Amicus Curiae Brief — Thornton v. United States

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No. 03-5165

In The

Supreme Court Of The United States

Marcus Thornton

Petitioner

Vv.

United States of America

Respondent

ON WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF OF

SHASHANK S,. UPADHYE AS AMICUS CURIAE IN

SUPPORT OF NEITHER PARTY

Shashank S. Upadhye*

2050 Bunker Circle

Naperville, IL 60563-1892

(312) 443-1836 (day)

Counsel for Amicus Curiae

Shashank S. Upadhye

*Counsel of Record

Motion For Leave To File Brief

Amicus is a member in good standing of this Court and

moves this Court for leave to file the attached brief in

support of neither party. The United States consented

but the Petitioner's counsel did not and similarly, did not

provide a detailed explanation thereto.

This brief proposes a rule that finally dispenses of the

“intent” or “motive” based approach for vehicle searches

putatively present under the Chimel-Belton doctrines.

The motive or intent based approach has been examined

by this Court in two prior cases that were never resolved

because this Court either dismissed the petition as

improvidently granted or dismissed for want of

jurisdiction. Amicus has a strong interest in preserving

the rights granted under the Fourth Amendment and

believes that a new zone-based approach is necessary.

Amicus proposes a new rule that ignores subjective

factors and focuses on objective factors; more precisely,

the desire to create bright line rules that assist law

enforcement officers in performing their duties and

protects individual liberties. Given the increasing

emphasis placed on law enforcement to ferret out

national security threats, subjective inquiries must be

abandoned in favor of objective inquiries. Amicus has

demonstrated a disturbing and pernicious trend toward

reducing privacy rights involving automobiles and

believes that a more objective based inquiry is necessary.

The new test is adequately described in the brief.

Finally, as a matter of professional courtesy, a draft of

this brief was sent to the Petitioner’s counsel weeks

before this filing and thus has had ample opportunity to

review its substance and thus will not be prejudiced by

this brief. Therefore, amicus requests the Court grant

the leave.

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TABLE OF CONTENTS

TABSAS OF AUTUROEES BEEED cvccssccsetinintineiumiiie ill

INTEREST OF AMICUS CURIAE ...............cccsecccccccceseeeeeees 1

SUMMARY OF THE ARGUMENT.......0000.....cc cece eeeeeeeeeeee 2

SURE TEI Bo 0cccccessrsvescesonscessienseniebsisssinnaianiinaainiennnan 4

I. Belton Does not Extend Beyond The Scope Of

Chimel, Which is Strictly Construed..................00008. 4

1.A. Chimel Implicitly Adopted a Spatial and

Temporal Relationship Theory Tying the Item

Searched To TRO AgGeGGO .uscsicivcisemsommmeaaaae 7

Il. Chimel and Belton Mandate a Zone-Based

Approach That Ignores The Arrestee’s Motive For

Boitimg thee Vedic bee ..1ncccscscccossesssenniiaaneeneeee 10

Il.A. Why a Zone-Based Approach is

5 PR 10

11.B. Explanation of Scenarios and

OCRCDEINOS........0+20000000<0000ssescsunsennniannalilannn 14

II.C. Justification for a Zone-Based Approach...... 16

III. Application of The Zone Based Approach To

ne 21

CONCLUSION ........0000+:000ssessnennsensuesnasiiisiiaaiannnnnnnn 22

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TABLE OF AUTHORITIES

FEDERAL CASES

Agnello v. United States, 269 U.S. 20 (1925) .....cccceceeeeeeees 7

Almeida-Sanchez v. United States, 413 U.S. 266

a acted iciaiscececenreunsevesevevsevecsesones 19

Arizona v. Gant, 202 Ariz. 240 (2002) ..............00c0eeee 15, 16

Atwater v. City of Lago Visa, 532 U.S. 318 (2001)... 18

Bowers v. Hardwick, 478 U.S. 186 (1986) .............cccccccceeee 2

Boyd v. United States, 116 U.S. 616 (1886) «0.0.0... 20

California v. Acevedo, 500 U.S. 565 (1991)... cccecceeeeees 19

California v. Carney, 471 U.S. 386 (1985) «00... 5,19

Carroll vy. United States, 267 U.S. 132 (1925) ..............:. 6,7

Chambers v. Maroney, 399 U.S. 42 (1970) .......ccceeceees 9,18

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

Colorado v. Bertine, 479 U.S. 367 (1987)............:cccceceeeees 17

Coolidge v. New Hampshire, 403 U.S. 443 (1971)....... 8, 12

Delaware v. Prouse, 440 U.S. 648, 662 (1979)... 5

Dyke v. Taylor Implement Manufacturing Co.,

ES Le 9

Florida v. Bostick, 501 U.S. 429 (1991)...........ccc eee eeeeeeees 17

Florida v. J.L., 529 U.S. 266 (2000)............c.ssssssessssesseees 18

Florida v. Jimeno, 500 U.S. 248 (1991) 20.0.0... eee 15,17

-jV-

Florida v. Rover, 460 U.S. 491 (1983) ........cccceceeeeeeeeeeeeeees 15

Florida v. Thomas, 532 U.S. 774 (2001) .........cccccc cece 11, 15

Florida v. White, 526 U.S. 559 (1999) ooo. ceccceee eee 16, 18

Go-Bart Importing v. United States, 282 U.S. 344

Eee sicnscccniseeiiceshateiniciiniciebeninitiondeniindaiiadinctiuindtalanasadnidiiins 7

