Petitioners Brief — Thornton v. United States

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No. 03-5165

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—Saprme

Court, U.S.

FILED

DEC 18 2003

—— OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

MARCUS THORNTON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

BRIEF FOR PETITIONER

Oj Counsel

KENNETH P. TROCCOLI

Assistant Federal

Public Defender

NIA AYANNA VIDAL

Research and Writing

Attorney

FRANK W. DUNHAM, JR.

Federal Public Defender

Counsel of Record

WALTER B. DALTON

GEREMY C. KAMENS

Assistant Federal

Public Defenders

FRANCES H. PRATT

Research and Writing

Attorney

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

1650 King Street, Suite 500

Alexandria, VA 22314

(703) 600-0800

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

Whether New York v. Belton, 453 U.S. 454 (1981),

which established a bright-line rule authorizing a search

of a car’s passenger compartment incident to the

contemporaneous lawful arrest of an occupant therein,

also authorizes a warrantless search of a car when the

arrestee was not in the car when the police initiated

contact with him or within reaching distance of the car at

the time of his arrest?

TABLE OF CONTENTS

Page

Ee i

ET iv

I cssmmmmnenenecons 1

EEE ELSE ae 1

Constitutional Provision Involved.........................ces0008 1

EE 2

i rrrcsieceneenaensnnancncscors 2

ae 4

reer rc ccrntranentonanensoes 8

EES ee 11

I. The Court of Appeals Erred by Allowing a

Belton Search When an Arrestee Is Merely in

ee 11

A. The Proximity Approach Departs From

This Court’s Prior Decisions Regarding

Searches Incident to Arrest..................::0006 13

BD, GUI cccncnssscetacsessecsenseceses : 13

Be EE Ob FIRIIID ccccceccecenccsesssesscencsceoces 16

3. The Court of Appeals’ Misreading of

I inn iaicesineecttentanionscnses 20

B. The Proximity Approach Yields Inconsis-

tent Results and Sets No Clear Outer

Limit for Defining Recent Occupant, Thus

Blurring the Bright Line Belton Meant to

EEE 23

C. The Proximity Approach Does Not Further ;

ci rar ainrenensonsnns 25

iil

TABLE OF CONTENTS - Continued

Page

II. This Court Should Reaffirm the Reasonable

_ Limits Essential to Belton’s Bright-line Rule.... 28

A. Belton’s Automatic Search Rule Should Be

Restricted to Cases in Which the Police

Initiate Contact With the Arrestee While

I I een rnnipencinmnenennintnnniiets 29

1. The Contact Initiation Rule Comports

With This Court’s Prior Decisions ......... 30

2. The Contact Initiation Rule Is Easy to

Understand and to Apply..................0008 32

3. The Contact Initiation Rule Does Not

Reduce Officer Safety ...............::ssseeeeeees 32

B. Alternatively, a Limited Proximity Ap-

proach Also Provides an Appropriate,

Workable, and Reasonable Application of

ccs sdnisactliniiendensmiencienmppangeniieiaenieninniesens 35

C. Applying Either the Contact Initiation

Rule or the Limited Proximity Approach,

the United States Failed to Establish That

the Search of Mr. Thornton’s Car Was Rea-

sonable Under the Fourth Amendment...... 36

SEES a ET ET ETD EET - 38

TABLE OF AUTHORITIES

Page

CASES

Arizona v. Gant, 124 S. Ct. 461 (2003) (mem.).................. 29

Carroll v. United States, 267 U.S. 132 (1925) .......... 34

Cason v. Commonwealth, 530 S.E.2d 920 (Va. Ct.

STD snihinscnsitiietuiciaiiaiiainideiidibiciaaiueipiminssdidiinnisadiumates 21, 24

Chimel v. California, 395 U.S. 752 (1969)................. passim

Daygee v. State, 514 P.2d 1159 (Alaska 1973) ................0.. 31

Florida v. Thomas, 532 U.S. 774 (2001)..........cccccsseeeeeeeeeee 29

Florida v. White, 526 U.S. 559 (1999)...........ccccesseseeeeeeees 34

Gauldin v. State, 683 S.W.2d 411 (Tex. Crim. App.

1984), overruled on other grounds by State v.

Guzman, 959 S.W.2d 631 (Tex. Crim. App. 1998).......... 25

Glasco v. Commonwealth, 513 S.E.2d 137 (Va. 1999)....... 24

Jones v. United States, 357 U.S. 493 (1958)... eee. 27

Katz v. United States, 389 U.S. 347 (1967).............cccceeeeeee 27

Knowles v. Iowa, 525 U.S. 113 (1998)... cece eeee eee 33, 34

Lawrence v. Commonwealth, 578 S.E.2d 54 (Va. Ct.

TEE isseciiteshsstesinaiiuniitiapianianiaciaiiiatehaaineiniaiadiatiaaiaticiniintaibinicaii 3

Lewis v. United States, 632 A.2d 383 (D.C. 1993)............. 31

McDonald v. United States, 335 U.S. 451 (1948) .........0.... 34

Michigan v. Long, 463 U.S. 1032 (1983).................0. passim

New York v. Belton, 453 U.S. 454 (1981) ..............0000. passim

People v. Bosnak, 633 N.E.2d 1322 (Ill. App. Ct.

SITET eshsshstidid linstiniiniidipensiidietehpaidnieiianbeinalitiindtetamadaidaineiialapiapieaaal 24

en eee

TABLE OF AUTHORITIES — Continued

Page

People v. Fernengel, 549 N.W.2d 361 (Mich. Ct.

App.), appeal denied, 552 N.W.2d 170 (Mich.

1996), and cert. denied, 520 U.S. 1110 (1997) ............... 30

People v. Long, 320 N.W.2d 866 (Mich. 1982), rev'd,

I Bs a i ccsrennnintacccnisnennniidensimmnsinennneninis 22

Schneckloth v. Bustamonte, 412 U.S. 218 (1973).............. 34

South Dakota v. Opperman, 428 U.S. 364 (1976).............. 34

State v. Dean, 76 P.3d 429 (Ariz. 2003)............ceceeeeseseeeeeees 25

State v. Gonzalez, 487 N.W.2d 567 (Neb. Ct. App.

Ts s:sicesinonicinnshinihdiesicehibectingintalenatihinicisdinmiaithiiaiadaniniabicascinaieiiaieasda 14, 24

State v. Harris, 942 P.2d 568 (Idaho Ct. App. 1997).......... 33

State v. McClendon, 490 So. 2d 1308 (Fla. Dist. Ct.

App.), rev. denied, 500 So. 2d 544 (Fila. 1986) ............... 24

State v. Vanderhorst, 419 So. 2d 762 (Fla. Dist. Ct.

Rage. TBGED 0cccceresesserceceserccsvscsvesesoovssessosessonssssanoosossooconnsos 25

Terry v. Ohio, 392 U.S. 1 (1968)...........cccceeeeseereeeees 13, 17, 26

Thomas v. State, 761 So. 2d 1010 (Fla. 1999), cert.

dismissed, 532 U.S. 774 (2001)............csscceeeceeeeeeeeees 30, 33

United States v. Arango, 879 F.2d 1501 (7th Cir.

1989), cert. denied, 493 U.S. 1069 (1990) .............cceeeeees 21

United States v. Green, 324 F.3d 375 (5th Cir.), cert.

denied, 124 S. Ct. 152 (ZOOS) ............ccccccccccccccccccssssooeoess 25

United States v. Gwinn, 219 F.3d 326 (4th Cir.),

cert. denied, 531 U.S. 1025 (2000) ..............ceeeeesseeeeeeeees 14

United States v. Hudgins, 52 F.3d 115 (6th Cir.),

cert. denied, 516 U.S. 891 (1995) ...............sscccssssssesecceees 30

United States v. Jeffers, 342 U.S. 48 (1951) scinieiiemninsenetis 34

TABLE OF AUTHORITIES - Continued

Page

United States v. Lorenzo, 867 F.2d 561 (9th Cir.

a RSS ee ee NTS ee EEN ROR ie ORC TBST PON Re ae TE 14

United States v. Ortiz, 146 F.3d 25 (1st Cir.), cert.

I, Bee ae Ue CI pcscciciiciiccieticiincaietiaticicitnteridsiennemniane 14

United States v. Patterson, 65 F.3d 68 (7th Cir.

