Amicus Curiae Brief — Thornton v. United States

Cy DEC 1 8 208

No. 03-5165 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

2: >>

MARCUS THORNTON,

af oe

Petitioner,

UNITED STATES,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION, THE ACLU OF VIRGINIA, AND THE

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF PETITIONER

LISA KEMLER

ZWERLING & KEMLER, P.C.

108 North Alfred Street

Alexandria, Virginia 22314

(703) 684-8000

TRACEY MACLIN

Counsel of Record

BOSTON UNIVERSITY

SCHOOL OF LAW

765 Commonwealth Avenue

Boston, Massachusetts 02215

(617) 353-4688

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

TABLE OF CONTENTS

ee Ca eR ccieseincenstictiniccrsenicndiinainincaiarnannnanaiet Hi

INTEREST OF AAQICT...............000sc0000000 iusnaalcienmicaiiosaupliadeibeed ]

Se gt ee 2

SUMMARY OF ARGUMENT ...0ccccscsocccscesscesssscecsscesscescoccesees 4

tei sinviinicnhieiisciiiildataiiiiinndibandiinninidagipiatianicomunianapneeten 7

I. THE BACKGROUND AND DEVELOPMENT OF

ET ae Gi Te errerceentcseccieennsccnnsietsnsneniipbienustetes 7

A. The Factors Compelling Bel/ton’s Bright-Line Rule....... 12

B. The Factors That Compelled Belton’s Holding Are

Absent When An Officer Seizes A Person Outside

Fi ee ncscinsiatedncintnniatinainciionenntimniniiimnicninn 15

Il. BELTON’S HOLDING DOES NOT EXTEND TO ANY

“RECENT OCCUPANT” OF AN AUTOMOBILE ......17

A. Belton’s Per Se Rule Applies Only When Police Seize

A Person In A Car And The Person Is Subsequently

SEITE siceinicticcshanciesinunbiununnnniieniiteimetenienininnedteienteonnesen 18

B. The Terms “Recent Occupant” And “Close Proximity”

Ase inherently AriDigiouss ............cccscsrssssesesessecseeseseoeees 19

C. A “Recent Occupant” Rule Is Not Required By This

ST initecunseneniecnnsdontonunninionsnsnatsseceiatdenunenete 25

i

Ill. BELTON’S PER SE RULE SHOULD BE RESTRICTED

TO CASES WHERE A PERSON WAS SEIZED WHILE

RE GOAT ITE GF A CR cccccscnccssinssccmsenvinisiiiniannees 26

CUTE SAFES ecnncsnemmmnnnntiiniiiinma 30

li

TABLE OF AUTHORITIES

Cases

Arizona v. Dean, 76 P.3d 429 (Ariz. 2003).............. 21, 23, 24

Arizona v. Gant, 72 U.S.L.W. 3280 (Oct. 20, 2003).... passim

California v. Hodari D., 499 U.S. 621 (1991)........ ce cceeeeeeee 28

Chimel v. California, 395 U.S. 752 (1969) ..............06. passim

Colorado v. Bannister, 449 U.S. 1 (1980)...........cceceeeeeeeeeeeees 5

Colorado v. Savedra, 907 P.2d 596 (1995) ..........ccceeeeeee 20, 28

Delaware v. Prouse, 440 U.S. 648 (1979)... ccccceceeeeeeees 27

Draper v. United States, 358 U.S. 307 (1959) ......s:cesseseeseee: 13

Florida v. Bostick, 501 U.S. 429 (1991)... ecceeeeeeeeeeee 5

Florida v. Thomas, 532 U.S. 774 (2001)...........::cceeee passim

Glasco v. Virginia, 513 S.E. 2d 137 (Va. 1999)......... 6, 14, 17

Harris v. United States, 331 U.S. 145 (1947)............. 8, 24, 26

Idaho v. Foster, 905 P.2d 1032 (Idaho Ct. App.1995)......... 15

Knowles v. Iowa, 525 U.S. 113 (1998) ........cececceeeeeeseeeeeeeeees 4

Maryland v. Wilson, 519 U.S. 408 (1997).......ccccccseecseseeeeees 29

McDonald v. United States, 335 U.S. 451 (1948)................ 1]

Michigan v. Fernengel,

549 N.W.2d 362 (Mich. App. 1996)...........:cccseeseesereeeees 20

ill

Michigan v. Long, 463 U.S. 1032 (1983) ......... eee 3, 25, 26

Minnesota v. Robb, 605 N.W. 2d 96 (Minn. 2000)..........5, 17

Nebraska v. Gonzalez,

487 N.W.2d 567 (Neb. App.1992) ..cscsssssssssesessssssssssssee 28

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

New York v. Class, 475 U.S. 108 (1986) .0........cceeeceeeeeeeeeeeee 29

Ohio v. Retherford, 639 N.E. 2d 498 (Ohio App. 1994)......28

Pennsylvania v. Mimms, 434 U.S. 106 (1977) ..c.cesceseseeseeees 29

People v. Long, 288 N.W. 2d 629 (Mich. App. 1980) ......... 25

People v. Stehman, 783 N.E. 2d 1 (Ill. 2002)..............04. 15, 23

Perey et, Gil, SEE UE. 8 Co ecenscnsccssssescnvenennesneecsovepnn +

Texas v. Kelly, 963 S.W.2d 866

(Tex. App — San Antonio 1998) .0...... cc ceceeeeeereeeeeees 19, 20

United Stated v. Fafowora, 865 F.2d 360 (D.C. Cir.), cert.