Hill v. Colorado, 530 U.S. 703 (2000) ............ccccccccceeeeeees 11

Illinois v. McArthur, 531 U.S. 326 (2001) ....... cece 17

Katz v. United States, 389 U.S. 347 (1967) ..............0..c eee 19

Knowles v. lowa, 525 U.S. 113 (1998).......................000000. 13

Lawrence v. Texas, 539 U.S. _ (20003)............ccceeccceeeeeeees 2

Michigan v. Chesternut, 486 U.S. 567 (1988).............000 15

New York v. Belton, 435 U.S. 454 (1981)... passim

Owasso Independent Sch. District v. Falvo, 534

a ee rccccendscisoibiiiniiaiiddltndnmunnciadilbiinamindiaiiliass 3

Pennsylvania v. Labron, 518 U.S. 938 (1996) ..............000 5

Pennsylvania v. Mimms, 434 U.S. 106 (1977) 0.0.0.0... 19

Rakas v. Illinois, 439 U.S. 128 (1978)........... ccc cece eeeeeeeeeeeees 5

Renton v. Playtime Theatres, Inc., 475 US. 41

SE ccinicieniseuhinsniesinsiapaitieidaebiecnatasapiaincdaadibiihd acti kaatdacesiatie 1]

Schenck vs. Pro-Choice Network, 519 U.S. 357

EIGEN INT TITS S PTI FS SOPOT Pe 1]

South Dakota v. Opperman, 428 U.S. 364 (1976)......... 5,17

———o

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BaOey 0. CIM, FOS UB. 8 CIT acvceccccscvccscscenasenssscssanssenees 17

Texas v. White, 423 U.S. 67 (1975) ...............ccccccccssseceeeeees 18

United States v. Banks, 540 U.S. (2003)... 11

United States v. Brignoni Siiiain 422 U.S. 873

Sr Waa ckiciecssosetsiipidibnaecheiaihiteniicinndciadiadisanadenbeténianibicseuiniiiiina 17

United States v. Jeffers, 342 U.S. 48 ......ccccccccsssssscssseeceeees 19

United States v. Johns, 469 U.S. 478 (1985) ...........cccce econ 12

United States v. Ortiz, 422 U.S. 891 (1975) ..........cc eee 11

United States v. Place, 462 U.S. 696 (1983) ............... 12,17

United States v. Rabinowitz, 339 U.S. 56 (1950) ................ 7

United States v. Robinson, 414 U.S. 218 (1973) ............... 13

United States v. Ross, 456 U.S. 798 (1982)..........cccccceeeeees 19

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

Taal vvceinissascticinleamssiiticdunisciiabininnaitatenmeenimsincdibiedaiaanedmiets 21

United States v. Van Leeuwen, 397 U.S. 249

Ii iicssinssstethienasenncinitinesdnciiniiaitinteapintniaseninieiineatenebiiin 17

Wyoming v. Houghton, 526 U.S. 295 (1999).......ccccceee 6, 18

DOCKETED CASES

United States v. Flores-Montano, U.S. Supreme

Court Docket No. 02-1794, cert. granted, 14

SE, Fa sssecsistinsaseninntnisisinsusentiijaisiiiniveiibdiadiicmassiiiiii 11,17

-vi-

FEDERAL STATUTES

30 Geo. Il. Ch. 22, Sec. 5, 13, 22 Stat. 107-108,

111 (1757)

27 Geo. Il, ch. 16, Sec. 7, 21 Stat. 188 (1754)...

19 U.S.C. §1581(a)

Law Review Articles

Shashank S. Upadhye, Trademark Surveys:

Identification Of The Relevant Universe Of

Consumers Who Must Be Confused, 8

Fordham I.P., Ent. & Media L.J. 550, 564-

578 (June 1998)

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BRIEF OF SHASHANK S. UPADHYE

AS AMICUS CURIAE IN SUPPORT OF NEITHER

PARTY

With the consent of the Respondent but without

consent of the Petitioner, amicus curiae, Shashank S.

Upadhye respectfully submits this brief in support of

neither party.”

INTEREST OF AMICUS CURIAE

Shashank S. Upadhye is a lawyer who also studies

the Fourth Amendment search and seizure law with a

particular emphasis on the “automobile exception.”

Through this brief, Mr. Upadhye hopes to persuade this

Court to adopt a rule that reflects and reaffirms the

standards set forth in Chimel instead of adopting rigid

rules that emasculate the protections of the Fourth

Amendment: Moreover Mr. Upadhye writes to remind the

Court that the undisputed rule of the Fourth Amendment

is that warrants are required wherever reasonably

possible and warrantless searches are the very limited

exceptions. Furthermore, Mr. Upadhye writes to

dissuade this Court from adopting rules proposed by law

enforcement agencies that are couched in terms of

“national security” in the post-September 11' aftermath.

Because the ultimate relief sought by the parties

threatens both the interests of society and poses harm to

* Counsel of record for the United States consent, but Petitioner's

counsel did not. In accordance with this Court’s Rule 37.3(b), those

letters have been filed with the Clerk.

In accordance with Rule 37.6, amicus states that this brief was

authored in its entirety by the counsel listed on the cover, and no

person or entity other than the amicus listed on the cover made a

monetary contribution to the preparation or submission of this brief.

the respect for the Bill of Rights, Mr. Upadhye submits

this brief.

SUMMARY OF THE ARGUMENT

The question presented is: whether the bright line

rule announced in New York v. Belton, 435 U.S. 454

(1981) is confined to situations in which the _ police

initiated contact with the occupant while that person is in

the vehicle.

