hammond in 1821, Thomas Jefferson spoke of the destructiveness of this practice, and warned us about it:

It has long been my opinion, and I have never shrunk from its expression, ... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary—an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.

The systematic erosion of our rights through judicial legislation is laying the groundwork for a total police state. It helps to perpetuate the illusion of a legal framework in which to enforce your rights, while simultaneously reducing those rights to worthless shadows. It keeps the citizens pacified until the militarization of the police allows for the successful merging of civil law enforcement and military authority — a standing army as dangerous to a free people as any our Founding Fathers envisioned. When the judicial branch fails to stand between a tyrannical government and its citizens, it is a signpost that Liberty is waning. When judges not only condone tyranny, but actively collude in it, the time of trouble is upon us. How long then before doors smashed down by ninja-suited SWAT teams, and neighbors carried off in the middle of the night for make-believe crimes, are considered normal parts of our everyday life? Or when scenes like Waco are repeated on a regular basis, except without any media coverage? It may not be this year, nor perhaps next, but can we really afford to hope it will never happen?

Correcting the course of our republic will not get easier by waiting until it is further off-track. Just like altering the course of a huge ocean liner, it takes a good bit of time to accomplish. So the time to act is now! Continue to educate yourself and help us educate others. Support the Fellowship’s plan to reestablish a radio network as an independent voice for American Liberty. Help make Freedom — and Truth — ring throughout the land.

1. (See page 710 of the pdf file.)