ee, GS Vas Se Cr vetcrencenseieeniitsitesiinanniebiaasiinaiign 15

United States v. Green, 324 F. 3d 375 (Sth Cir. 2003)......... 23

United States v. Karlin, 852 F.2d 968 (7th Cir.1988),

cert. denied, 489 U.S. 1021 (1989)... eeecssseereeeeeeeees 13

United States v. Rabinowitz, 339 U.S. 56 (1950).............. 8, 24

United States v. Robinson, 414 U.S. 218 (1973)... eee 7

iV

te ie Oe eS

Sa a

mean ee eke Dee «

United States v. Sholola,

SO Fe ee CFE FBT P ectancctncsensennssinscenensinsnscinn 21, 22

Vale v. Louisiana, 399 U.S. 30 (1970) .....eceeseeeeeeees 16, 24, 29

Wyoming v. Houghton, 526 U.S. 295 (1999)......cccceeeeeees 7, 26

Other Authorities

William J. Cuddihy, The Fourth Amendment: Origins and

Original Meaning, 602-1791 (1990) ou... ceeeeeeeseeeseeeeeeees 8

Thomas Y. Davies, Recovering the Original Fourth

Amendment, 98 MICH. L. REV. 547 (1999) .............eeeees 7,8

3 Wayne R. LaFave, SEARCH AND SEIZURE,

a HED tecenitesictesncccinciissinteniininiticiianienitin 13, 18, 23

2 Wayne R. LaFave, SEARCH AND SEIZURE,

ie Fak eae cicsliissiiianedinteecnieiiaieianamenibaieaainaiaees passim

Myron Moskovitz, A Rule in Search of a Reason: An

Empirical Reexamination of Chimel and Belton,

SOUT THT Eins SURI s: ccntciasteniisinnicindiecigneneemisnabianieaiaanemninipiedilinni 9

Telford Taylor, Two STUDIES IN CONSTITUTIONAL

gE ,

Vv

INTEREST OF AMICI'

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with more

than 400,000 members dedicated to the principles of liberty

and equality embodied in the Bill of Rights. The ACLU of

Virginia is one of its statewide affiliates. This case involves

the proper interpretation of New York v. Belton, 453 U.S. 454

(1981), which held that a valid arrest of an automobile

occupant permits a contemporaneous search of the passenger

compartment incident to arrest. Earlier this term, the ACLU

filed an amicus brief in Arizona v. Gant, 72 U.S.L.W. 3280

(Oct. 20, 2003) (vacated and remanded in light of an

intervening state court decision), which addressed whether

Belton’s holding extended to a “recent occupant” of a

vehicle. That brief proposed that the per se rule of Belton

should be confined to cases where police seize a person

inside the vehicle.

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit corporation founded in

1958 to ensure justice and due process for persons accused of

crime; to foster integrity, independence, and expertise of the

criminal defense bar; and to promote the proper and fair

administration of criminal justice. NACDL filed amicus

briefs in Gant (with its co-amici the ACLU), and Florida v.

Thomas, 532 U.S. 774 (2001), which raised but did not

ultimately resolve the Belton question that this case again

presents.

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, counsel

for amici states that no counsel for a party authored this brief in whole or

in part and no person, other than amici, its members or its counsel made a

monetary contribution to the preparation or submission of this brief.

l

STATEMENT OF THE CASE

On July 21, 2003, Officer Deion Nichols of the

Norfolk, Virginia police department was in uniform and

driving an unmarked cruiser on Sewells Point Road when he

observed a gold vehicle driving behind him. The officer’s

suspicions were aroused when the vehicle “wouldn’t come all

the way up to” his cruiser. JA 9. Nichols turned onto a side

street so that the gold vehicle would pass him. When he

returned to Sewells Point Road, Nichols saw a gold Lincoln

Town Car and checked the license plate of that vehicle.

Petitioner, Marcus Thornton,.was the driver and sole

occupant of the Lincoln. The check indicated that the license

plate belonged to a 1982 Chevy two-door car rather than a

Lincoln. Nichols intended to stop the Lincoln, but was unable

to do so because the vehicle “pulled into [a] parking lot

before [he] had a chance to do so.” JA16.

According to Nichols, petitioner had “pulled into a

parking lot, [and] exited his vehicle,” JA 16, when the officer

“pulled in behind him [and] exited” his cruiser. Jd. The

officer approached petitioner and asked to see his driver’s

license. After Nichols informed petitioner that the tags on

his vehicle did not match the Lincoln, petitioner “appeared

nervous, right way started rambling” and began “sweating.”

JA 10. For his own safety, Nichols asked petitioner if he had

any weapons or narcotics on his person or in his vehicle,

which petitioner denied. Nichols then requested and received

petitioner’s consent to perform a patdown frisk for weapons.

When the officer felt a “bulge in [petitioner’s] left front

pocket,” he asked petitioner if he had any illegal narcotics on

his person. Petitioner replied that he had “a bag of weed,”

and gave the officer two bags of illegal narcotics. Petitioner

was arrested, handcuffed and placed in Nichols’ cruiser. JA

42. Nichols then searched the Lincoln and discovered a

handgun under the driver’s seat.

A a Erle Pema we

Petitioner was charged with narcotics and weapon

offenses. Relying on New York v. Belton, 453 U.S. 454

(1981), the district court denied petitioner’s motion to

suppress the gun found inside the Lincoln. JA 30-37. After

petitioner was convicted of narcotics and weapons offenses,

he appealed the district court’s refusal to suppress the gun

found inside his car. The Court of Appeals affirmed. JA 61-

75. Specifically, the appellate court rejected the argument

that Belton’s per se rule applies only where “‘the officer

initiates contact with the defendant, either by actually

confronting the defendant or by signaling confrontation

...while the defendant is still in the automobile.’” Jd. at 68

(citation omitted). The court’s conclusion was based on three

primary concerns. First, in the Fourth Circuit’s view, dicta

from Michigan v. Long, 463 U.S. 1032 (1983) suggested

“that an officer may search an automobile incident to arrest,

even if the officer has not initiated contact while the arrestee

was still in the automobile.” JA 71. Second, the traditional

justifications for the search incident to arrest rule, officer

safety and preserving evidence, “continue to be concerns

regardless of whether the arrestee exits the automobile

voluntarily or because of confrontation with an officer.” Jd.

at 72 (citations omitted). Finally, the court believed that

petitioner’s argument would endanger officer safety. The

court imagined that a “contacts” test would force an

undercover officer to reveal his identity if the “officer

encounters the arrestee while conducting undercover

surveillance in an area,” and that “it [might] often be safer for

[police] to wait until the suspect has exited a vehicle before

signaling their presence, thereby depriving the suspect of any

weapon he may have in his vehicle, the protective cover of

the vehicle, and the possibility of using the vehicle itself as

either a weapon or a means of flight.” Jd. Ultimately, the

court ruled that the search was lawful because petitioner was

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

spatially, when Officer Nichols approached him. Jd. at 74.

This Court granted certiorari on the following

question: Is Belton’s bright-line rule confined to situations in

which police initiate contact with the occupant of a vehicle

while the person is in the vehicle?