Regrettably, the answer is not that simple for via

prior cases that went unresolved by this Court, the

United States has disguised within this simple question a

hidden but frontal attack on Chimel v. California, 395

U.S. 752 (1969), and Belton. More particularly, the rule

professed by the United States further erodes the Chimel-

Belton rules and furthers the erosion of applicable Fourth

Amendment rights. Belton’s indisputable holding is that

“when a policeman has made a lawful custodial arrest of

the occupant of an _ automobile, he may _ as

contemporaneous incident of that arrest, search the

passenger compartment of that automobile. [footnote 3]”

Beltgn, 454 U.S. at 460. In footnote 3, the Court took

pains to also hold that the Belton holding “does no more

than determine the meaning of Chimel’s principles in

this particular and problematic content. It in no way

alters the fundamental principles established in the

Chimel case regarding the basic scope of searches

incident to lawful custodial arrests.” Accordingly,

because the Belton rule is predicated on the Chimel rule,

then the bases of the Chimel rule dictate the contours of

the Belton rule. The issue framed has enormous impact

on the resolution of the case. Compare, Bowers uv.

Hardwick, 478 U.S. 186 (1986)(narrowly framed issue)

with Lawrence v. Texas, 539 U.S. __ (2003)(overruling

Bowers on a more expansively framed issue). It is

respectfully suggested that the issue as framed is wholly

inadequate to the resolution of this case because it only

concerns an intent or reason to exit. Rather, the issue for

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resolution is: “may officers conduct a warrantless search

of a vehicle under Chimel-Belton if the arrestee was

within a spatial or temporal zone of the vehicle and does

it matter whether the arrestee exited the car

voluntarily?” See, Owasso Indep. Sch. Dist. v. Falvo, 534

U.S. 426, 431 (2002)(discussing merits of addressing

questions not squarely presented in petition and

certiorari grant).

None of the Supreme Court cases involving vehicle

searches made intent or motive an issue in whether the

search was permissible. Intent simply did not play a role

in vehicle searches. But space and time have, and do,

play a significant role in the vehicle cases. After all, the

very essence of Chimel was a search incident to a lawful

arrest in the areas where an arrestee could reach for

weapons or destroy evidence. To this end, only regional

appellate courts or state supreme courts have layered the

intent or motive factor onto the Chimel-Belton tests.

As such, the best rule to adopt is one that placates

the interests of the law enforcement agencies and the

rights of individuals. To this end, this brief suggests that

this Court adopt a new rule based on whether the

arrestee was within a spatial or temporal zone of the

vehicle as mandated by Chimel-Belton and ignore the

reasons the arrestee exited the car. There are, therefore,

four scenarios in the following matrix that defines the

permissibility of the search. Column one identifies the

reason for the arrestee’s exit from the vehicle. Column

two identifies whether the arrestee is within the

Constitutional spatial or temporal zone and column three

identifies whether a Constitutionally permissible search

can result. Column four identifies a precedent, if

available.

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Scenario | Exit Proximity | Result | Precedent

Reason

1 Police In-zone Search | Chimel &

Initiated Belton

2 Police Outside No Belton

Initiated Zone Search | maybe &

Fourth

Amend-

ment

3 Voluntary | In-zone Search | New Rule

& Chimel

4 Voluntary | Outside No New Rule

Zone Search | Chimel, &

Fourth

Amend-

ment

ARGUMENT

1. Belton Does Not Extend Beyond The Scope Of

Chimel, Which Is Strictly Construed.

Belton’s holding does not at all suggest that the

reason an arrestee exited a vehicle is important. Belton

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 compa .ment of that automobile. [footnote 3]”

Belton, 454 U.S. at 460. In footnote 3, the Court took

pains to also hold that the Belton holding “does no more

than determine the meaning of Chimel’s principles in this

particular and problematic content. It in no way alters

the fundamental principles established in the Chimel

case regarding the basic scope of searches incident to

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lawful custodial arrests.” Chimel provided for

warrantless searches incident to a lawful arrest only

under certain narrow circumstances. Accordingly, it is

indisputable that Belton was a further narrowly drawn

exception to Chimel’s already narrow exception. Chimel,

therefore, as the broader rule dictates the contours of

Belton. Said another way, Belton cannot be broader than

Chimel.

Now it is true that the Court has stated that “cars

are not to be treated identically with houses or

apartments for Fourth Amendment purposes.” Rakas v.

Illinois, 439 U.S. 128, 148 (1978). The purpose of that

distinction rests in the inherent mobility of the vehicle

creating the exigency of flight, California v. Carney, 471

U.S. 386, 392-93 (1985), Pennsylvania v. Labron, 518 U.S.

938, 940 (1996)(“If a car is readily mobile and probable

cause exists to believe it contains contraband, the Fourth

Amendment ... permits police to search the vehicle

without more.”); or because there is a reduced expectation

of privacy in vehicles given the pervasive governmental

regulation of automobiles. South Dakota v. Opperman,

428 U.S. 364, 367-68 (1976) (“Automobiles, unlike homes,

are subjected to pervasive and continuing governmental

regulation and controls, including periodic inspection and

licensing requirements...The expectation of privacy as to

automobiles if further diminished by the obviously public

nature of automobile travel.”). But see, Delaware uv.

Prouse, 440 U.S. 648, 662 (1979)(a person operating a car

“does not lose all reasonable expectation of privacy simply

because the automobile and its use are subject to

government regulation’).

