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Just one cheer for the Court.

Article Excerpt
Whatever one's ideological bent, it is frustrating to see the Supreme Court build a doctrine on the shifting sands of illogical reasoning. Thornton v. United States, (1) with its expansion of the illogical "search incident to arrest in automobiles" doctrine laid down in New York v. Belton, (2) is such a case. But Justice Antonin Scalia's recognition of the doctrine's illogic in his concurring opinion, and Justice Sandra Day O'Connor's refusal rejoin a footnote in the majority opinion writing off Scalia's objections, earn the Court modest applause, with the hope that a rational ruling may be in our future.

In Thornton, a police officer spotted a car with license tags that had been issued to another car. Before he had a chance to pull it over, the driver drove into a parking lot and got out of his car. When confronted with the license plate discrepancy, the driver appeared nervous, and the officer asked permission to frisk him.

Feeling a bulge in one of the defendant's pockets, the officer asked if he had narcotics on him. The defendant admitted that he did and pulled out two bags of marijuana and one of cocaine. The officer arrested and handcuffed him, and put him in the back of the police car. The officer then searched the car and found a gun under the driver's seat. (3)

The only issue before the Court was whether an automatic search of the car incident to the arrest was justified when the suspect had exited the car before his encounter with the officer. A possible claim that the car search was based on probable cause was not before the Court.

Seven justices agreed that the search was appropriate, but Justices Scalia and Ruth Bader Ginsburg, while concurring in the result, refused to subscribe to Chief Justice William Rehnquist's majority opinion. Justices John Paul Stevens and David Sourer dissented. O'Connor joined all but footnote 4 of the majority opinion, giving as her reason that this was the "wrong case" to address Scalia's concerns because they had...