SUMMARY OF ARGUMENT

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

New York v. Belton, this Court explained that although

searches incident to arrest were an exception to the warrant

requirement, an officer’s authority to conduct a search

incident to arrest “‘must be “strictly tied to and justified by”

the circumstances which rendered its initiation permissible.’”

Chimel, 395 U.S. at 762, quoting Terry v. Ohio, 392 U.S. 1,

19 (1968); Belton, 453 U.S. at 457, quoting Terry. The two

traditional rationales for the search incident to arrest

exception are officer safety and preserving evidence.

Knowles v. lowa, 525 U.S. 113, 116 (1998). Chimel

announced that search incident to arrest permits a search of

the arrestee’s person, as well as “the area ‘within his

immediate control,’” for weapons or evidence. Chimel, 395

U.S. at 763. In Belton, noting that it was simply applying

Chimel’s “immediate control” test to the “particular and

problematic” context of arresting a car occupant, this Court

held that a valid arrest of an automobile occupant permits a

contemporaneous search of the passenger compartment

incident to the arrest. Belton, 453 U.S. at 460, n.3.

The federal and state courts have divided over the

applicability of Belton’s per se rule when police arrest a

person who is a “recent occupant” of a vehicle. Attempting to

resolve this issue, the lower courts have split over the

workability and virtues of an “initiates contact” test. We

propose a per se rule that complies with Chimel’s and

Belton’s command that search incident to arrest authority be

strictly tied to the need for officer safety and preserving

evidence. Specifically, we submit that Belton’s holding

should be confined to cases where police seize a person

Pncgmemnen--- 7

-

ee

ee ee ee

aan

inside a vehicle,” the suspect is arrested, and the vehicle is

searched contemporaneous with the arrest. If a person was

not seized while inside a vehicle, the scope of an officer’s

authority to search is governed by Chimel, not by Belton.

Restricting Belton to cases where a person was seized while

inside a car avoids case-by-case judgments regarding an

arrestee’s temporal or spatial proximity to the vehicle.

Officers and judges need only decide whether a person was

seized while an occupant of a car. When police seize a person

inside a car and the person is subsequently arrested, the per

se rule of Belton applies.

This Court should reverse the judgment below

because it conflicts with Chimel’s and Belton’s mandate that

search incident to arrest power be “strictly tied to and

justified by” the circumstances calling for the search and

because it is not a bright-line rule. The ruling below insisted

that a “close proximity” or “positively linked” standard, see

JA 74, “does not render [the Belton] rule limitless.” Jd.

(footnote omitted). But a finding of “close proximity” or

“positive linkage” “does not establish that the arrestee had an

opportunity to access weapons or to conceal or destroy

contraband, the foundation of the holdings in both Belton and

Chimel.” Minnesota v. Robb, 605 N.W. 2d 96, 101 (Minn.

2000). For example, one court has found that a person was in

2 Police have authority to seize a car and the motorist therein when they

have reasonable suspicion or probable cause that the motorist has

committed a crime or traffic offense. See Delaware v. Prouse, 440 U.S.

646, 653 (1979) (“stopping an automobile and detaining its occupants

constitute a ‘seizure’ within the meaning of the Fourth Amendment”). Cf

Colorado v. Bannister, 449 U.S. 1, 4, n. 3 (1980) (per curiam) (“There

can be no question that the stopping of a vehicle and the detention of its

occupants constitute a ‘seizure’ within the meaning of the Fourth

Amendment.”). A pedestrian is “seized” under the Fourth Amendment

only if a reasonable person would have believed that he was not free to

leave the scene, or would not have felt “free to decline [an officer’s]

requests or otherwise terminate the encounter.” Florida v. Bostick, 501

U.S. 429, 434, 436-37 (1991).

“close proximity” to his vehicle where police observed the

person lawfully park his vehicle, exit the vehicle and walk

toward a house on the other side of the street. See Glasco v.

Virginia, 513 S.E. 2d 137, 142 (Va. 1999) (upholding search

because the driver was “in close proximity to the vehicle”

and thus “a recent occupant of the vehicle within the limits of

the Belton rule”). Although the standard adopted below

allows this search, the traditional rationales that justify the

search incident to arrest exception — officer safety and

preservation of evidence — do not.

More importantly, the judgment below will not

promote clarity. If Belton’s per se rule is triggered whenever

an arrestee is in “close proximity, both temporally and

spatially,” to his vehicle, JA 74, officers and judges will still

be required to weigh temporal and spatial factors to

determine when a vehicle search is permissible. If a “single

familiar standard is essential to guide police officers” in this

context, see Belton, 453 U.S. at 458, then this Court should

reject any proposal that requires officers and judges to

undertake case-by-case assessments of whether a car search

is authorized incident to an arrest. Unlike the ruling below,

our proposal avoids the particularized inquiry necessary

under a “close proximity” standard.

Belton defined what constitutes “immediate control”

under Chimel for the frequently occurring situation where

police seize and arrest automobile occupants. Rather than

forcing officers to make individualized assessments of a car

occupant’s “grabbing distance,” Belton adopted a legal

fiction to paper over the analytical absurdities that emerged

when judges read Chimel’s “immediate control” test to

permit vehicle searches in cases where there was no way an

arrestee — handcuffea and sitting in a police cruiser — would

have access to the contents of his vehicle. While there is

significant tension between Chimel and Belton, a careful

reading of Belton clarifies that Belton’s per se search rule

oe

eg SE

does not apply to every case involving a “recent occupant” of

an automobile. Belton never defined or addressed who is a

“recent occupant” for search incident to arrest purposes.

Rather, the holding in Belton confirms that its bright-line rule

only applies to arrestees who were “occupants” of an

automobile when their vehicle was seized by the police.

While it is true that an arrestee need not be inside his car

when the police conduct the search, and that Belton itself

used both the terms “occupant” and “recent occupant,”

Beiton’s analytical focus was directed at an arrestee who was

an occupant of a vehicle when the police seized it. The single

use of the phrase “recent occupant” in Belton was a clear

reference to the fact that Roger Belton had been seized while

an occupant of an automobile, exited the vehicle, and was

arrested shortly after leaving the vehicle.

ARGUMENT

I. THE BACKGROUND AND DEVELOPMENT OF

BELTON’S PER SE RULE

Chimel sought to clarify the authority of the police to

search incident to arrest.? For half a century prior to Chimel,

> In resolving Fourth Amendment questions, this Court often considers

common law rules to evaluate the reasonableness of a challenged police

intrusion. See, e.g., Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999).