Chimel was the first case to sanction the concept of a

search incident to a lawful arrest. Chimel acknowledged

that Court decisions on warrantless searches were far

from consistent and acknowledged the difficulty in

creating hard and fast rules. Chimel, 395 U.S. at 755.

Chimel recognized, as a matter of First Principles, that

“

the Framers adopted the Fourth Amendment as “a

-6-

reaction to’ the general warrants and _ warrantless

searches that had so alienated the colonists and had

helped speed the movement for Independence.” Chimel,

395 U.S. 761. As a matter of Framer’s Intent or early

common law at the time of the Fourth Amendment, I

found no case expressly discussing the application of the

Amendment to horses, buggies, wagons, stage coaches,

saddle bags, or other early modes of transportation as

opposed to idly speculating what the common law was as

the Court did in Carroll v. United States, 267 U.S. 132

(1925). See, Wyoming v. Houghton, 526 U.S. 295, 299

(1999)(“The Fourth Amendment protects “[t]he right of

the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.”

In determining whether a particular governmental action

violates this provision, we inquire first whether the action

was regarded as an unlawful search or seizure under the

common law when the Amendment was framed”). !

Against this backdrop, the Chimel court pronounced

the twin motives for warrantless searches as incident to a

lawful arrest. The first motive was to protect the

arresting officer from harm, e.g., to prohibit the arrestee?

from reaching for a weapon. The second motive was to

prevent the destruction or concealment of evidence.

Chimel, 395 U.S. at 762-63. Belton did not add anything

more except extend Chimel to vehicles. Again, neither

Chimel’s nor Belton’s holdings suggested that the reason

|

See, e.g., 30 Geo. I]. Ch. 22, Sec. 5, 13, 22 Stat. 107-108,

111 (1757Mauthorizing arrest of people obstructing public

streets, lanes or open passages with pipes, butts, barrels, casks,

or an empty cart, car, dray, or other carriage); see also, 27 Geo.

II, ch. 16, Sec. 7, 21 Stat. 188 (1754)(permitting arrest for

negligent carriage drivers).

>

The term “arrestee” denotes the vehicle occupant who

exited the vehicle and was subsequently arrested and convicted

based on the evidence obtained in the post-exit search.

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the arrestee exited the vehicle was important. Chimel

did not involve vehicles at all. But what Chimel and

hence Belton, did was endorse a zone-based approach.

1A. _Chimel Implicitly Adopted A Spatial And

Temporal Relationship Theory Tying The Item Searched

To The Arrestee.

As to the first motive, Chimel went to great pains to

discuss “spatial and temporal” relationships incident to a

warrantless search. With regard to the spatial

relationship of the arrestee to the disputed evidence, the

Court noted the gradual progression of the scope of the

“space” that could be searched:

e the right was to search the arrestee only, not

anything else (Chimel, 395 U.S. at 755);

e the permitted “space” morphed into the person or-

area “in his control” (Chimel, 395 U.S. at 755-56; citing to

Carroll v. United States, 267 U.S. 132, 158 (1925));

e the space then became the area “in the possession

or under the control of’ the arrestee (Chimel, 395 U.S. at

760; citing to United States v. Rabinowitz, 339 U.S. 56

(1950));

e the space then became the area in “the offender's

immediate custody” (Chimel, 395 U.S. at 757; citing Go-

Bart Importing v. United States, 282 U.S. 344, 456

(1931)); and

e the space became “the” place — as opposed to just

any place — “where the arrest is made in order to find and

seize things connected with the crime as its fruits”

(Chimel, 395 U.S. at 756; citing to Agnello v. United

States, 269 U.S. 20, 30 (1925)).

But the underlying and indisputable theme in

Chimel and the cases cited therein that is consistent with

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the first motive was that the space to be searched was

either the arrestee himself or the space in_ his

“immediate” or “direct” or “in his control.” There is no

doubt that regarding the first motive, the Chimel rule

was that “there is ample justification, therefore, for a

search of the arrestee’s person and the area ‘within his

immediate control’ — construing that phrase to mean the

area from within which he might gain possession of a

weapon or destructible evidence.” Chimel, 395 U.S. at

763.

As such, the most consistent reading of this language

is that “reachability” is the key determinant.

“Reachability” as a test avoids fictitious, cartoonish, or

incredible hypotheses that persons well outside the

wingspan or at some distance from the vehicle, could be

in theoretical reach of the weapon. According to Merriam

Wenster’s dictionary, “immediate” means “directly

touching or concerning a person or thing” or “acting or

being without the intervention of another object, cause, or

agency. Belton also sanctioned reachability as the

determinant wherein the Court said that the space to

search was the “passenger compartment [if] within reach

of the arrestee” Belton, 453 U.S. at 460; and “drawers

within an arrestee’s reach could be searched.” Belton, 453

U.S. at 461. It follows that reachability is the linchpin of

the spatial relationship test for reachability means “an

area within the immediate control” of the arrestee.

