July 27, 2007    AP

PHOENIX – A sharply divided Arizona Supreme Court ruled that it violates Fourth Amendment rights for police to search an arrested person’s car without a warrant when the scene is secure and the person is handcuffed, seated in a patrol car and under an officer’s supervision.

The issue has implications for personal privacy and police officers’ safety, and the state high court’s 3-2 ruling issued Wednesday in the Tucson case represents a dramatic departure in how such everyday circumstances involving traffic stops and other common situations have been handled by law enforcement.

A lawyer who argued the case on behalf of the state said the ruling may be appealed to the U.S. Supreme Court but that Arizona police must comply with it unless and until it is overturned.

Relying on interpretations on past rulings by federal and state appellate courts, Arizona police have felt free to conduct post-arrest searches of vehicles’ passenger compartments in order to check for weapons that could pose a threat to officers and for criminal evidence that could be destroyed.

Now, “if you arrest the driver, it’s not clear when they can search the car and when they can’t,” said Randall Howe, chief criminal appeals lawyer for the state Attorney General’s Office. “Now there is no bright line.”

Thomas J. Jacobs, a Tucson attorney for the defendant in the case, agreed and said the ruling could affect hundreds or even thousands of Arizona cases awaiting trial or pending appeal by requiring that authorities prove there were actual and justifiable circumstances allowing warrantless searches.

The ruling said the need for searches under officer-safety and evidence-preservation exceptions to constitutional protections from warrantless searches didn’t exist in circumstances such as those in the case decided in Wednesday’s ruling.

“In this technological age, when warrants can be obtained within minutes, it is not unreasonable to require that police officers obtain search warrants when they have probable cause to do so to protect a citizen’s right to be free from unreasonable governmental searches,” Vice Chief Justice Rebecca White Berch wrote for the majority.

 Justices Michael D. Ryan and Andrew D. Hurwitz agreed with Berch. Justice W. Scott Bales wrote in a dissent joined by Chief Justice Ruth V. McGregor that the majority’s ruling conflicted with a 1981 U.S. Supreme Court decision on warrantless searches of vehicles.

Jacobs said it’s likely the top U.S. court would agree to hear an appeal by the state because his client’s claim was based only on the federal Fourth Amendment, not the Arizona Constitution’s equivalent privacy guarantee, and because numerous other state and federal courts have ruled differently from the Arizona court on the issue.
“This is a certainly a very significant ruling in the area of Fourth Amendment law,” Jacobs said. “The U.S. Supreme Court really has to deal with it now.”

In the case that produced the ruling, police on Aug. 25, 1999, seized cocaine and drug paraphernalia after Rodney Gant got out of his parked car and was arrested about 10 feet away by officers who had earlier learned that Gant was named on an arrest warrant for driving with a suspended license.

Gant had been handcuffed and placed in a locked patrol car under police supervision by the time police searched his car.

Lawyers for Tucson and two law enforcement organizations representing Arizona police chiefs and lawyers who train police had argued that post-arrest vehicle searches are vital for officer safety and that officers need a rule that is simple to understand.

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