Generally speaking, the common law permitted searches incident to

arrest. However, the legality of a search incident to arrest “has

historically been formulated into two distinct propositions.” United States

v. Robinson, 414 U S. 218, 224 (1973). The common law recognized an

officer’s power to seize weapons or stolen property from an arrestee’s

person. See Thomas Y. Davies, Recovering the Original Fourth

Amendment, 98 MICH. L. REV. 547, 627 (1999). Searching the area

within the arrestee’s control, “while likewise conceded in principle, has

been subject to differing interpretations as to the extent of the area which

may be searched.” Robinson, 414 U.S. at 224. To the extent that the

common law “yields [an] answer,” Houghton, 526 U.S. at 299, on the

scope of an officer’s authority to search the “area” within an arrestee’s

control, those sources do not support a broad interpretation of an officer’s

authority to search incident to arrest.

7

the scope of an officer’s authority to search incident to arrest

was “subject to shifting constitutional standards” and

inconsistent statements from the Court. Chimel, 395 U.S. at

770 (White, J., dissenting). Prior to the Chimel ruling, the

Court upheld extensive searches of private premises under

the search incident to arrest rule. See, e.g., United States v.

Rabinowitz, 339 U.S. 56 (1950), Harris v. United States, 331

U.S. 145 (1947). Under these precedents, a lawful arrest

authorized a search of the entire area “considered to be in the

‘possession’ or under the ‘control’ of the person arrested.”

Chimel, 395 U.S. at 760. Chimel rejected that standard

because it gave police too much power to conduct

discretionary searches that were not justified by the historical

rationales supporting the search incident to arrest exception.

Chimel explained that although the Fourth Amendment’s

Warrant Clause requirements did not control search incident

to arrest power, an officer’s authority in this context would

be judged by the same constitutional norms that governed

other warrantless intrusions. Thus, the scope of an officer’s

At the time of the framing, legal authorities did not recognize an

officer’s power to search an arrestee’s home incident to arrest. See

William J. Cuddihy, The Fourth Amendment: Origins and Original

Meaning, 602-1791, at 1183-84 (1990) (unpublished Ph.D. dissertation,

Claremont Graduate School) (footnote omitted) (“The legal authors of

1761-1776 agreed that houses could be broken into to consummate the

arrest process, but they did not also say that houses could be searched

during that process. The assumption of most legal authorities, in other

words, was that arrests and arrest warrants were not excuses to conduct

general searches.”). Professor Telford Taylor has asserted that “([t)here is

little reason to doubt that search of an arrestee’s person and premises is as

old as the institution of arrest itself,” Telford Taylor, Two STUDIES IN

CONSTITUTIONAL INTERPRETATION 28 (1969) (emphasis added), but the

historical support for Taylor’s conclusion on the scope of an officer’s

power to search an arrestee’s home incident to arrest is extremely weak.

See Davies, supra, at 646, n.276. Professor Davies has noted that “[t]he

reported decisions regarding the allowable scope of search incident to

arrest first became evident in court records during the late nineteenth

century.” /d. at 638, n.250. Thus, the common law, at the time of the

framing, did not recognize broad powers of search incident to arrest.

8

=

authority to search incident to arrest “‘must be “strictly tied

to and justified by” the circumstances. which rendered its

initiation permissible.’” Jd. at 762 (citation omitted). Put

simply, an officer’s search authority must be limited to the

traditional interests that justify the search incident to arrest

exception.

Chimel reaffirmed the two historical purposes served

by a search incident to arrest: to secure any weapon that the

arrestee might use to resist arrest or escape and to preserve

the integrity of any evidence the arrestee might conceal or

destroy. Jd. at 763. Mindful that a warrantless intrusion must

be strictly tied to the purposes of the search, Chimel

announced that search incident to arrest authority permits the

police to search for weapons or evidence on the arrestee’s

person, as well as “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.”

Id.

Chimel’s holding was narrow. Given that the search

of Chimel’s home extended beyond his person and “grabbing

distance,” the evidence discovered by the police was

suppressed. /d. at 768 (“The search here went far beyond the

petitioner’s person and the area from within which he might

have obtained either a weapon or something that could have

been used as evidence against him.”). Thus, there was no

need for the Chimel Court to address the question of “where

the police are allowed to search” under the “grabbing

distance” prong. Myron Moskovitz, A Rule in Search of a

Reason: An Empirical Reexamination of Chimel and Belton,

2002 Wis. L. REV. 657, 659-60.

After the Chimel decision, some lower courts were

“hesitant to apply the Chimel rationale to the search of

vehicles incident to arrest.” 2 Wayne R. LaFave, SEARCH

AND SEIZURE, § 7.1 at 499 (1978). When occupants of

automobiles were placed under arrest, some lower courts

eT

applied Chimel’s “immediate control” rule in a manner that

conflicted with the purposes and rationale of Chimel. As

Professor LaFave explained in the first edition of his treatise

on the Fourth Amendment:

[Cjourts sometimes interpreted the Chimel

[“immediate control” or “grabbing distance”]

concept as if it were synonymous with possession;

if the’ defendant had been driving the car

immediately before his arrest, then the car was

considered to be in his control and thus subject to

a warrantless search. This approach quite clearly

cannot be squared with Chimel, where the Court

explicitly rejected the notion that it was

reasonable to search a place merely because it was

in the possession of the arrestee. Equally

inconsistent with Chimel is the proposition,

accepted by a few courts, that the part of the car’s

interior which the defendant could have reached at

the time the vehicle was stopped by the police

somehow remains a fixed area of “immediate

control” even after the defendant has alighted

from the automobile. Under Chimel, the question

is not whether the defendant could have reached a

certain area on a prior occasion; rather, it is

whether the defendant can presently (i.e., at the

moment of search) reach that area.

Id. at § 7.1 at 500-01 (footnotes and citation omitted).

Belton built directly on Chimel’s holding. Belton

addressed the following narrow issue: “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?” 453 U.S. at 455

(emphases added). In answering this question, the Court

reaffirmed what Chimel had emphasized: a search incident to

10

arrest “‘must be strictly tied to and justified by the

circumstances which rendered its initiation permissible.” Jd.

at 457 (citation and internal quotation marks omitted). The

Court also sought a “‘single familiar standard’” to guide

police officers in determining “the proper scope of a search

of the interior of an automobile incident to a lawful custodial

arrest of its occupants.” Jd. at 458-59. 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 compartment of

that automobile.” Jd. at 460 (footnotes omitted). The Court

explained that its ruling “does 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 search incident to lawful custodial arrests.” Jd. at

460, n.3.