Confining Belton to its facts and narrow rule creates

the appropriate rule that where the custodial arrestee is

at some distance from his vehicle, or is in custody, then

his vehicle is deemed to be at “another place” outside the

vicinity of the arrest domain and hence a search is not

incident to a lawful arrest. See, Coolidge v. New

Hampshire, 403 U.S. 443, 457 (1971)(“Mr. Justice Black’s

opinion for a unanimous Court held that ‘once an accused

is under arrest and in custody, then a search (of his car)

made at another place, without a warrant, is simply not

incident to the arrest.”). See also, Dyke v. Taylor

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= “tint ites tele hae od at 6 ae <a het oC

-9-

Implement Mfg. Co., 391 U.S. 216, 220-21 (1968)(holding

that the search of the vehicle outside the courthouse after

the arrestees were well into custody inside the courthouse

was too remote in time or place to be incident to a lawful

arrest). Moreover, as held in Chambers v. Maroney, 399

U.S. 42, 47 (1970), that the “search that produced the

incriminating evidence was made at the police station

some time after the arrest and cannot be justified as a

search incident to an arrest: ‘Once an accused is under

arrest and in custody, then a search made at another

place, without a warrant, is simply not incident to the

arrest.”

As to the temporal relationship, this factor adjudges

how long after the arrestee is in safe custody may the

officer then go back and search the vehicle. It is true that

once the arrestee is removed in time from his vehicle, the

odds of him obtaining the weapon or destroying the

evidence significantly decreases. One argument that is

oft trumpeted by police is that a warrantless search is

necessary at the time because “tracing the car and

searching it hours or days later would of course permit

instruments or fruits of crime to be removed from the car

before the search.” Chambers v. Maroney, 399 U.S. 42, 51

n. 9 (1970). But if Chimel’s motives are to hold true,

there is no significant likelihood that a custodial arrestee

. Notwithstanding that Chimel was decided the previous

year, the Chambers court held that the search was legal

because: (a) the contents of the car perhaps would never be

found again if the search was delayed while a warrant was

sworn out, 399 U.S. at 51; (b) balancing the need for the

warrantless search where probable cause existed with the need

for a warrant, 399 U.S. at 52; (3) because it was dark outside, a

careful search was impractical and perhaps not safe, 399 U.S.

at 52 n. 10; and (4) the vehicle owner should be thankful that

the police impound the vehicle at the stationhouse, 399 U.S. at

52 n. 10.

-10-

can remove instruments or fruits once under custodial

arrest.

Il. Chimel and _ Belton Mandate a Zone-Based

Approach That Ignores The Arrestee’s Motive For Exiting

The Vehicle.

The key consideration, of course, must be on the

spatial and temporal relationship of the arrestee to the

vehicle at the time of the arrest, not at the time of the

search because it is the arrest time where Chimel said

that officer safety is tantamount. Chimel, 395 U.S. at

762-63. To this end, one can postulate a zone around the

vehicle, both in time and place, against which the

Constitutionality of a search is measured. There are,

therefore, four scenarios in the following matrix that can

define the Constitutionality permissibility of the search.

The precise question on certiorart involves the reason for

the arrestee’s exit. Neither Chimel or Belton explicitly

mentioned whether the warrantless search was

permissible based on the reason the arrestee exited. Both

cases are silent on the reason, motive, or intent to exit.

The parties can point to no explicit language that

sufficiently discusses reason, motive, or intent. The new

rule proffered now Constitutionally ignores the intent or

motive and consequently avoids subjectivity. In essence,

arguing over intent creates much ado about nothing.

ILA. Why a Zone-Based Approach is Necessary.

The creation of the spatial and temporal zone is

absolutely necessary to provide adequate guidance to law

enforcement and to individuals. Without a zone-based

approach, there are no limitations to the Chimel-Belton

rule because there is “as much an arrest 24 hours later,

or 48 hours later. There was just as much an arrest as if

he had been 3 miles away, or 30 miles away, [and if

measuring the operative condition as the time of the

arrest, then the police] could search 2 days later and they

could) search 30 miles away.” Transcript of Oral

-11-

Argument in Florida v. Thomas, Sup. Ct. Docket No. 00-

391 (25 April 2001), pg. 6-7. As this statement shows,

quite plainly the Chimel motives are not implicated at all.

This Court has not shied away from creating,

defeating, or upholding spatial and temporal zones. For

example, in the so-called abortion bubble zones, this

Court sanctioned zones around abortion clinics into which

protesters may not venture; see, Schenck vs. Pro-Choice

Network, 519 U.S. 357 (1997) and Hill v. Colorado, 530

U.S. 703 (2000)(upholding zones around clinics); and in

residential neighborhoods, Renton v. Playtime Theatres,

Inc., 475 U.S. 41. (1986)(upholding zone around

residential neighborhoods for adult-themed bookstores or

videostores); but see ostensibly United States v. Flores-

Montano, Sup. Ct. Docket No. 02-1794, cert. granted (per

19 U.S.C. §1581(a), providing no boundaries and

unfettered discretion to Customs officials as the text of

statute says, “at any time...at any place in the United

States...and search the ... vehicle... and every part

thereof...and use all necessary force to compel

compliance.”). This Court may strike down a statute that

permits no boundary limitation and unfettered discretion

to the officers. See United States v. Ortiz, 422 U.S. 891

(1975)(invalidating traffic checkpoint designed to locate

illegal aliens because too far from border, statistical

effectiveness unsubstantiated, and too great uncheckable

police discretion).

Similarly, the Court approved of temporal zones,

such as in the just-decided case of United States v. Banks,

540 US. — (2003)(Sup. Ct. Docket No. 02-

473)(upholding 15-20 second period as being adequate

time under the “knock and announce” rule). In another

area of law, likelihood of confusion to prove trademark

infringement includes confusion after the purchase

decision. See generally, Shashank 5S. Upadhye,

Trademark Surveys: Identification Of The Relevant

Universe Of Consumers Who Must Be Confused, 8

-12-

Fordham I.P.. Ent. & Media L.J. 550, 564-578 (June

1998)(analvzing spatial and temporal relationships in

trademark infringement).

