A couple of years ago, Boalt Professor Charles Weisselberg asked me to file an amicus curiae brief in a Fourth Amendment case he was handling in the California Supreme Court: People v. Macabeo, No. S221852.
Police had stopped and cited Macabeo for riding his bike through a stop sign. Without arresting him, they searched his cell phone and found improper photos of underage girls. The Court of Appeal had upheld the search under the incident to arrest doctrine– because the police could have arrested him.
I asked, “I’d be writing the brief on whose behalf, Chuck?” He replied, “Your own behalf. You wrote the leading law review article cited by the U.S. Supreme Court in their recent cases on search incident to arrest, so the Court should be interested in your views.”
I’d written a number of amicus briefs in my career, but never one for myself. But what the hell. I had already done a lot of work in this area, so it wouldn’t take me long.
I wrote a short amicus brief, based on the article Chuck had mentioned: Moskovitz, A Rule In Search of A Reason: An Empirical Reexamination of Chimel and Belton, 2002 Wisconsin L. Rev. 657 (2002). The article had been cited by U. S. Supreme Court Justices Scalia and Ginsberg in Thornton v. U.S., 541 U.S. 615 (2004) and by Justice Alito in Arizona v. Gant, 129 S.Ct. 1710 (2009).
In New York v. Belton, the U.S. Supreme Court had ruled that officers who arrest a defendant who had recently been driving a car could search the entire car (except the trunk) - even if he was no longer in or near the car at the time of the search. The Court assumed that the defendant was still in the car, where he then could have reached stuff in the car. My article argued that this made no sense, because the reason we allow searches incident to arrest is to prevent the arrestee from reaching for a weapon or evidence. If, at the time of the search, the defendant was too far from the car to reach anything in the car, why allow the search? In Arizona v. Gant, the Court adopted this logic and overruled Belton.
In my Macabeo amicus brief, I argued that the Court of Appeal had made a similar mistake. The Court of Appeal assumed that because the police could have arrested the defendant, they did arrest him – so they could use the search incident to arrest doctrine. This made as little sense as Belton did.
Last Monday, the California Supreme Court unanimously reversed the Court of Appeal, holding that the search was not valid as a search incident to arrest – because there had been no arrest. “Mr. Macabeo was not under arrest when officers searched his phone. Despite this fact, the People urge that the officers could have searched his phone for failing to stop his bicycle at a stop sign, and then searched his phone incident to that arrest. . . .” The Court disagreed: “There is no exception [to the warrant requirement] for a search incident to citation.”
The Court also rejected the AG’s argument that the police had acted “in good faith” reliance on an earlier case holding that they could search a cell phone incident to an arrest. No good faith, because no arrest!
My small contribution to a just result.
by M.A.T. Legal Director Myron Moskovitz