While the Belton Court merely sought to resolve how

Chimel’s “immediate control” test should be applied to

occupants of automobiles, the means employed by the Court

undermined Chimel’s intent to strictly confine search

incident to arrest authority to “‘the exigencies of the situation

[that] made that course imperative.’” Chimel, 395 U.S. at

761, quoting McDonald v. United States, 335 U.S. 451, 456

(1948). A per se rule that authorized a search of a vehicle’s

passenger compartment was not compatible with the

“immediate control” or “grabbing distance” test. When

Belton was decided, it was standard police practice to have

an arrestee secured and removed from a vehicle prior to the

search. Thus, when an officer searches a car, the passenger

compartment of the vehicle is not within the arrestee’s

“immediate control” or grabbing distance. In fact, most of the

pre-Belton lower court rulings that applied Chimel to vehicles

involved “situations in which the arrestee was outside of the

vehicle at the time of the search.” 2 LAFAVE, supra at § 7.1

at 501. Although judges upheld vehicle searches incident to

1]

an arrest, many of these rulings were based upon “an

assumption that the arrestee was ‘possessed of the skill of

Houdini and the strength of Hercules’ and thus could readily

enter the car notwithstanding his distance from it and the

manner of his custody.” Jd.

Belton resolved the incompatibility between the

“immediate control” test and a per se rule by adopting a legal

fiction: “articles inside the relatively narrow compass of the

passenger compartment of an automobile are in fact

generally, even if not inevitably, within ‘the area into which

an arrestee might reach in order to grab a weapon or

evidentiary ite[m].’” Belton, 453 U.S. at 460, quoting

Chimel, 395 U.S. at 763. Although Belton denied that its

holding was a retreat from Chimel, in a case like petitioner’s,

application of Belton’s legal fiction exposes a conflict

between Belton’s determination to provide officers with a

“workable rule,” id. at 460 and Chimel’s goal to strictly

confine an officer’s search incident to arrest authority.*

A. The Factors Compelling Belton’s Bright-Line

Rule

When police arrest a person inside a home, or a

pedestrian on the street, Chimel permits a search of the

arrestee’s person, as well as a search of the area within the

* The first substantive question asked during the oral argument in Florida

v. Thomas, highlights the tension between Belton’s legal fiction and

Chimel’s intent to strictly confine searches incident to arrest to those

contexts where a weapon or evidence might be accessible to an arrestee:

“QUESTION: And do you say that Belton allows the person outside the

car to be taken away, secured, removed, and then the officers can go back ~

and search the car?” Tr. Oral Arg. Florida v. Thomas, No. 00-391 at 4-5;

see also id. at 6 (Justice Souter asking: “Well, [the search] may have been

part of one ongoing transaction, but it - - that does not, I think, affect the

fact that the moment of the search seems to have been totally untethered

from the justifications for the Belton rule because, as | understand it, at

the time the search was made, the defendant was in the house. The

defendant couldn’t reach into the car for weapons or for evidence.”).

12

arrestee’s “immediate control.” When such an arrest occurs,

deciding what constitutes an arrestee’s “immediate control”

depends on the particular facts of each case. See 3 Wayne R.

LaFave, SEARCH AND SEIZURE, § 6.3 (c) at 305-12 (3d ed.

1996). In Belton, this Court recognized that determining the

proper scope of a car search incident to arrest involves a

“problematic” application of Chimel’s “immediate control”

rule. Belton, 453 U.S. at 460, n. 3. Applying Chimel’s

“immediate control” test in this context is problematic for

both practical and doctrinal reasons.

As a practical matter, an officer cannot remove a

motorist from a car, effectuate an arrest, secure the arrestee

and search his “grabbing distance” in a single stroke. This

dilemma is particularly vexing when a single officer

encounters a multi-occupant vehicle, as was the case in

Belton. When conducting the arrest of a motorist or

passenger inside a car, an officer first secures an arrestee to

protect his or her own safety. Then an officer exercises his

authority to search the area within the arrestee’s immediate

control. In all but the most extraordinary case, when the

officer begins a search, the arrestee is no longer inside the

vehicle, see United States v. Karlin, 852 F.2d 968, 971 (7th

Cir.1988), cert. denied, 489 U.S. 1021 (1989), just as a

pedestrian will be secured before an officer searches a

container or object within the grabbing distance of the

pedestrian. See, e.g., Draper v. United States, 358 U.S. 307,

314 (1959) (search of a “zipper bag” that arrestee was

carrying was valid search incident to arrest).

Chimel’s “immediate control” rule thus created

doctrinal problems when applied to occupants of

automobiles. “Sometimes it was assumed that the Chimel

holding did not carry over to the vehicle cases.” 2 LAFAVE, at

§ 7.1 at 499. Even when courts applied Chimel’s holding to

cars, the “immediate control” rule offered hazy answers for

officers and the judiciary. The “immediate control” test

produced inconsistent results when applied on a case-by-case

13

basis to the arrest of a car occupant, see Belton, 453 U.S. at

460-61, and lower court rulings often applied Chimel’s

“immediate control” rule in a manner that conflicted with the

intent of that decision. 2 LAFAVE, at § 7.1 at 500-01. Indeed,

Belton acknowledged that “no straightforward rule ha[d]

emerged from the litigated cases” regarding the extent of

police authority to search a car incident to the arrest of an

occupant. 453 U.S. at 459.

Accordingly, Belton’s legal fiction was designed to

make it easier for police and judges to apply Chimel’s

“immediate control” test to a person seized while occupying

a Car.

[Belton] adopted a factual presumption that, if the

arrestee is an occupant of the vehicle, the arrestee

can reach in the vehicle and get a weapon or

destroy evidence. Following Belton, a showing of

the actual fact of occupancy would automatically

provide the presumed fact of access to the

passenger compartment which is required by

Chimel as a prerequisite for a warrantless search

of a vehicle incident to arrest.

Glasco v. Virginia, 513 $.E.2d 137, 144 (Va. 1999) (Lacy, J.,

concurring). Instead of police officers conducting

individualized on-the-spot assessments of an automobile

occupant’s “grabbing distance,” Belton established a bright

line to resolve the ambiguities that arose when applying the

“immediate control” test to an arrestee seized while inside a

vehicle. For someone seized while an occupant of a car,

Chimel’s “immediate control” test would be triggered at the

moment the police seizure occurred, and would extend to the

entire passenger compartment of the vehicle.