The United States may argue that an expansive

temporal zone is permitted under United States v. Johns,

469 U.S. 478 (1985), wherein the Court permitted a

warrantless search days after the custodial arrest and

seizure. There the Court stated that there “is no

requirement that the warrantless search of a vehicle

occur contemporaneously with its lawful seizure.” 469

U.S. at 484. In Johns, the Court noted, however, that

“officers may indefinitely retain possession of a vehicle

and its content before they complete a vehicle search.”

469 U.S. at 487. But Johns stated the basis for searching

the vehicle days later was because the probable cause

that gave rise to arrest involved the vehicle itself.

Moreover, Johns stated:

|Wje do not suggest that police officers may

indefinitely retain possession of a vehicle and its

contents before they complete a vehicle search. Cf.

Coolidge v. New Hampshire, 403 U.S. 443, 523

(1971) (White, J., dissenting). Nor do we foreclose

the possibility that the owner of a vehicle or its

contents might attempt to prove that delay in the

completion of a vehicle search was unreasonable

because it adversely affected a_ privacy or

possessory interest. Cf. United States v. Place, 462

U.S. 696 (1983).

The plain language of Johns therefore limits the

temporal zone to those instances in which the vehicle

itself gave rise to the probable cause to search and seize.

In addition, as discussed below, Johns can be reconciled

on the basis of a temporary search seizure.

Belton also implicitly noted that searches that occur

temporally after the arrest are not permitted as they

——

ot.

“cannot be viewed as incidental to the arrest or as

justified by any other exigency.” Belton, 453 U.S. at 462.

Fundamentally, the zone analysis provides a very

workable rule. It avoids asking the embarrassing

question to the arresting officer: “After you had

handcuffed him and put him in your squad car, what was

the particular threat to you or why did you believe that

the arrestee could still destroy evidence?” An officer

cannot credibly answer that he was in danger or that

evidence was destroyed if the arrestee was secured and in

custody. It also comports with Knowles v. lowa, 525 U.S.

113, 114 (1998) where this Court also declined to adopt

the bright line rule that traffic citations permitted a full-

blown scope. In so holding, this Court noted that, “[I]n

Robinson [United States v. Robinson, 414 U.S. 218

(1973)], we held that the authority to conduct a full field

search as incident to an arrest was a “bright-line rule,”

which was based on the concern for officer safety and

destruction or loss of evidence, but which did not depend

in every case upon the existence of either concern. Here

we are asked to extend that “bright-line rule” to a

situation where the concern for officer safety is not

present to the same extent and the concern for

destruction or less of evidence is not present at all. We

decline to do so.” Creating a zone-based approach and

ignoring the reasons for exiting comports with the

Knowles theory that there are circumstances in which

plainly officer safety and evidence destruction are no

longer implicated.

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I1.B. Explanation of Scenarios and Outcomes

There are, therefore, four possible scenarios based on

the zone-based approach.

Column one identifies the reason for the arrestee’s

exit from the vehicle. Column two identifies whether the

arrestee is within the Constitutional zone at the time of

the arrest and column three identifies whether a

Constitutionally permissible search can result. Column

four identifies a precedent, if available.

Scenario | Exit Proximity | Result | Precedent

Reason

| Police In-zone Search | Chimel &

Initiated ‘| Belton

2 Police Outside No Belton

Initiated Zone Search | maybe

3 Voluntary | In-zone Search | New Rule

, & Chimel

4 Voluntary | Outside No New Rule

Zone Search

Scenario One is. self-explanatory as this is the

current rule under Chimel and clearly the case under

Belton. Because the arrestee was within the zone of the

vehicle at the time of the search. Both Chimel motives

are implicated because the arrestee can reach for a

weapon and can destroy evidence.

Scenario Two does not permit a search in this case

because the Chimel motives are not implicated, at the

time of the arrest, and it is not clear whether Belton holds

that the search may take place. Whether Belton applies

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is precisely the issue in this case and was in Florida v.

Thomas, 532 U.S. 774, 776 (2001)(dismissing certiorari

for want of jurisdiction), and in Arizona v. Gant, 202 Ariz.

240 (2002), cert. granted, 2003 WL = 1903726

(2003)(certiorari dismissed). This is because when the

arrestee is outside the zone, none of the Chimel factors

can apply, and objectively, the arrestee cannot reach for a

weapon nor destroy evidence, and an attempt to do so,

would be manifestly unreasonable. See, Florida v.

Jimeno, 500 U.S. 248, 250 (1991)(“the touchstone of the

Fourth Amendment is reasonableness”); Florida v. Royer,

460 U.S. 491, 506 (1983)(eschewing bright line tests and

emphasizing reasonableness inquiry); Michigan — v.

Chesternut, 486 U.S. 567, 572-73 (1988)(rejecting both

parties desire for bright line rule in favor of the

traditional contextual approach). Accordingly, this

search is not allowed because the objectively contextual

factors elucidating whether the arrestee was within the

zone do not permit a search.