1995), cert. denied, 516 U.S. 1061 (1996)... eee. 21

United States v. Robinson, 414 U.S. 218 (1973).......... 23, 26

United States v. Sholola, 124 F.3d 803 (7th Cir.

NERS ERTS TEM Cotice ey eer anos ne aR RTA oe oe EH TO 14, 27

United States v. Thornton, 325 F.3d 189 (4th Cir.),

cert. granted, 124 S. Ct. 463 (2003) ............ cece passim

Vale v. Louisiana, 399 U.S. 30 (1970)..............cceee 15, 31, 32

CONSTITUTIONAL PROVISION

8 FE __ Ee TORTIE TET TI passim

STATUTES

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Se A Ue SE ssieicihinlischiiesbitiseiiedcibeiccetaiceibiaain tdci cai 1

a eee iaishicisidibvisinheiibdeiantenbicheiieaibaiacidiniinipilibaipiiihnstlanbiiaiiadie 1

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit appears in the Joint Appendix at pages

61-75, and is reported at 325 F.3d 189 (4th Cir. 2003). The

rulings of the district court appear in the Joint Appendix

at pages 30-37 and 59-60, and are unpublished.

JURISDICTION

The United States District Court for the Eastern

District of Virginia had jurisdiction over this criminal case

pursuant to 18 U.S.C. § 3231. The United States Court of

Appeals for the Fourth Circuit had jurisdiction pursuant

to 28 U.S.C. § 1291. That court decided this case on April 3,

2003. J.A. 61, 76. Mr. Thornton filed his petition for writ of

certiorari on July 1, 2003, which this Court granted on

November 3, 2003. J.A. 77. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Fourth Amendment to the

United States Constitution, which provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

U.S. Const. amend. IV.

STATEMENT OF THE CASE

A. Material Facts

Late one morning in July 2001, Officer Deion L.

Nichols was driving on Sewells Point Road, in Norfolk,

Virginia, in an unmarked police car. While stopped at a

traffic light, the officer noticed a driver in a gold-colored

car who would not pull up next to his car. Finding this

behavior suspicious, the officer pulled into a side street

and turned around so that he could get behind the driver.

J.A. 8-10, 12-13, 18, 30-31, 40.

After Nichols had turned around, he observed Peti-

tioner Marcus Thornton’s car — a gold Lincoln Town Car —

drive past on Sewells Point Road. Mr. Thornton’s car was

not the car Nichols initially observed, and the officer

noticed nothing unusual or suspicious about it. Neverthe-

less, Officer Nichols began to follow Mr. Thornton and “ran

the tag anyway.” He learned that the license plates were

isoued Dr 8 1982 Chevrolet that was registered to Mr.

Thornton. Nichols continued to follow Mr. Thornton, but

never signaled him to stop. J.A. 9-10, 13-14, 16, 30-31, 41,

46.

' Although Officer Nichols could not recall at the suppression

hearing if he learned that the Chevrolet was registered to Mr. Thorn-

ton, the officer acknowledged the car’s ownership at trial. J.A. 16-17,

41.

Mr. Thornton turned into the parking lot of a shop-

ping center. He parked, got out of his car, and began to

walk toward the stores. In the parking lot, he was inter-

cepted by Officer Nichols, who had also parked and exited

his unmarked car. J.A. 9-10, 16, 18, 31, 42, 46-47.

Officer Nichols asked Mr. Thornton to identify himself,

and he did so. In response to Nichols’ statement that the

license plates were registered to another car, Mr. Thornton

explained that he had recently acquired the Lincoln. J.A. 10-

11, 16, 18, 42, 47. Nichols asked no follow-up questions about

the license plates, J.A. 17-18, although under Virginia law, a

person may, in specified circumstances, place plates regis-

tered to his car temporarily on another.’

Instead, Officer Nichols asked Mr. Thornton, who was

sweating in the heat of the July day, why he was so nervous.

Mr. Thornton replied “for no reason.” Nichols then asked

whether Mr. Thornton had any narcotics or weapons on him.

Mr. Thornton said that he did not. J.A. 11, 18-19, 31, 42, 48.

Officer Nichols then decided he should frisk Mr. Thorn-

ton, and received Mr. Thornton’s consent to do so. During the

pat-down, Nichols felt a bulge of squishy material in Mr.

Thornton’s left front pants pocket that he could not identify.

Nichols could not tell what the bulge was, so he again asked

Mr. Thornton if he had any narcotics on him. Mr. Thornton

owned up to having a bag of marijuana. Nichols directed

? See Lawrence v. Commonwealth, 578 S.E.2d 54, 56-57 (Va. Ct.

App. 2003) (referencing applicable Virginia Code sections). At the

suppression hearing, Officer Nichols could not recall whether he issued

Mr. Thornton a summons for the irregularity of the license plates, but

later testified at trial that he did not issue a summons. J.A. 17-18, 51.

him to hand it over. Mr. Thornton gave the officer two

bags, one containing marijuana, the other containing a

substance that appeared to be cocaine base. J.A. 11, 19-21,

31-32, 42, 48.

Nichols arrested Mr. Thornton, handcuffed him, and

placed him in the back of the police car. Nichols then

walked over to Mr. Thornton’s car and searched it. The

search, which Nichols described as “incident to that

arrest,” uncovered a nine-millimeter handgun. J.A. 11, 32,

42. Mr. Thornton was charged in the United States Dis-

trict Court for the Eastern District of Virginia with posses-

sion with intent to distribute cocaine base (21 U.S.C.

§ 841(a)(1)), possession of a firearm by a convicted felon

(18 U.S.C. § 922(g)(1)), and possession of a firearm in

furtherance of a drug trafficking crime (18 U.S.C.

§ 924(c)). J.A. 63-64.

B. Proceedings Below

Before trial, Mr. Thornton moved to suppress, inter

alia, the gun found as a result of the search of his car.

J.A. 1-2, 30. With respect to that search, the United States

argued only that it was justified as a search incident to

Mr. Thornton’s arrest and, alternatively, that the gun

would have been inevitably discovered during an inven-

tory search of the car. J.A. 22-23; see also J.A. 35-36. At

the evidentiary hearing, the officer testified to the facts

described above. He did not, however, testify to Mr. Thorn-

ton’s distance from his car when arrested or whether that

distance fell within “reaching distance” of the car.

The district court denied Mr. Thornton’s motion in its

totality, ruling in pertinent part that the officer conducted

a valid search of the car previously driven by Mr. Thornton

eee ee some sali

OU en a -

incident to his arrest, despite the fact that it was clear

that Mr. Thornton was not an occupant of the car at the

time of that arrest. The court’s written ruling on this

point, in its entirety, was as follows:

“[W]hen a policeman has made a lawful custo-

dial arrest of the occupant of an automobile, he

may, as a contemporaneous incident of that arrest,

search the passenger compartment of that auto- |

mobile.” New York v. Belton, 453 U.S. 454, 460

(1981). After the Defendant voluntarily handed the

narcotics to the police officer, probable cause ex-

isted and Nichols’ arrest of Thornton was lawful.

After the lawful arrest took place, a search of the

automobile incident to that arrest was not a vio-

lation of Thornton’s constitutional rights.

J.A. 35; see also J.A. 27-28. Although the district court

described in its written opinion the facts leading up to the

search of the car, J.A. 30-32, it made no specific findings

regarding Mr. Thornton’s distance from the car when

Officer Nichols arrested him.’

At trial, Officer Nichols testified to essentially the

same facts. J.A. 39-58. Again, that testimony did not

establish Mr. Thornton’s distance from his car at the time

of arrest, and, more particularly, whether he was within

“reaching distance” of it. Following the verdict of guilt on

all three counts, Mr. Thornton moved for a new trial based

upon the introduction of an illegally-seized firearm into

* The district court also agreed with the United States that the gun

would have been discovered during an inventory search following

impoundment. J.A. 35-36. Although raised on appeal, the Court of

Appeals specifically declined to reach that issue. J.A. 75.

evidence at trial. J.A. 3-4, 59. He argued in part that the

search of his car was not permissible incident to his arrest

because New York v. Belton, 453 U.S. 454 (1981), upon

which the district court relied in denying the motion to

suppress, did not authorize the car search as Mr. Thornton

was not an occupant of the car at the time that Officer

Nichols stopped him. J.A. 59; see also J.A. 23.