14

B. The Factors That Compelled Belton’s Holding

Are Absent When An Officer Seizes A Person

Outside A Vehicle

The practical and doctrinal concerns that compelled

Belton’s holding are absent when a suspect is seized outside a

vehicle. When an officer arrests a pedestrian, he does not

confront the practical quandary that arises when attempting

to arrest a person seated inside a car: simultaneously

removing a suspect from a vehicle, searching the arrestee’s

person for weapons or evidence, and searching his “grabbing

distance” all in a single stroke. Consequently, the concerns

that prompted Belton to adopt a legal fiction in order to give

officers a per se rule are extraneous to an arrest and search

not involving an automobile occupant. Instead, Chimel

controls the scope of an officer’s authority to search incident

to arrest.

Similarly, when an officer seizes a person outside a

vehicle before executing an arrest, there is no longer a need

for a brighf-line rule that defines the arrestee’s “immediate

control” inside the vehicle. “The objective and the virtue of

the Belton decision was to obviate uncertainty in applying the

Chimel ‘lunge area’ rule to automobile searches. Belton

simplified the task of [police] and the courts by declaring that

the entire passenger compartment would be deemed within

the arrestee’s reach, and thus subject to search, when a

vehicle occupant is arrested.” Jdaho v. Foster, 905 P.2d

1032, 1038 (Idaho Ct. App.1995). When the seizure occurs

outside a car, however, the ambiguity regarding an arrestee’s

“grabbing distance” inside the car is gone. As the District of

Columbia Circuit has recognized, “[n]o such ambiguity

exists...where the police come upon the arrestees outside of

an automobile. Under such circumstances, the rationale for

Belton’s bright-line rule is absent; instead, the normal

framework of Chimel applies.” United Stated v. Fafowora,

865 F.2d 360, 362 (D.C. Cir.), cert. denied, 493 U.S. 829

(1989). See also People v. Stehman, 783 N.E. 2d 1, 7 (Ill.

15

2002) (“where police first confront the arrestee outside his

vehicle, the ambiguity which Belton seeks to avoid no longer

exists, and the rationale for its bright-line rule is absent”).

Indeed, a contrary rule is inconsistent with the holding of

Vale v. Louisiana, 399 U.S. 30 (1970). Vale explained that

“li]f a search of a house is to be upheld as incident to an

arrest, that arrest must take place inside the house, not

somewhere outside — whether two blocks away, twenty feet

away, or on the sidewalk near the front steps.” Jd. at 33-34

(citations omitted). If police cannot justify a house search as

incident to an arrest of a “recent occupant” of that house,

they should not be able to justify a car search simply because

the arrestee is a “recent occupant” of that car, or in “close

proximity” to the vehicle.

Belton’s per se rule is not triggered merely because

the arrestee is a “recent occupant” of a vehicle. A “recent

occupant” addendum to Belton would permit an automatic

and suspicionless search of an arrestee’s car and the private

possessions therein without the concerns that compelled

Belton’s holding.” More importantly, if Belton is extended to

a case where police seize an individual outside of a car, it is

severed from its foundation in Chimel. As noted, both Chimel

and Belton recognized that the scope of a search incident to

arrest “‘must be 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. In

practice, this means that searches incident to arrest must be

* In previous amicus briefs addressing the issue sub judice, the United

States has asserted that “the Belton rule is also supported by the

diminished expectation of privacy that an individual has in the

circumstances giving rise to its application.” U.S. Br. 10, n. 3, Arizona v.

- Gant, 72 U.S.L.W. 3280 (Oct. 20, 2003), No. 02-1019; U.S. Br.11, n. 4,

Florida v. Thomas, 532 U.S. 774 (2001) No. 00-391 (same). Belton,

however, explained that “the justification for the search [of a container

found inside a car] is not that the arrestee has no privacy interest in the

container, but that the lawful custodial arrest justifies the infringement of

any privacy interest the arrestee may have.” Belton, 453 U.S. at 461.

16

pete

a

confined to “the arrestee’s person and the area ‘within his

immediate control.’” Chimel, 395 U.S. at 763. If police are

automatically permitted to search a recent occupant’s car

even though the vehicle is not ‘within his immediate

control,’” they are not obeying the rule announced in Chimel.

“If there is no connection shown between a person’s

occupancy of a vehicle and his arrest, then extending the

scope of the search incident to arrest to the vehicle is neither

‘tied to’ nor ‘justified by’ circumstances of the arrest.”

Glasco v. Virginia, 513 S.E.2d at 144 (Lacy, J., concurring).

A “recent occupant” extension of Belton conflicts with

Chimel’s rationale and purpose. Indeed, Chime! warned that a

search incident to arrest provides no 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.” 395 U.S. at 763. Similarly, there is no

comparable justification for automatically searching the

vehicle of an arrestee who has been seized outside of his car.

As the Minnesota Supreme Court aptly put it, “Belton does

not permit searches of arrestees’ vehicles; it permits searches

of occupants’ vehicles incident to lawful arrest.” Minnesota

v. Robb, 605 N.W. 2d 96, 101 (Minn. 2000).

Il. BELTON’S HOLDING DOES NOT EXTEND TO

ANY “RECENT OCCUPANT” OF AN ~

AUTOMOBILE

In previous cases, the United States has argued that

Belton makes no distinction between “occupants” and “recent

occupants” of automobiles. U.S. Br at 11, Arizona v. Gant

(“Belton applies as long as the arrestee is a ‘recent occupant’

of the vehicle”); U.S. Br at 12, Florida v. Thomas (same).

The notion that Belton’s per se rule applies to any recent

occupant of a vehicle misreads Justice Stewart’s opinion.

Moreover, extending Belton to “recent occupants,” or to

persons in “close proximity” to a car, will create greater

17

uncertainty regarding an officer’s authority to search incident

to arrest.

A. Belton’s Per Se Rule Applies Only When Police

Seize A Person In A Car And The Person Is

Subsequently Arrested

Belton’s holding does not extend to any “recent

occupant” of a car. As the nation’s most prominent Fourth

Amendment scholar has explained, “Belton applies only in

the case of ‘a lawful custodial arrest of the occupant’ of the

vehicle.” 3 LAFAVE, supra § 7.1 (a) at 436 (footnotes

omitted).

