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The Fourth Amendment requires that police searches be done only with warrants issued by judges or magistrates who have found probable cause. What to do with this pesky Fourth Amendment, this "technicality" that lets so many actually guilty criminals off scott free under the exclusionary rule because a search was conducted without a warrant? At a time in the development of the law when the Fourth Amendment was thought not binding on the states and only applicable as against the federal government (the year was 1926), future United States Supreme Court Justice Benjamin Cardozo rejected the exclusionary rule while sitting on New York's highest court.

At the time, when federal employees such as federal marshals obtained evidence in violation of the Fourth Amendment by conducting a search without a necessary warrant, the fruit of the illegal search was not competent evidence in a federal prosecution. But states were then free to determine whether to adopt the exclusionary rule, and by Cardozo's count, thirty-one states at the time (including Massachusetts) had rejected it. Refusing to accept a rule where, "the criminal is to go free because the constable has blundered," Cardozo rejected the exclusionary rule for New York. Since 1961, the Fourth Amendment has been held to apply against the states and there is no "opting out" of the exclusionary rule.

So what do judges do when evidence obtained by an illegal search is now mandatorily excluded? They keep creating exceptions to the Fourth Amendment's warrant requirement so that the search is not illegal in the first place. After decades of judicial abuse, the warrant requirement of the Fourth Amendment had so many judicially engrafted exceptions that it had become almost meaningless-the exceptions had swallowed the rule.

A recent decision by the United States Supreme Court, Arizona v. Grant, a case which has largely escaped notice by the mainstream media but is justifiably all the buzz in legal circles, appears to be a turn for the better. The case involved what is known as a "search incident to arrest." A defendant was arrested for having a suspended license. While hand-cuffed and in the back of a police cruiser, the police went rifling through the car without a warrant and found a gun and a bag of cocaine in the pocket of a jacket on the backseat.

The arrested was hardly likely to pull a Harry Houdini, escape from handcuffs and the locked cruiser, to brandish a gun hidden in the glove compartment of the car. Nor could he destroy evidence. Yet the search incident to arrest doctrine had taken on a life of its own, unmoored by practical concerns of police safety and the destruction of evidence.

Finally, the Supreme Court has said enough is enough, and police are not free to rifle through cars after an arrest. Prior to this recent ruling, abuse of the search incident to arrest doctrine became rampant, and police officers were arresting people for a traffic violations as an excuse to search their car. As a matter of standard practice, cars were searched without probable cause just on the mere chance that contraband might be found. The Kafkaesque justification for the search incident to arrest rule was that since it is justifiable to search for weapons and evidence when someone might reach for a weapon or destroy evidence, why not extend the rule to people that have just been arrested for the sake of a "bright-line rule" regardless of the risk that the endangered person poses?

Police may now only search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search (not while handcuffed in a police cruiser) or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Frankly, Grant does not go far enough; once a person is arrested and the crime scene secured, it should always be time to start getting warrants. But at least free-for-all warrantless searches completely unrelated to the purpose of the arrest when someone could not possibly reach for a gun or destroy evidence are now a thing of the past.

The author is a practicing attorney whose columns have appeared in newspapers across the country.