The district court denied the motion for a new trial,

agreeing with the previous findings of United States

District Judge Henry Coke Morgan that the search was

proper. J.A. 59-60, 64. The court subsequently sentenced

Mr. Thornton to 180 months of imprisonment and eight

years of supervised release. J.A. 4, 64.

Mr. Thornton appealed to the United States Court of

Appeals for the Fourth Circuit, challenging only the

district court’s refusal to suppress the firearm. J.A. 64. In

a published opinion, that court affirmed the district court.

United States v. Thornton, 325 F.3d 189 (4th Cir.), cert.

granted, 124 S. Ct. 463 (2003); J.A. 61-75. The Court of

Appeals determined that Officer Nichols’ search of Mr.

Thornton’s car was proper even though Mr. Thornton was

not in his car when Nichols first approached him. 325 F.3d

at 196, J.A. 73-75. After reviewing thib Court’s rulings in

Chimel v. California, 395 U.S. 752 (1969), and in Belton,

the Court of Appeals acknowledged the division among the

federal and state courts as to whether Belton applies in

cases in which a defendant is not an occupant of a car at

the time that a police officer first approaches him. 325

F.3d at 192-93, 194, J.A. 65-68, 68-70. For several reasons,

the court determined that Belton authorized a search of a

car incident to arrest even when the arrestee has not been

approached by the police while still an occupant of the car.

325 F.3d at 194-96, J.A. 70-74.

Ol rhe ey.

First, the court found that this Court’s decision in

Michigan v. Long, 463 U.S. 1032 (1983), supports the

application of Belton in the situation where a defendant is

already out of his car when the police first approach him.

325 F.3d at 194-95, J.A. 71. Second, the court maintained

that the historical rationales behind the search incident to

arrest exception permit a search regardless of a person’s

motivation for leaving his car. 325 F.3d at 195, J.A. 72.

Finally, the court explained that a limitation on Belton to

“occupants” of a car would create significant safety con-

cerns for police officers because it would require them to

confront an arrestee while that person is still in the car in

order to take advantage of Belton’s exception to the warrant

requirement. 325 F.3d at 195-96, J.A. 72-73. The court

further suggested that any limitation on Belton could en-

courage occupants of cars to move away from their vehicles

in order to avoid lawful searches. 325 F.3d at 196, J.A. 73.

Consequently, the court concluded that the spatial and

temporal proximity test used by other courts was sufficient

to protect arrestees from limitless applications of Belton. 325

F.3d at 196, J.A. 73-74. The court acknowledged that the

record did not establish Mr. Thornton’s precise distance from

his car. 325 F3d at 196, J.A. 74. Finding, however, that

Officer Nichols had approached Mr. Thornton “within

moments” of when he got out of his car, the Court of Appeals

affirmed the district court’s ruling that the search of Mr.

Thornton’s car was conducted incident to his arrest. 325 F.3d

at 196, J.A. 74-75 (emphasis in original).

Mr. Thornton timely filed a petition for writ of certio-

rari. This Court granted the petition. 124 S.Ct. 463,

J.A. 77.

SUMMARY OF ARGUMENT

In Chimel v. California, 395 U.S. 752 (1969), this

Court authorized a warrantless search of the area within

an arrestee’s immediate control contemporaneously with

his arrest. The Court justified such a search on the twin

rationales that a police officer must be able to prevent an

arrestee (1) from gaining access to weapons that could be

used against the officer, and (2) from concealing or de-

stroying evidence. Because an exception to the Fourth

Amendment’s warrant requirement must be closely tied to

the rationales supporting the exception, the Court limited

the area of the search to only the area within which an

arrestee could reach for a weapon or evidence (hereafter

“reaching distance”). In New York v. Belton, 453 U.S. 454

(1981), this Court established a bright-line rule as to what

parts of a car an officer may search incident to arresting

an occupant. The Court emphasized, though, that it was

not retreating from the principles it laid out in Chimel;

that is, the police may search only the area within reach-

ing distance of the arrestee at the time of arrest. Although

Belton clearly applies to an “occupant” of a car, the deci-

sion makes an isolated reference to a “recent occupant.”

This reference has caused courts to struggle with when

Belton authorizes an automatic search of a car incident to

an arrest that occurs outside the car.

The Court of Appeals acknowledged that the record in

Mr. Thornton’s case does not establish precisely how far he

was from his car when he was arrested. The court also

acknowledged that Belton is not without limits. Neverthe-

less, based on Belton’s single reference to recent occupants,

the Court of Appeals expanded Belton to a situation in

which a person is not an occupant of a car, but is merely

proximately linked to the car, both in terms of time and

distance, although not necessarily within reaching dis-

tance of it (hereafter the “proximity approach”). This

approach is wrong for several reasons.

First, the proximity approach is not consistent with

the reasoning of Chimel and Belton. By permitting a

search of a car when an arrestee is no longer an occupant

or within reaching distance of it, the proximity approach

becomes untethered from the two exigency rationales

justifying the search incident to arrest exception. Nor does

this Court’s dicta in footnotes in Michigan v. Long, 463

U.S. 1032 (1983), authorize such an approach. Second, the

proximity approach does not provide a straightforward,

workable standard in its application. Courts have not

reached any uniform consensus on the limits outside of

which a person is no longer a recent occupant of a car.

Third, the proximity approach does not further officer

safety. If the person is beyond reaching distance of the car

when he is arrested, then he is by definition deprived of

the access to weapons that put officers in increased danger

by virtue of the fact of arrest. In short, the proximity

approach comes dangerously close to allowing automatic

searches in all instances of custodial arrests made any-

where near a car, thus turning the Fourth Amendment's

warrant requirement on its head. Consequently, this Court

should reject the proximity approach as a means of deter-

mining who is a recent occupant of a car for purposes of

applying Belton.

instead of the proximity approach, the Court should

adopt a means of determining who is a recent occupant

that draws on Chimel and Belton. Under one alternative,

advanced by Mr. Thornton below, Belton would apply only

to a person who was an occupant of a car at the time the

police initiated contact with him, as long as the officer

arrested that person within reaching distance of the car

(hereafter the “contact initiation rule”). Although the

Court of Appeals rejected the contact initiation rule, it is

preferable to the proximity approach for several reasons.

First, Belton and Chimel themselves support this rule, as

in both cases it is clear that the police initiated contact

with the defendants while they were, respectively, in the

car or room to be searched. Second, the contact initiation

rule is a simple and straightforward, non-subjective and

fact-based rule that will be easy for police officers and

courts alike to apply, i.e., was the person in the car at the

time the police initiated contact, and did the officer arrest

the person within reaching distance of the car? Third, the

contact initiation rule does not adversely affect the safety

of police officers. If the officer has not initiated contact

while the person is in the car, then he can look to a num-

ber of other exceptions to the warrant requirement on

which to justify his search, but not to Belton.

Another alternative for determining who is a recent

occupant of a car is a limited version of the Court of

Appeals’ proximity approach (hereafter the “limited

proximity approach”). Specifically, this approach would

deem a recent occupant of a car to be a person who, prior

to being arrested, has just gotten out of the car but is still

within reaching distance of it at the time of arrest. Like

the contact initiation rule, this approach finds support in

Belton itself. The limited proximity approach also is

consistent with Long, is straightforward and easy to apply,

and furthers the two rationales underpinning the search

incident to arrest exception.

Regardless of whether the Court chooses the contact

initiation rule or the limited proximity approach, the

United States has not carried its burden of proving that

the search incident to arrest exception justified the search

of Mr. Thornton’s car. The United States proved neither

that Mr. Thornton was in his car when Officer Nichols

approached him, nor that he was within reaching distance

of the car when he was arrested.

In sum, Belton was never intended to extend Chimel,

but instead was designed to establish how Chimel applies

to cars. To extend Belton’s reach beyond reaching distance

of a car untethers it from Chimel and from the rationales

that justify what was intended to be a narrowly circum-

scribed exception to the warrant requirement of the

Fourth Amendment.

ARGUMENT

I. THE COURT OF APPEALS ERRED BY AL-

LOWING A BELTON SEARCH WHEN AN AR-

RESTEE IS MERELY IN PROXIMITY TO HIS

CAR

When a police officer places a person under arrest,

Chimel v. California, 395 U.S. 752 (1969), authorizes the

officer to search that arrestee’s person and the area within

his immediate control contemporaneously with the arrest.