A judicious reading of Belton confirms that the

Court’s ruling only applies to an arrestee who was seized

while an occupant of a car. First, the facts show that Roger

Belton and three others were occupants of a car when their

vehicle was seized for speeding. Although Belton had exited

the vehicle before being placed under arrest, thus making him

a “recent occupant,” his status as a “recent occupant” was the

direct result of the officer’s authority to seize him while he

was inside the car and to arrest him after detecting evidence

of contraband within plain-view of the vehicle.

Next, when describing the precise issue before it,

Belton indicates that the Court was focusing on arrestees who

were occupants of automobiles — not “recent occupants” or

persons in “close proximity” to cars. In the opening sentences

of his opinion, Justice Stewart wrote: “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? That is the question at

issue in the present case.” 453 U.S. at 455 (emphases

added).

Significantly, Belton’s holding is limited to situations

where an arrestee was an “occupant” of a vehicle. The Court

18

a: ~cesengeneueensseimamnecesesacessst te we

stated: “[W]e hold 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. at 460

(footnotes omitted) (emphasis added). Finally, when applying

this holding to the facts, Justice Stewart explained that the

defendant’s “jacket was located inside the passenger

compartment of the car in which [Belton] had been a

passenger just before he was arrested,” thus making the

jacket “‘within the arrestee’s immediate control’” for

purposes of Chimel. Id. at 462 (footnote omitted).

In sum, although it is true that an arrestee need not be

inside a vehicle at the moment the officer conducts the

search, and that Belton itself used both the terms “occupant”

and “recent occupant,” see id. at 460, Belton’s analytical

focus was directed toward an arrestee who was an occupant

of a car when seized by the police. The lone use of the term

“recent occupant” in Belton was an obvious reference to an

arrestee who had been seized by the police while he was an

occupant of an automobile and was later arrested after exiting

the vehicle. Belton never defined or addressed who is a

“recent occupant” for search incident to arrest purposes. See

Texas v. Kelly, 963 S.W.2d 866, 869 (Tex. App — San

Antonio 1998) (“the ‘bright-line’ test [of Belton] does not

address who is a ‘recent occupant’ for purposes of being

subject to a Belton-type vehicular search rather than a

Chimel-type search.”).

B. The Terms “Recent Occupant” And “Close

Proximity” Are Inherently Ambiguous

Extending Belton to cover persons who have exited

their vehicles prior to being seized by the police will generate

greater uncertainty and ambiguity regarding an officer’s

authority to search a vehicle incident to arrest. For example,

several lower courts have noted that if Belton is extended to

permit a search whenever police arrest a “recent occupant”

19

who was not seized while inside a car, the clarity of Belton

will be diminished. As one court explained, if Belton “is

stretched to encompass the search of a vehicle that was

voluntarily vacated by a person before confrontation with the

police began, the ‘bright-line’ rule becomes hazy and

uncertain. [Police] would be left to wonder what combination

of temporal and spatial proximity the arrestee must have to

the vehicle at the time contact was initiated to allow the

search without a warrant.” Michigan v. Fernengel, 549

N.W.2d 362, 363 (Mich. App. 1996). If Belton is applied to

every “recent occupant,” police will have to make case-by-

case determinations regarding whether an arrestee was a

“recent” occupant of a vehicle and the arrestee’s proximity to

the vehicle at the time of arrest. See Texas v. Kelly, 963

S.W.2d at 869. When applied to a motorist who was not

seized while inside a vehicle, the term “recent occupant” has

various connotations, and invites subjective judgments

regarding a person’s connection to a vehicle.

Even courts that have adopted a “recent occupant”

rule recognize that case-by-case assessments are still

necessary to determine an officer’s authority to search

incident to arrest. For example, the Colorado Supreme Court

extended Belton to cover a situation “where the occupant of a

vehicle anticipates police contact and exits the vehicle

immediately before that contact occurs.” Colorado v.

Savedra, 907 P.2d 596, 599 (1995) (en banc). By extending

Belton in this context, the court acknowledged that the “issue

of temporal proximity between the police encounter and the

defendant’s presence in the vehicle is the main factor courts

consider in determining whether a person is a recent

occupant of a vehicle for purposes of Belton.” Id. In practice,

this means that the officer in the field will first have to decide

whether the arrestee has been outside of a car for a

significant period of time, subject to the second-guessing of

judges.

Other line-drawing problems have emerged when

courts extend Belton to an arrestee who was not physically

occupying a car when seized by the police. In United States

v. Sholola, 124 F.3d 803 (7th Cir. 1997), the Seventh Circuit

concluded that the defendant was “‘positively linked’” to a

vehicle when, during a conversation with an officer he had

“pointed to a vehicle, opened the front driver’s side door with

a set of car keys in his hand, and stated, ‘See, it’s my car.’”

Id. at 817. Because the defendant was “positively linked”

with an automobile, the Seventh Circuit ruled that Belton

permitted a search of the car incident to arrest, even though

the arrestee was neither an occupant nor a “recent occupant”

of the vehicle. Judge Wood concurred in the judgment in

Sholola, but warned that judges should be mindful “not to

extend [Belton] too far beyond its facts.” Jd. at 823. Judge

Wood feared that the majority’s use of the phrase “positively

linked” might “be misunderstood in a future case.” Jd.

Sholola’s interpretation of Belton illustrates the

dangers of extending Belton’s holding to arrestees who have

been seized outside of their vehicles. Deciding whether a

person is “positively linked” or in “close proximity” to a car

when he or she is seized outside the car requires considering

the particular facts of each case. See Arizona v. Dean, 76

P.3d 429, 436 (Ariz. 2003) (recognizing that under a “close

proximity” test, “the appropriate inquiry focuses on the

critical factors of when and where the custodial arrest took

place”). Similarly, determining whether a person is a “recent

occupant” requires a particularized assessment of the facts of

each case. Moreover, extending Belton to cover “recent

occupants” eviscerates Chimel. Judge Wood’s criticisms of

the “positively linked” test are equally pertinent to a “recent

occupant” standard:

[Some] “[recent occupants]” would plainly fall

outside the scope of Belton. For example, the

police could observe a suspect parking a car in an

off-street legal parking lot, and then walking two

21

blocks away from it, keeping both vehicle and

suspect under constant surveillance. If they then

arrested the suspect, in my view they would need

something other than Belton to justify a search of

the car, even though [the defendant] might be said

to [be a “recent occupant” of the car].