Scenario Three is a narrow rule that satisfies a law

enforcement agency's desire to remove

voluntariness/police initiation from the Chimel-Belton

inquiry, but reinforces that the Chimel motives must be

examined. Under this scenario, a law enforcement

agency gets what it wants — that is, the ability to search a

quick witted arrestee who “outfoxes” the flat-footed officer

by voluntarily exiting the vehicle. Ignoring intent avoids

subjective determinations, such as:

(1) whether the arrestee was aware of the police

when he got out of the car, a determination that may

depend on whether the police are in uniform or a marked

squad car, police lights or sirens have been activated, or

the arrestee was impaired in a manner that could have

affected his awareness of the police: (2) whether, the

arrestee appeared to get out of the car voluntarily, the

arrestee nevertheless did so to avoid the [Belton rule};

and (3) whether an _ officer sufficiently signaled

confrontation with an arrestee while he was in the car,

-16-

such that the arrestee got out of the car due to the

officer's contact as opposed to another reason. Amicus

Brief of the United States in Arizona v. Gant (Sup. Ct.

Docket No. 02-1019), pg. 17.

As such under Scenario Three, officers may search

the car, irrespective of the reason of the arrestee’s exit

because at the time of the arrest, the arrestee was within

the Chimel-Belton zone.

Scenario Four, like the second, ignores’ the

voluntariness/police initiation subjective inquiry and

returns the inquiry’s focal point to Chimel’s twin motives.

Here, because the arrestee is outside the zone of the

vehicle at the time of the arrest, no warrantless search is

permitted.

ILC. Justification For A Zone-Based Approach

These scenarios permit the authorities to:

(a) ignore subjective inquiries into the arrestee’s

intent in exiting the vehicle (the very issue in Thomas

and Gant):

(b) search a vehicle under the Chimel-Belton legal

fiction to satisfy practical and doctrinal concerns only

insofar that Chimel’s undisputed basic twin motives are

objectively examined;

(c) search without a warrant in situations that are

“strictly tied to and justified by the circumstances which

rendered its initiation permissible,” Chimel, 395 U.S. at

762, Belton, 453 U.S. at 457:

(d) obtain the necessary warrant issued by the

neutral magistrate in those situations where the

Constitution requires it for Fourth Amendment

compliance (but see, Florida v. White, 526 U.S. 559

(1999)(“Fourth Amendment does not require the police to

——-——— -

- ~~

~ o47-

obtain a warrant before seizing an automobile from a

public place when they have probable cause to believe

that it is forfeitable contraband”, and as when the

arrestee is outside the zone;

(e) comply, as necessary, with the Constitutionally

acceptable requirements of inventory searches, see

Colorado v. Bertine, 479 U.S. 367 (1987), South Dakota v.

Opperman, 428 U.S. 364 (1976), or comply with

“temporary seizures” while the officers swear out a

warrant to search the car, see Illinois v. McArthur, 531

U.S. 326 (2001)(permitting officer's to deny entry into

arrestee’s own home temporarily seizing home whilst

other officer's obtain search warrant); United States v.

Place, 462 U.S. 696, 706 (1983)(“we conclude that when

an officer's observations lead him reasonably to believe

that a traveler is carrying luggage that contains

narcotics, the principles of Terry |v. Ohio, 392 U.S. 1

(1968)] and its progeny would permit the officer to detain

the luggage briefly to investigate the circumstances that

aroused his suspicion, provided that the investigative

detention is properly limited in scope;” (emphasis added);

United States v. Brignoni Ponce, 422 U.S. 873

(1975)(permitting officer to briefly detain vehicle on

suspicion of carrying illegal aliens); United States v.

Flores-Montano, U.S. Supreme Court Docket No. 02-1794,

cert. granted, 14 Oct. 2003 (whether Customs may

remove, disassemble vehicle’s gas tank during border

search); and United States v. Van Leeuwen, 397 U.S. 249,

253 (1970) (holding 29-hour detention of mailed p: -kage

reasonable given unavoidable delay in obtaining warrant

and minimal nature of intrusion);

(f) obtain consent of the arrestee to search the car,

Florida v. Bostick, 501 U.S. 429 (1991), Florida v. Jimeno,

500 U.S. 248 (1991); and

(g) provide a bright-line rule consistent with Belton

to provide a “single familiar standard,” Belton, 453 U.S.

at 458-59, and ensure that “responsible Fourth

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Amendment balance is not well-served by standards

requiring sensitive, case-by-case determinations and

government need, less every discretionary judgment in

the field be converted into an occasion for constitutional

review. Atwater v. Citv of Lago Visa, 5°2 U.S. 318, 347

(2001).

The United States would have this Court rule on the

very precise issue of whether voluntariness permits a

vehicle search without analyzing whether the Chimel

twin motives are present. That is, the rule proffered

assumes that the Chimel motives are satisfied—without

any examination if that truly is the case. As such, if

adopted, the rule would in effect become: “Officers may

search a vehicle, regardless of the reason the arrestee

exited the vehicle, at any time thereafter, irrespective of

the distance of the arrestee to the vehicle, and

irrespective of whether the arrestee could have

reasonably obtained a weapon or destroyed evidence.”

Thus, this further exception to Chimel-Belton would in

effect swallow the general rule of Chimel and its twin

motives, thereby emasculating whatever privacy rights

anyone had in his person or effects as related to an

automobile. See, Florida v. J.L., 529 U.S. 266, 273

(2000)(“rejecting a per se exception to the "knock and

announce" rule for narcotics cases partly because "the

reasons for creating an exception in one category [of

Fourth Amendment cases] can, relatively easily, be

applied to others," thus allowing the exception to swallow

the rule”).

To be sure, under the current law surrounding

vehicles, there has been a slow but concerted erosion of

any privacy rights in automobiles. See, Wyoming v.