New York v. Belton, 453 U.S. 454 (1981), applied Chimel to

the arrests of occupants of cars, authorizing an automatic

search of a car conducted contemporaneously with the

lawful custodial arrest of an occupant of the car.

In upholding the search of Mr. Thornton’s car, the

Court of Appeals acknowledged that Belton “cannot be

stretched so as to render it limitless by permitting officers

to search any vehicle from which an arrestee has emerged,

regardless of how much time has elapsed since his exit

or how far he is from the vehicle when arrested.” 325 F.3d

at 196, J.A. 73. The court conceded that the record did not

establish precisely how far Mr. Thornton was from his car

when Officer Nichols confronted him. 325 F.3d at 196,

J.A. 74. The court concluded, however, that the search of

Mr. Thornton’s car was valid because the officer ap-

proached Mr. Thornton “within moments” of when he left

his car. 325 F.3d at 196, J.A. 74. The court found that the

car was within Mr. Thornton’s immediate control because

he was “positively linked” to the car just before his arrest

and he was in close temporal and spatial proximity to the

car when he was arrested. 325 F.3d at 196, J.A. 74.

The Court of Appeals erred in ruling that Belton

allows a search of a car when an arrestee is merely in

proximity to his car (hereafter the “proximity approach”).

As an initial matter, this approach is not consistent with

this Court’s prior decisions. It is not tethered to the exi-

gent circumstances rationale that underpins the search

incident to arrest exception, as required by Chimel, and by

Belton itself. Further, the approach has yielded inconsis-

tent results, and it sets no outer limit beyond which a

person is no longer a recent occupant. Finally, the ap-

proach does not promote officer safety. In short, the prox-

imity approach creates a rule of convenience for the police

and eviscerates the protections provided by the Fourth

Amendment.

—_—_——_—_—— 2

Rt epee —

A. The Proximity Approach Departs From

This Court’s Prior Decisions Regarding

Searches Incident to Arrest

1. Chimel v. California

This Court set forth the foundation of its modern

analysis of the search incident to arrest exception in

Chimel v. California, 395 U.S. 752 (1969). In that case, Ted

Chimel was suspected of burglarizing a coin shop. Jd.

at 753. Three police officers executed an arrest warrant by

handing him the warrant when he came into his house

after returning from work. Jd. After Chimel refused to give

consent for a search of his house, the officers proceeded —

without a search warrant — to search “the entire three-

bedroom house, including the attic, the garage, and a

small workshop,” as well as the contents of drawers, all

purportedly incident to the arrest. Jd. at 754. This Court

held that the scope of the search was unreasonable under

the Fourth Amendment. Id. at 768.

In so holding, the Court explained that the Fourth

Amendment requires that “‘[t]he scope of [a] search must

be strictly tied to and justified by the circumstances which

rendered its initiation permissible.’” Jd. at 762 (quoting

Terry v. Ohio, 392 U.S. 1, 19 (1968)) (alterations in origi-

nal). The Court then established two general principles

that govern the acceptable scope of a search incident to -

arrest. First, the Court determined that it is “entirely

reasonable” under the Fourth Amendment for police to

search an arrestee’s person in conjunction with a lawful

arrest “in order to remove any weapons that the [arrestee]

might seek to use in order to resist arrest or effect his

escape,” and in order-to prevent “concealment or destruc-

tion” of evidence. Jd. at 763. Second, the Court found that

“the area into which an arrestee might reach in order to

grab a weapon or evidentiary items must, of course, be

governed by a like rule.” Jd. (emphasis added); see also id.

at 766. Thus, Chimel defined the area that may be

searched incident to arrest, referred to hereafter as “reach-

ing distance.” The Court cautioned, however, that “(tJhere

is no comparable justification ... for routinely searching

any room other than that in which an arrest occurs — or,

for that matter, for searching through all the desk drawers

or other closed or concealed areas in that room itself.” Id.

at 763. “Such searches, in the absence of well-recognized

exceptions,” the Court stated, “may be made only under

the authority of a search warrant.” Id.

In rejecting the argument that the search of Chimel’s

entire house, or even an entire room, was “reasonable,” the

Court noted that “that argument is founded on little more

than a subjective view regarding the acceptability of

certain sorts of police conduct, and not on considerations

relevant to Fourth Amendment interests.” Id. at 764-65.

“Under such an unconfined analysis,” in the Court’s view,

“Fourth Amendment protection in this area would ap-

proach the evaporation point.” Jd. at 765. As the Court

warned, “(nJo consideration relevant to the Fourth

Amendment suggests any point of rational limitation, once

the search is allowed to go beyond the area from which the

person arrested might obtain weapons or evidentiary

* This area also has been called the “grab area,” see, e.g., United

States v. Gwinn, 219 F.3d 326, 335 (4th Cir.), cert. denied, 531 U.S. 1025

(2000); United States v. Ortiz, 146 F.3d 25, 28 (1st Cir.), cert. denied, 525

U.S. 917 (1998); the “grabbable area,” see, e.g., United States v. Lorenzo,

867 F.2d 561, 561 (9th Cir. 1989); State v. Gonzalez, 487 N.W.2d 567,

569 (Neb. Ct. App. 1992); and “grabbing distance,” see, e.g., United

States v. Sholola, 124 F.3d 803, 817 (7th Cir. 1997).

items.” Id. at 766 (footnote omitted). Thus, the Court

concluded, “[t]he only reasoned distinction is one between

a search of the person arrested and the area within his

reach on the one hand, and more extensive searches on the

other.” Id.

Only one Term after deciding Chimel, in a case analo-

gous to this case, this Court considered whether a search

of a house could fall within the search incident to arrest

exception when the arrestee had just been in the house

but was arrested outside of it. In Vale v. Louisiana, 399

U.S. 30 (1970), the Court concluded that neither Chimel

nor earlier decisions authorized such a search. In Vale,

three police officers who had warrants for Vale’s arrest set

up surveillance at his house. Jd. at 31. After watching Vale

come out of his house, approach an occupied car, return to

his house, and come back out to the car, the officers

concluded that a drug sale had occurred. Jd. at 32. They

drove toward Vale, who, when he saw them, turned around

and walked back toward his house. Jd. As he reached the

steps of the house, two of the officers called to Vale, direct-

ing him to stop because he was under arrest. Jd. The

officers then searched the house. Jd. at 33. In rejecting the

application of the search incident to arrest exception to

these facts, the Court “decline[d] to hold that an arrest on

the street can provide its own ‘exigent circumstance’ so as

to justify a warrantless search of the arrestee’s house.” Id.

at 35. The Court emphasized that “[i]f a search of a house

is to be upheld as incident to an arrest, that arrest must

take place inside the house,” not “two blocks away,”

“twenty feet away,” or even “on the sidewalk near the front

steps.” Id. at 33-34 (emphasis in original) (citations omit-

ted).

2. New York v. Belton

In New York v. Belton, 453 U.S. 454 (1981), this Court

addressed the proper scope of the search incident to arrest

exception in the context of the “recurring factual situation”

of car searches. Jd. at 460. Specifically, the Court sought to

answer the following question: “When the occupant of an

automobile is subjected to a lawful custodial arrest, does

the constitutionally permissible scope of a search incident

to his arrest include the passenger compartment of the

automobile in which he was riding?” Id. at 455.

In Belton, a single state trooper patrolling on the New

York State Thruway pulled over a speeding car that

contained four occupants. Jd. The officer determined that

none of the occupants owned the car or was related to the

owner. Jd. During the traffic stop, the officer smelled burnt

marijuana and noticed an enveloped marked “Supergold” —

which the officer associated with marijuana — on the floor

of the car. Id. at 455-56. The officer ordered all four men

out of the car and placed them under arrest for unlawful

possession of marijuana. Jd. at 456. He then patted down

each occupant and “split them up into four separate areas

of the Thruway ... so they would not be in physical

touching area of each other.” Jd. (internal quotation marks

omitted). After finding marijuana in the “Supergold”

envelope, the officer issued Miranda warnings and

searched each occupant. Id. The officer then searched the

passenger compartment of the car and found cocaine in

the pocket of Belton’s jacket, which was in the back seat.

