Before the holidays, my four-year old daughter, Sierra, went with her mother and her preschool class to the Old Globe's production of "How The Grinch Stole Christmas". Ever since then, pretty much daily, she sings -- often at the top of her lungs -- the first two lines of a song that (as far as I can tell) the Old Globe made up for that musical, entitled "Who Likes Christmas?" (For a video snippet of their performance of that song, feel free to click here. Or, for more complete recitation, simply call my home; I'll be happy to put Sierra on the line.)
The first two lines of that song -- which, as you might imagine, have now been permanently seared into my memory as a result of their repeated recitation by my daughter -- are as follows: "Who likes Christmas? We like Christmas!" That's about all of the song I can recall. At that point, my memory -- like my daughter's -- pretty much fades out.
I thought of that line when reading this opinion. Which, if made into a musical -- and, yes, I know that's fairly unlikely -- should probably begin with a song entitled: "Who likes Belton? We hate Belton!" Since it's the Ninth Circuit's latest slam on the Supreme Court's 1981 opinion in Belton v. New York and its stubborn adherence to this precedent in Thornton v. United States in 2004.
The issue is about whether the police automatically get to search your car when they arrest you while you're driving it. Belton (and its predecessors) said that they do, on the theory that there's a legitimate basis for the search because it's designed to make sure there's not a gun in the car that you could grab or evidence therein that you could reach in and destroy. Fair enough.
But what if you're already handcuffed and sitting in the back of the police cruiser? Do they still have the right to search your car, just in case you have the unlikely combination of "the skill of Houdini and the strength of Hercules" (thanks, Justice Goldberg) and hence can slip out of your handcuffs and fight your way back to the car? Crazily, the Supreme Court in Thornton said, "Yep," relying on Belton. Which caused a wide variety of Justices -- as diverse as Scalia and Ginsberg and Stevens -- to say: "Oh, come on now. Get real." (Admittedly, their views on this subject were a bit more intellectually articulated. But I think I've accurately expressed the basic concept there.)
Since then, the Ninth Circuit has repeatedly followed Belton -- as it is required to do, of course. But this has not stopped the court from taking swipes at it. Which is also entirely appropriate. And which is what Judge Pregerson does here. He follows Belton and upholds the search, even though the dude is handcuffed in the back seat of the cruiser. But -- citing Judge Trott and Justices Brennan, O'Connor, and Scalia -- he urges the Supreme Court to revisit and overrule this (absurd) principle.
What Judge Pregerson doesn't mention in his opinion is that Judge O'Scannlain previously did the same thing, back in February 2005, in a case called United States v. Osife. Faithful readers will note that I commented on that earlier Ninth Circuit opinion as well; indeed, I proclaimed that it was the "best one that Judge O'Scannlain has written in a long while," and called it, inter alia, "scholarly," "incisive," and "masterful."
Of course, there's perhaps a reason why Judge Pregerson doesn't mention Judge O'Scannlain's prior missive on the subject. Probably because Judge O'Scannlain would clearly prefer to overruled Belton and adopt the view articulated in Justice Scalia's concurrence in Thornton -- which would automatically allow these searches as a means of obtaining evidence -- whereas Judge Pregerson would likely prefer to follow Justice Steven's dissent, which would preclude such searches when it's clearly not possible for the arrestee to obtain access to the car; e.g., when he's handcuffed in the back of a cruiser.
Regardless, each opinion follows Supreme Court precedent and yet simultaneously insults it. And I liked both opinions. Especially since they're both fairly short. Good job, Harry and Diarmuid.