Houghton, 526 U.S. 295 (1999)(passenger has no privacy

rights in his effects); Chambers v. Maroney, 399 U.S. 42

(1970)(the search was valid, despite the fact that once the

car was at the station-house the police could easily have

gotten a search warrant); Texas v. White, 423 U.S. 67

(1975) (same); Florida v. White, 526 U.S. 559

-19-

(1999)(police have a right to impound the car after arrest

and search it without a warrant even where they had

advance notice and could easily have gotten a search

warrant before the entire episode); United States v. Ross,

456 U.S. 798 (1982) and California v. Carney, 471 U.S.

386 (1985)(where the police have probable cause to

believe that a car is being used to transport contraband,

and they stop it, they may conduct a warrantless search

not only-of the car but of closed containers in the car.

They may do this on the scene, without even impounding

the car (as they have to do in the above "search at the

station-house after arrest" scenario); California v.

Acevedo, 500 U.S. 565 (1991)(even if the police’s probable

cause relates solely to a closed container inside the car,

not to the car itself, the police may stop the car and seize

and open the container, all without a_ warrant);

Pennsylvania v. Mimms, 434 U.S. 106 (1977)(on a stop

based on reasonable suspicion, an officer may require the

driver to exit the vehicle without specifically showing

that requiring such an action was necessary for the

officer's protection); Almeida-Sanchez v. United States,

413 U.S. 266 (1973) (warrantless stop and search of auto

by roving patrol near border). See, generally, Acevedo,

500 U.S. at 582-84 (Scalia, J)(outlining the 20+

exceptions to warrantless searches).

"Over and again this Court has emphasized that the

mandate of the [Fourth] Amendment requires adherence

to judicial processes," United States v. Jeffers, 342 U.S.

48, 51, and that searches conducted outside the judicial

process, without prior approval by judge or magistrate,

are per se unreasonable under the Fourth Amendment -

subject only to a few specifically established and well-

delineated exceptions. Katz v. United States, 389 U.S.

347, 357 (1967). To this end, the new zone _ based-

approach comports with the general rules of warrants

and provides a workable rule for law enforcement.

Because Chimel expressly limited’ warrantless

searches to being incident to a lawful arrest, and that

-20-

Belton only narrowly extended Chimel to the passenger

area of a vehicle to effectuate the Chimel policies,

whether the occupant exited voluntarily or by police

instigation is irrelevant. Presumptively a search is only

permitted under Belton if the Chimel policies are

satisfied. Because the Chimel factors only implicate the

spatial and temporal relationship of the arrestee to his

vehicle, a very workable rule can be defined.

Somewhere along the way, the Carroll case and its

statutory search for contraband in vehicles and dicta

from that case have contorted the Fourth Amendment’s

applicability to vehicles. This pernicious effect has had

profound implications on vehicle operators or passengers

to the extent that almost nobody has any reasonable

privacy rights in a vehicle. In Boyd v. United States, 116

U.S. 616, 635 (1886), the Court noted (in an era before

widespread vehicle use):

though the proceeding in question is divested

of many of the aggravating incidents of actual

search and seizure, yet, as before said, it contains

their substance and essence, and effects their

substantial purpose. It may be that it is the

obnoxious thing in its mildest and least repulsive

form; but illegitimate and unconstitutional

practices get their first footing in that way,

namely, by silent approaches and slight deviations

from legal modes of procedure. This can only be

obviated by adhering to the rule that

constitutional provisions for the security of person

and property should be liberally construed. A close

and literal construction deprives them of half their

efficacy, and leads to gradual depreciation of the

right, as if it consisted more in sound than in

substance. It is the duty of courts to be watchful

for the constitutional rights of the citizen, and

against any stealthy encroachments thereon.”

-2]-

Ill. -Application Of The Zone Based Approach To

Thornton

In this case, the facts found by the trial court,

affirmed on appeal, and not challenged here all indicate

that Mr. Thornton: (a) exited the car on his own; (b) was

arrested while Mr. Thornton was standing beside his car;

(c) was placed into custody in the squad car; and (d)

admitted he was in “close proximity” to his car.

Thornton, 325 F.3d 189, 196 (4'» Cir. 2003). It is unclear

from the record whether the “close proximity” of Thornton

satisfies Chimel’s spatial test. It is unclear whether this

finding is a finding of fact or conclusion of law warranting

deferential or de novo review respectively by this Court.

Furthermore, if the zone-based approach is adopted, then

this Court may affirm the conviction if “close proximity”

brings Mr. Thornton within the zone. Alternatively, the

Court ought to remand the case to the district court for

further examination consistent with the zone-based

approach to determine if he was in the zone. It may occur

on further examination that under the zone-based

approach, his facts satisfy Scenario 3 in that he

voluntarily exited the car and was in the zone at the time

of his arrest. As such, his conviction ought to be affirmed

as the search was Constitutionally permissible under

Chimel, as modified by Belton. On the other hand, the

facts may indicate that he was outside the zone and thus

suppression was Constitutionally required.

CONCLUSION

For these reasons, this Court ought to adopt a zone

based approach that gives fidelity to Chimel-Belton and

limits the number of exceptions created under the Fourth

Amendment.

Respectfully submitted,

Shashank S. Upadhye*

2050 Bunker Circle

Naperville, IL 60563-1892

(312) 443-1836 (day)

Counsel for Amicus Curiae Shashank S. Upadhye

*Counsel of Record

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