Id.

In concluding that the search of the car was lawful

under the Fourth Amendment as a search incident to

arrest, this Court began its analysis by observing that “[iJ]t

is a first principle of Fourth Amendment jurisprudence”

that before the police may conduct a search, they must

convince a neutral magistrate that they have probable

cause to obtain a warrant fo: that search. Id. at 457.

Absent a warrant or the application of an exception to the

warrant requirement, the search is improper. Jd. The

Court noted that a search conducted incident to a lawful

arrest is one of those exceptions because of the need to

search the arrestee and “the immediately surrounding

area” in order to locate any weapons and any evidence that

could be concealed or destroyed. Jd. While recognizing this

exception, the Court reaffirmed the principle announced in

Terry v. Ohio, 392 U.S. 1 (1968), and emphasized in

Chimel that “‘the scope of [a] search must be “strictly tied

to and justified by” the circumstances which rendered its

initiation permissible.’” Belton, 453 U.S. at 457 (alteration

in original) (quoting Chimel, 395 U.S. at 762 (quoting

Terry, 392 U.S. at 19)). The Belton Court also noted that

the Chimel Court had found “‘no comparable justification

... for routinely searching any room other than that in

which an arrest occurs — or, for that matter, for searching

through all the desk drawers or other closed or concealed

areas in that room itself.’” Belton, 453 U.S. at 458 (quoting

Chimel, 395 U.S. at 763).

While reaffirming the “reaching distance” test estab-

lished in Chimel, the Belton Court noted that lower courts

had found it difficult to apply in cases concerning “the

proper scope of a search of the interior of an automobile

incident to a lawful custodial arrest of its. occupants.”

Belton, 453 U.S. at 459 (citing lower court cases reaching

conflicting results). In particular, the Court acknowledged

that “courts have found no workable definition of ‘the area

within the immediate control of the arrestee’ when that

area arguably includes the interior of an automobile and

the arrestee is its recent occupant.” Jd. at 460.

Stressing the importance of a clear standard to guide

police and citizens in this “recurring factual situation,” the

Court observed that the cases addressing such situations

“suggest[ed] the generalization that articles inside the

relatively narrow compass of the passenger compartment

of an automobile are in fact generally, even if not inevita-

bly, within ‘the area into which an arrestee might reach in

order to grab a weapon or evidentiary ite[m].’” Jd. (second

alteration in original) (quoting Chimel, 395 U.S. at 763).

In order to establish a “workable rule” for this “category of

cases,” the Court “read Chimel’s definition of the limits of

the area that may be searched in light of that generaliza-

tion,” and held that “when a policeman has made a lawful

custodial arrest of the occupant of an automobile, he may,

as a contemporaneous incident of that arrest, search the

passenger compartment of that automobile.” Jd. (emphasis

added) (footnote omitted). The Court further explained

that police may also examine the contents of containers

found within the passenger compartment, whether open or

closed, because “if the passenger compartment is within

reach of the arrestee, so also will containers in it be within

his reach.” Jd. The car’s trunk, however, may not be

searched. Id. at 460 n.4.

In so holding, the Court clarified that it did “no more

than determine the meaning of Chimel’s principles in this

particular and problematic context. It in no way alters the

fundamental principles established in the Chimel case

regarding the basic scope of searches incident to lawful

custodial arrests.” Jd. at 460 n.3. As such, the Court

conveyed its belief that the search incident to arrest excep-

tion to the Fourth Amendment’s warrant requirement, even

as applied to cars, remained limited in its application,

specifically to areas within the reaching distance of an

arrestee.

Ultimately, what Belton established was a rule to

govern the permissible scope of searches of cars conducted

incident to lawful arrests of occupants of those cars: police

may search the passenger compartment in its entirety,

including open and closed containers, but they may not

search the trunk. This is a “bright-line” rule that dis-

penses with the need for fact-specific inquiries in individ-

ual cases as to whether particular areas of the passenger

compartment or containers in it satisfy the Chimel “reach-

ing distance” test.

Belton, then, by its own terms, addressed only the

scope of a search once the search was authorized by virtue

of the lawful custodial arrest of the occupant of a car made

while the occupant was in the car or within reaching

distance of it. What Belton aid not do, however, was to

explicitly define the term “occupant” for purposes of the

application of its bright-line rule, even though the facts of

the case implicitly define that term. The Court’s repeated

references to a car’s “occupant,” see 453 U.S. at 455, 459,

460, make clear that the police may search a car incident

to a lawful arrest when the arrestee is still physically in

the car when he is first observed by the police and then

arrested either while he is inside the car, or outside the car

so long as he remeins within reaching distance of it.

However, while the Court made a lone passing reference to

a car’s “recent occupant,” id. at 460, it did not define that

term, except inferentially by the facts of the case

3. The Court of Appeals’ Misreading of

Chimel and Belton

The Court of Appeals affirmed the Belton search of

Mr. Thornton’s car, finding that he was in “close prox-

imity” to it when Officer Nichols approached him. 325 F.3d

at 196, J.A. 74-75. Thus, Mr. Thornton was “positively

linked” to the car, “both temporally and spatially” prior to

and at the time of his arrest. 325 F.3d at 196, J.A. 75. As

such, the court defined “area of immediate control” in

terms of linkage to the car to be searched and the ar-

restee’s proximity to the car. As noted previously, however,

Chimel and Belton require that the arrestee be within

reaching distance of the area to be searched, not merely

within “close proximity” or “positively linked” to it. Conse-

quently, the proximity approach adopted by the Court of

Appeals is at odds with this Court’s decisions.

First, the proximity approach is wholly untethered

from the exigency rationales that justify the search inci-

dent to arrest exception. Chimel and Belton grounded

their holdings on the historic rationales underlying that

exception — officer safety and prevention of the destruction

of evidence. See Belton, 453 U.S. at 457. Yet the proximity

approach has no nexus to those justifications because it

focuses on distance and time as to someone not occupying

a cat, without any apparent consideration of how those

factors bear upon whether the arrestee might obtain

weapons or evidence from the car. Indeed, the approach

effectively abandons the “area of immediate control” test

that is the touchstone of Chimel and that was preserved

by Belton, and instead expands the meaning of Belton’s

“occupant” to include clear non-occupants who may or may

not be within reaching distance of the car. Just as this

Court presciently warned in Chimel, warrantless searches

La ality

would have no “point of rational limitation” — i.e., no tie to

the exigent circumstances that justify the exception to the

warrant requirement — once they are allowed to go beyond

an arrestee’s reaching distance. Chimel, 395 U.S. at 766.

This is not an abstract or theoretical concern. A review

of even a few cases demonstrates that there is no logical

stopping point to the scope of warrantless car searches

once courts apply a test divorced from the reasons for the

search incident to arrest exception. See, e.g., United States

v. Arango, 879 F.2d 1501, 1503, 1506 (7th Cir. 1989)

(upholding car search as incident to arrest where suspect

was arrested a block away from his car and was returned

to his car under the direction and control of police; court

reasoned that suspect was again “in proximity to the jeep”

and that search was “nearly contemporaneous” to arrest),

cert. denied, 493 U.S. 1069 (1990); United States v. Patter-

son, 65 F.3d 68, 69-71 (7th Cir. 1995) (upholding car search

as incident to arrest although officer never observed

arrestee, who was working under the hood of his car,

inside the car), cert. denied, 516 U.S. 1061 (1996); Cason v.

Commonwealth, 530 S.E.2d 920, 922, 924 (Va. Ct. App.

2000) (upholding moped search as incident to arrest where

police never saw suspect on moped, but suspect, who was

carrying a motorcycle helmet, told police that the moped

was in a yard approximately twenty-five to thirty feet

away).

Second, the proximity approach is not compelled, nor

even supported, by Michigan v. Long, 463 U.S. 1032

(1983), a case the Court of Appeals relied upon in deter-

mining that this Court “has clearly indicated, albeit in

dicta, that an officer may search an automobile incident to

an arrest, even if the officer has not initiated contact while

the arrestee was still in the automobile.” 325 F.3d at 194,

" 22

J.A. 71. In Long, two police officers observed Long’s car

traveling erratically and speeding late at night. After

watching the car go into a ditch, they stopped to investi-

gate. Long met the officers at the rear of the car.’ Suspect-

ing that Long was intoxicated, the officers asked to see his

license and car registration. As Long walked toward the

open door of his car to retrieve his registration, followed by

both officers, they observed a large hunting knife on the

driver’s side floorboard. After frisking Long, one officer

stayed by him while the other officer conducted a search of

the passenger compartment for other weapons. Inside the

car he found marijuana. The officers arrested Long for

possession of marijuana and impounded his car. 463 U.S.

at 1035-36. This Court held that a protective search of the

passenger compartment of Long’s car was valid because

the officers had an articulable suspicion that Long was

dangerous and that the car contained weapons, and the

officers were allowing Long to reenter it. Jd. at 1035, 1052.

After noting that the officers observed Long driving

“erratically and at excessive speeds,” the Court com-

mented in a footnote that “if the officers had arrested Long

for speeding or for driving while intoxicated, they could

have searched the passenger compartment under New

York v. Belton.” Id. at 1035 & n.1. Later in the opinion, in

another footnote, the Court further commented, “the

‘bright line’ that we drew in Belton cleariy authorizes ... a

* It is unclear from the Court’s description o: the facts whether the

officers were in active pursuit of Long’s car or had initiated contact with

it before it ran off the road. See People v. Long, 320 N.W.2d 866, 868

(Mich. 1982) (noting that the officers “turned their vehicle around and

pursued the speeding vehicle”), rev'd, 463 U.S. 1032 (1983).

search whenever officers effect a custodial arrest.” Id. at

1049 n.14. These dicta, though, suggest nothing more than

that the officers would have been authorized to search the

car had they arrested Long for speeding or driving while

intoxicated as he remained within reaching distance of his

car, the door of which was open.

Moreover, the Court’s dicta must be considered in

their larger context. As the Court acknowledged, the

respondent conceded that the search incident to arrest

exception applied. Jd. at 1035 n.1. Thus, the Court did not

need to have an extended discussion of Belton. Further,

this Court decided Long only two years after Belton -

before it had become apparent that courts were struggling

with the meaning of “recent occupant.” The Court could

not possibly have intended by two offhand comments,

made only in footnotes, to expand Belton, involving as it

does an issue of such constitutional significance as the

scope of an exception to the Fourth Amendment’s warrant

requirement. See United States v. Robinson, 414 U.S. 218,

229 (1973) (declining to “impose a novel and far-reaching

limitation” on the search incident to arrest exception

based on an “unexplained and unelaborated sentence” in

an earlier Supreme Court opinion). Taken together, all of

these factors severely undermine the Court of Appeals’

reliance on Long to justify its expansion of the Belton rule.

B. The Pvoximity Approach Yields Inconsis-

tent Results. and Sets No Clear Outer

Limit for Defining Recent Occupant, Thus

Blurring the Bright Line Belton Meant to

Establish

In addition to its radical departure from this Cou’ .s

prior decisions and the exigency rationales supporting

them, the proximity approach also fails to provide a

straightforward, workable standard in its application - a

significant part of the Belton Court’s rationale for estab-

lishing a per se rule. Belton, 453 U.S. at 458, 459, 460.

Rather than solving line-drawing problems in this area,

the approach instead merely shifts the line-drawing

inquiry to questions of place and time. For example, is an

occupant “recent” when he is ten feet from the car?

Twenty? Fifty? Is an occupant “recent” when he has been

out of the car for five minutes? Ten minutes? Thirty? What

about two hours? Under the proximity approach, what

linkage is sufficient? Must the arrestee possess keys to the

car? Does it matter if the police even observe the arrestee

inside the car? Because the proximity approach does not

and cannot answer these questions, it will lead only to

uncertain and inconsistent outcomes in this area.

In fact, the lower courts considering such questions

have, not surprisingly, produced disparate results. For

example, one court has upheld a search when the person

was “clearly outside the grabbable area” (i.e., reaching

distance) of the car. State v. Gonzalez, 487 N.W.2d 567, 571

(Neb. Ct. App. 1992). Other courts have upheld automatic

searches of cars incident to arrest when the arrestee was

at least twenty, if not thirty feet from the car, but under

police surveillance. See, e.g., Glasco v. Commonwealth, 513

S.E.2d 137, 138 (Va. 1999); People v. Bosnak, 633 N.E.2d

1322, 1323, 1326-27 (Ill. App. Ct. 1994); State v.

McClendon, 490 So. 2d 1308, 1309-10 (Fla. Dist. Ct. App.),

rev. denied, 500 So. 2d 544 (Fla. 1986). Another court

upheld a search incident to arrest when the suspect was

twenty-five to thirty feet from his vehicle (a moped) but

the officer had not seen him on it. Cason v. Common-

wealth, 530 S.E.2d 920, 922, 924 (Va. Ct. App. 2000).

In contrast to the foregoing cases, the United States

Court of Appeals for the Fifth Circuit found a search of a

defendant’s car to be invalid where the police arrested him

only six to ten feet from his car shortly after he had exited

it. United States v. Green, 324 F.3d 375, 379 (5th Cir.), cert.

denied, 124 S. Ct. 152 (2003). Another court found that a

person was not a recent occupant of his truck when the

police found him in a bar and the record did not reflect his

proximity to his truck in the parking lot at the time he

was arrested outside the bar, or how long he had been out

of the truck. Gauldin v. State, 683 S.W.2d 411, 414 (Tex.

Crim. App. 1984), overruled on other grounds by State v.

Guzman, 959 S.W.2d 631 (Tex. Crim. App. 1998). Yet

another court found that a person was not a recent occu-

pant when he had been out of the car for over two hours

and had walked three miles to his home, returning later to

his car. State v. Vanderhorst, 419 So. 2d 762, 764 (Fla.

Dist. Ct. App. 1982). Similarly, the Arizona Supreme Court

has ruled that a person was not a recent occupant because

he had been out of his car and in his house for more than

two hours, even though he had fled his car to escape the

police. State v. Dean, 76 P.3d 429, 437 (Ariz. 2003). This

wide disparity of results makes plain that the proximity

approach is anything but a “straightforward” or “worka-

ble” inquiry. See Belton, 453 U.S. 459, 460.

C. The Proximity Approach Does Not Fur-

ther Officer Safety

In determining that Belton permits searches in cases

such as Mr. Thornton’s, the Court of Appeals maintained

that limiting Belton would jeopardize officer safety because

it would force officers to confront or signal confrontation

of an arrestee while he is still in a car. 325 F.3d at 195,

J.A. 72. Specifically, the court noted that “when encounter-

ing a dangerous suspect, it may often be much safer for

officers to wait until the suspect has exited a vehicle

before signaling their presence, thereby depriving the

suspect of any weapons he may have in his vehicle.” Id.

Consequently, the court determined that the police should

still be able to search a car incident to arrest even where

the arrestee was not in his car at the time the police

approach him.

In the situation the Court of Appeals describes,

however, the very basis of the search incident to arrest

exception — preventing an arrestee’s access to weapons and

evidence in his car — is obviated when “officers ... wait

until the suspect has exited ... , thereby depriving the

suspect of any weapons he may have in his vehicle.” It

makes little sense to apply an exception designed to

prevent access to weapons or evidence in a car when a

suspect already has deprived himself of that very access by

leaving the car. For the person who has left the car, what

he has on his person, not what he leaves behind in the car,

presents the real risk, and that risk is always present for

an officer whenever he makes an arrest. But both the

Terry frisk exception and the Robinson search incident to

arrest exception provide the police with recourse to protect

themselves. See United States v. Robinson, 414 U.S. 218

(1973); Terry v. Ohio, 392 U.S. 1 (1968). Indeed, Officer

Nichols availed himself of that protection when he frisked

Mr. Thornton prior to the arrest. J.A. 11, 19. Further, if

the police have a reasonable suspicion even before they

arrest a person standing near a car that he may be dan-

gerous, the officers may protect themselves by searching

the car pursuant to Long. Long, 463 U.S. at 1035.

In short, the proximity approach amounts to little

more than a rule of convenience for police officers that

enables them to conduct searches of cars in almost all

situations involving the arrest of someone who can be

linked to a car and is somewhere near it, even when those

situations are entirely divorced from the exigency justifi-

cations upon which the Belton rule rests. Put another way,

the proximity approach comes dangerously close to grant-

ing the police an automatic right to search cars in all

instances of a custodial arrest near a car, even when they

have no probable cause, or even reasonable suspicion, as to

the car itself.

This approach thus turns Fourth Amendment law on

its head. Rather than being per se unreasonable, war-

rantless searches of cars would be uniformly permissible

when a former occupant is arrested, subject only to the

“limitations” of attenuated distance and/or time and some

sort of linkage. However, the distance and time factors are

in many cases entirely within the control of the police.

Even the linkage factor may be within an officer's control.

See United States v. Sholola, 124 F.3d 803, 807 (7th Cir.

1997) (police officer asked suspect if he had a car). As a

practical result, therefore, the proximity approach would

permit warrantless car searches incident to the arrests of

“recent” occupants in the vast majority of cases. Although

such a result may suit the police, it flies in the face of the

core Fourth Amendment principles that warrantless

searches are “per se unreasonable,” Katz v. United States,

389 U.S. 347, 357 (1967), and that exceptions to the

warrant requirement must be “jealously and carefully

drawn,” Jones v. United States, 357 U.S. 493, 499 (1958). .

There is nothing careful or precisely drawn about the

proximity approach.

Il. THIS COURT SHOULD REAFFIRM THE

REASONABLE LIMITS ESSENTIAL TO BEL-

TON’S BRIGHT-LINE RULE

Instead of the amorphous and manipulable approach

that the Court of Appeals adopted, this Court should adopt

a rule that is drawn from Belton’s facts and language and

tied to its reasoning. Belton itself suggests two alterna-

tives. One alternative, which was proposed by Mr. Thorn-

ton and rejected by the Court of Appeals, limits Belton’s

application to cases in which a police officer initiates

contact with an arrestee while he is in the car and arrests

him either in the car or within reaching distance of it (the

“contact initiation rule”). This rule fits with the facts of

Belton and its references to “occupant” and “recent occu-—

pant.” The other alternative, a limited version of the

proximity approach, permits an officer to search a car only

when the arrestee is still physically in the car when he is

arrested, or having just exited the car, remains within

reaching distance of it when arrested (the “limited prox-

imity approach”). This alternative also fits the facts and

language of Belton, and is closely linked to the two exi-

gency rationales underpinning the search incident to

arrest exception. Both alternatives are easier to apply

than the proximity approach employed by the Court of

Appeals, and both protect the safety of police officers.

Further, regardless of which of these two alternatives the

Court chooses to adopt, the United States has not proven

that the search of Mr. Thornton’s car was reasonable as it

has not shown that Mr. Thornton was still within reaching

distance of his car when he was arrested.

A. Belton’s Automatic Search Rule Should Be

Restricted to Cases in Which the Police Ini-

tiate Contact With the Arrestee While He Is

in the Car

Under the contact initiation rule, a police officer may

conduct an automatic search of a car when the officer has

initiated contact with the person while he is still in the car

and the officer subsequently arrests the person while he is

either still in the car or within reaching distance of it.

Under this rule, the determination that the officer or a

court reviewing his actions must make is purely factual. It

focuses solely on the officer’s actions, and only those

actions. Did the officer indicate his presence to the subse-

quent arrestee while that person was in the car? Did the

officer turn on his lights or siren? Did the officer use a

loudspeaker to announce his presence or direct the car to

pull over? Did the officer approach the car and shine a

flashlight into it? Further, under the contact initiation

rule, what the person in the car knew about the officer’s

presence is not relevant to the determination. Conse-

quently, when or why the person may leave the car, includ-

ing an exit prompted by a command from the officer, is

irrelevant. That is, there is no subjective component of the

contact initiation rule, either as to the officer’s or the

occupant’s intent.°

‘ The contact initiation rule has been criticized for requiring a

determination of the subjective reasons why a person leaves a car in

cases in which a person gets out of a car after the police initiate contact

but before they physically reach him. See Petitioner’s Brief on the

Merits at 6, Florida v. Thomas, 532 U.S. 774 (2001) (No. 00-391)

(dismissing for lack of jurisdiction); Petitioner’s Brief on the Merits at

18, Arizona v. Gant, 124 S.Ct. 461 (2003) (mem.) (No. 02-1019)

(Continued on following page)

1. The Contact Initiation Rule Comports

With This Court’s Prior Decisions

The contact initiation rule is grounded in this Court’s

own decisions, particularly Belton itself. Belton’s facts and

holding establish a per se rule that applies only when the

police initiate contact with the arrestee while he is an

occupant of a car. As described earlier, see supra Section

1.A.2, Roger Belton and three others were occupants of a

car when their car was stopped by a New York State police

officer for speeding. 453 U.S. 454, 455 (1981). Based on the

officer’s smell of burnt marijuana and his observation of

the “Supergold” envelope, he arrested the occupants. Id.

Under these circumstances, where the police had initiated

contact with the arrestees while they were still in their

car, this Court held that “when a policeman has made a

- lawful custodial arrest of the occupant of an automobile,

he may, as a contemporaneous incident of that arrest,

search the passenger compartment of that automobile.” Id.

at 460 (footnotes omitted).

(vacating judgment and remanding for further consideration). These

critics, however, read in a component of the rule that does not exist.

This “subjective” component appears to stem from the language in some

decisions distinguishing between factual situations in which the police

directed a person to exit a car and those in which the police did not

direct the person to exit the car. See, e.g., United States v. Hudgins, 52

F.3d 115, 119 (6th Cir.), cert. denied, 516 U.S. 891 (1995); Thomas v.

State, 761 So. 2d 1010, 1013-14 (Fla. 1999), cert. dismissed, 532 U.S.

774 (2001); People v. Fernengel, 549 N.W.2d 361, 362-63 (Mich. Ct.

App.), appeal denied, 552 N.W.2d 170 (Mich. 1996), and cert. denied,

520 U.S. 1110 (1997). The fact that the cases use the word “voluntary”

to indicate that the person exited the car on some basis other than at

police direction, however, does not introduce a subjective component

into the rule.

Sa ee er See

“(Tyhe Belton Court made very clear that the bright-

line rule enunciated in that case extended only as far as

its factual context.” Lewis v. United States, 632 A.2d 383,

385-86 (D.C. 1993). “The Supreme Court’s references in

Belton to ‘a search ... after the arrestees are no longer in

[the automobile] and to ‘recent occupant{s]’ of an automo-

bile clearly pertain to occupants who have been removed

by the police, which is precisely what occurred in that

case.” Id. at 386 n.6 (citations omitted). Further, a custo-

dial arrest of a car’s occupant generally takes place only

after that person has left the car. In fact, “it would be an

unusual situation for a police officer not to remove a

suspect from a car while going through the arrest process,

both for reasons of safety and because of the practical

physical limitations of effecting an arrest in such a con-

fined area.” Daygee v. State, 514 P.2d 1159, 1166 (Alaska

1973). It is apparent from Belton itself, therefore, that for

purposes of applying the Belton rule, an occupant becomes

a “recent occupant” at the time of arrest when he leaves

the car after the police have initiated contact while he was

in it.

The contact initiation rule also is consistent with

analogous Fourth Amendment rules governing when an

officer may search a house incident to arrest, including

Chimel. In Chimel, the police initiated contact with the

defendant only after he had come into his house and the

officers handed him the arrest warrant issued against

him. 395 U.S. 752, 753 (1969). Conversely, in Vale uv.

Louisiana, 399 U.S. 30, 33-34, 35 (1970), this Court held

that the police could not search a defendant’s house when

they had arrested him outside of the house. It is clear from

the facts of Vale that the police did not initiate contact

with the defendant until he was outside of his house, much

less arrest him. Jd. at 32-33. Similar to Vale, then, if the

police have not initiated contact with a car’s occupant

while he is in the car, that person’s decision to leave the

car, whatever the reason, does not give rise to an auto-

matic search of his car merely because he is near it.

2. The Contact Initiation Rule Is Easy to

Understand and to Apply

In addition to being soundly based in this Court’s

decisions, the contact initiation rule is easily understood

and can be routinely followed by both police officers and

courts. An officer in the field or a trial judge evaluating the

legality of a search can quickly determine whether or not

the officer had initiated contact with the arrestee while

that person was still in a car. Indeed, in most instances,

arrests wili be the product of traffic stops in which the

officer signals the driver to pull over by activating his

lights or siren or by using a loudspeaker. In other situa-

tions, an officer need only determine whether or not he has

spoken to, or otherwise signaled to, someone inside a car.

If the officer has done so, and if he then effectuates a

lawful custodial arrest within reaching distance of the car,

he may search the car contemporaneously with that

arrest.

3. The Contact Initiation Rule Does Not

Reduce Officer Safety

The Court of Appeals in this case rejected the contact

initiation rule in part because of its concern that officers

will have to “race” from their patrol cruisers to a car to

prevent an occupant from exiting his car, thus exposing

themselves to danger. 325 F.3d at 196, J.A. 73. This

concern is unfounded for two reasons.

First, as other courts have recognized, if a police

officer initiates contact with a car’s occupant, that occu-

pant cannot “Belton-proof” the car by leaving it before the

officer leaves his car, as long as the officer arrests the

person within reaching distance of the car. See Thomas uv.

State, 761 So. 2d 1010, 1013-14 (Fla. 1999) (warning that

Belton applies even if defendant leaves car when officer

approaches), cert. dismissed, 532 U.S. 774 (2001); accord

State v. Harris, 942 P.2d 568, 572 (Idaho Ct. App. 1997)

(in case where officer pursued defendant with lights

activated but defendant drove to his house, got out of car,

and walked toward the house, stating that “[a] hasty exit

from the automobile after an officer has initiated contact

does not enable a suspect to avoid a search of the passen-

ger compartment incident to arrest”) (emphasis in origi-

nal). Further, if the person leaves his car and moves

beyond reaching distance of it before the officer gets to

him, the officer would have no reason to fear that the

person would or could reach into the car for a weapon or

evidence. Therefore, the two rationales supporting the

search incident to arrest exception would not be met in the

first instance, and the exception should not be applied

unless the person moves back to within reaching distance

of the car.

Second, in those cases where an officer does not

initiate contact until after the arrestee is out of the car,

the officer will still have available other exceptions to the

warrant requirement under which he may be able to

justify a search. Only a few years ago, in Knowles v. Iowa,

525 U.S. 113 (1998), this Court relied upon that very fact

when it declined to expand the Belton rule to cases involving

the issuance of a citation rather than a full-blown arrest. —

The Court agreed that officer safety is certainly at issue in

a routine traffic stop, but found that that concern “does

not by itself justify the often considerably greater intru-

sion attending a full field-type search.” Jd. at 117. The

Court then recognized that “[e]ven without the search

authority Iowa urges, officers have other, independent

bases to search for weapons and protect themselves from

danger.” Id.

For example, the officer can ask for consent to search

the car. Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973). He can impound the car following the arrest and

inventory its contents. South Dakota v. Opperman, 428

U.S. 364 (1976). If the officer has concern for his safety, he

may be able to undertake a protective sweep of the car, as

in Michigan v. Long, 463 U.S. 1032, 1049 (1983). The

officer also can look to the automobile exception, Carroll v.

United States, 267 U.S. 132, 149, 155-56 (1925), if he has

probable cause to believe the car contains contraband, or

to the forfeiture exception, Florida v. White, 526 U.S. 559,

561 (1999), if he has probable cause to believe the car is an

instrument of a crime. These latter two exceptions become

particularly relevant in the context of undercover surveil-

lance of cars, as an officer who has been observing a car

will probably have seen something that gives rise to

probable cause. In short, the search incident to arrest

exception is not an officer’s only basis for searching a car:

any one of these other exceptions to the warrant require-

ment may provide a justification — if, of course, the officer

and government can establish its applicability. See United

States v. Jeffers, 342 U.S. 48, 51 (1951) (noting that “the

burden is on those seeking the exemption to show the need

for it”); McDonald v. United States, 335 U.S. 451, 456

(1948) (stating that warrant requirement cannot be

excused without “a showing by those who seek exemption

... that the exigencies of the situation made that course

imperative”).

In summary, the contact initiation rule provides a

simple, bright-line test for determining who is a recent

occupant of a car in order to apply Belton. Restricting

Belton to cases in which officers made their initial contact

with a car’s occupant avoids the case-by-case decisions

that would otherwise be necessary for officers and judges

to make. Moreover, if the police do not initiate contact with

a person while he is in the car, the police still have other

options that both promote officer safety and prevent the

destruction of evidence and, at the same time, respect the

protections afforded by the Fourth Amendment.

B. Alternatively, a Limited Proximity Ap-

proach Also Provides an Appropriate,

Workable, and Reasonable Application of

Belton

Should this Court reject the contact initiation rule in

favor of the proximity approach, then the Court should

modify that approach so that it limits “recent occupancy”

of a car to the distance and time factors that mattered in

Belton itself. Specifically, the Court should find that a.

person is a “recent occupant” of a car only when that

person, having just exited the car, remains within reach-

ing distance of it at the time of his arrest.

This limitation allows the proximity approach to

comport with this Court’s prior decisions. It clearly fits

with the facts of Belton. It also squares with Long, as Long

had just gotten out of his car and was arrested at the rear

of it. See 463 U.S. 1032, 1036 (1983). Additionally, like the

contact initiation rule, the limited proximity approach is

straightforward and easy for police officers and judges

alike to understand and apply, as it would involve only two

objective factual determinations: first, did the person just

get out of his car, and second, was he still within reaching

distance of the car when he was arrested? Most impor-

tantly, unlike the proximity approach adopted by the

Court of Appeals, the requirement of the limited proximity

approach that the person be arrested within reaching

distance of the car dovetails with the two rationales

underlying the search incident to arrest exception —

protecting police officers and preventing the concealment

or destruction of evidence. Thus, the limited proximity

approach enables the search incident to arrest exception

as applied to cars to remain just that: an exception to the

Fourth Amendment’s warrant requirement, not the rule.

C. Applying Either the Contact Initiation

Rule or the Limited Proximity Approach,

the United States Failed to Establish That

the Search of Mr. Thornton’s Car Was Rea-

sonable Under the Fourth Amendment

Applying the contact initiation rule to Mr. Thornton’s

case, it is readily apparent that he was not an occupant or

recent occupant of a car as is required for purposes of

applying the Belton rule. Nothing in the record of this case

indicates that Officer Nichols did anything to initiate

contact with Mr. Thornton while he was in his car. The

officer did not turn on his lights or siren, or in any way

indicate his presence to Mr. Thornton until the latter had

exited his car and begun to walk away from it. Under

these circumstances, the United States cannot rely on the

ae < -ewee,

search incident to arrest exception to justify the search of

Mr. Thornton’s car.

Similarly, the United States cannot sustain its burden

under the limited proximity approach. The United States

did not demonstrate below that Mr. Thornton was still

arrested him. Officer Nichols never testified as to what

constitutes “reaching distance,” or whether Mr. Thornton

was within that distance vis-a-vis his car when the arrest

occurred. Further, the district court made no factual

findings on these points.

Indeed, the Court of Appeals specifically acknowl-

edged that the record did not establish the actual distance

between Mr. Thornton and his car. 325 F.3d at 196,

J.A. 74. Instead, all that the court could conclude was that

Officer Nichols approached Mr. Thornton “within mo-

ments” of when he left his car, and that Mr. Thornton was

in “close proximity, both spatially and temporally,” to his

car when arrested. Jd. “Within moments” and “close

proximity,” however, are much too vague to be sufficient

for the United States to prove that Mr. Thornton was

within reaching distance of his car when Officer Nichols

arrested him. Consequently, the United States did not

carry its burden of demonstrating the applicability to Mr.

Thornton’s case of the search incident to arrest except’ »n

to the warrant requirement. The search of his car was

therefore unreasonable under the Fourth Amendment.

CONCLUSION

For the reasons stated above, this Court should

reverse the judgment of the Court of Appeals.

—

Respectfully submitted,

FRANK W. DUNHAM, JR.

Federal Public Defender

Counsel of Record

Of Counsel WALTER B. DALTON

KENNETH P. TROCCOLI GEREMY C. KAMENS

Assistant Federal Public Assistant Federal Public

Defender Defenders

NIA AYANNA VIDAL FRANCES H. PRATT

Research and Writing Research and Writing

Attorney Attorney

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

1650 King Street, Suite 500

Alexandria, VA 22314

(703) 600-0800

December 2003

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.