Sholola, 124 F. 3d at 823 (Wood J., concurring).

The United States, in previous cases, has recognized

that a “recent occupant” test is not a bright-line rule. See U.S.

Br at 29, Arizona v. Gant (the term “recent occupant” “may

require careful line-drawing in outlying cases”). Rather than

proposing a solution, in its previous amicus briefs, the United

States has essentially urged the Court to ignore the ambiguity

associated with the term “recent occupant.” For example, in

Gant, the Solicitor General asserted that there was no reason

not to apply Belton “to the more typical case,” U.S. Br at 19,

where police observe a suspect “exit his car and contacted

him seconds later in the vicinity of the car he had just

occupied.” Jd. at 18; see also U.S. Br at 21, Florida v.

Thomas (“There is no doubt that an individual is the ‘recent

occupant’ of a vehicle when, as here, the officer sees the

individual get out of the car and contacts him moments later

beside the car.”). Finally, the Solicitor General has stated that

“(ijn determining whether Belton authorizes a vehicle search

in outlying cases, courts should assess the reasonableness of

applying the Belton rule in light of the basic concerns

underlying the search-incident-to-arrest doctrine and the facts

and circumstances of the particular arrest and search at

issue.” U.S. Br at 28, Arizona v. Gant.

_ In Gant and Thomas, the Solicitor General avoided

the difficult question of defining when an arrestee qualifies

as a “recent occupant” by arguing that the facts in those cases

showed that the defendants were clearly “recent occupants”

and that those fact patterns represented “the more typical

case.” U.S. Br at 19, Arizona v. Gant. We anticipate that the

22

Solicitor General will make a similar argument here. The

Solicitor General’s past claims, however, that certain fact

patterns symbolize the typical scenario for Belton searches

has not been substantiated by the records in those cases and

is contradicted by some of the cases cited by the United

States. See U.S. Br at 19, n.5, Gant.

Furthermore, what the Solicitor General characterizes

as “outlying cases,” id. at 28, have generated a substantial

amount of litigation in the lower courts regarding the proper

scope of Belton’s automatic search rule. See 3 LAFAVE,

supra, § 7.1(a) at 436-37, n. 25 & 26 (3d ed. 1996 & Supp.

2003) (citing cases illustrating split among lower courts on

Belton’s applicability to arrestees who were recent occupants

of vehicles); Arizona v. Dean, 76 P.3d at 434 (noting that

“state and federal courts have struggled to find a workable

definition of the term [‘recent occupant’]”); United States v.

Green, 324 F. 3d 375, 378-79 (Sth Cir. 2003) (same). If the

Solicitor General’s approach is followed, the workload of

this Court and the state and federal courts will not be eased.

Judges will still have to decide the applicability of Belton to

cases where an arrestee was no longer near his vehicle. The

“initiates contact” test developed because many courts

recognized that Belton’s holding should not be extended to

cases where police seize a person away from of his vehicle.

See People v. Stehman, 783 N.E. 2d at 8 (“where searches

occur beyond the scope of Belton’s bright-line intent, the

factors in Chimel of officer safety and evidence preservation

must be present in order for a search incident to arrest to be

lawful’) (citations omitted). The Solicitor General’s

proposed solution for these cases is a vague, standardless

test. If bright lines are essential to guide officers and judges,

then Belton’s holding shoulc be left undisturbed and this

Court should reject any proposals that require police officers

to assess the totality of the circumstances — which is what the

Solicitor General proposes — when determining whether to

proceed with a car search incident to arrest.

23

The court below adopted a “close proximity” rule

which also requires officers and judges to weigh temporal

and spatial factors to determine when a vehicle search is

permissible incident to a lawful arrest. See also Arizona v.

Dean, 76 P. 3d at 437 (acknowledging that “concepts such as

‘close proximity’ and ‘immediately after’ are of course

subject to factual analysis”). The analytical flaw with a

“close proximity,” “positively linked” or “immediate

vicinity” rule is that it allows officers and judges to interpret

Chimel’s “immediate control” test as if it were identical to a

test of “possession.” This type of reasoning recalls an era of

this Court’s search incident to arrest jurisprudence that

permitted police to search the area considered to be in the

“possession” or under the “control” of the arrestee. For

example, in Harris v. United States, 331 U.S. 145 (1947), a

five-hour search of a four-room apartment was upheld as a

valid search incident to arrest because the arrestee “was in

exclusive possession” of the premises. Jd. at 152. See also

United States v. Rabinowitz, 339 U.S. 56, 63 (1950) (relying

on Harris to uphold an hour and a half search of defendant’s

office as a valid search incident to arrest). The logic that

supported the results in Harris and Rabinowitz was firmly

rejected in Chimel. Even before Chimel, the Court had

discredited a “possession” or “close proximity” test. The

arrestee in Vale was also in “close proximity” to his home;

indeed, Vale was not only a “recent occupant” of his home,

he was standing on the “front steps of the house” when

arrested. Vale, 399 U.S. at 32. But that fact provided no

justification for searching his home. If Fourth Amendment

principles “preclude [] indulgence in the fiction that the

recesses of a man’s house are like the pockets of the clothes

he wears at the time of his arrest,” Harris, 331 U.S. at 164

(Frankfurter, J., dissenting), then those same principles

preclude treating a man’s vehicle as the equivalent of a

shopping cart pushed by the arrestee at the time of this arrest.

24

C. A “Recent Occupant” Rule Is Not Required By

This Court’s Precedents

Michigan v. Long, 463 U.S. 1032 (1983) has not,

directly or indirectly, decided the issue preserved in this case.

The dicta in Long provides no basis for extending Belton to

“recent occupants.” In Long, police observed Long’s car

traveling erratically and speeding. After watching the car

swerve into a ditch, the police stopped to investigate. “As

[the officers] left their vehicle and walked forward,

[Long]...left from the driver’s seat side” of his vehicle and

met the officers at the rear of the car. People v. Long, 288

N.W. 2d 629, 630 (Mich. App. 1980). Suspecting that Long

was intoxicated, the officers asked to see his license. As

Long walked toward the open door of his car, the officers

observed a large hunting knife on the floor. After frisking

Long, the police conducted a search of the passenger

compartment for other weapons. Inside the car they found

marijuana. Long held that a protective search of a passenger

compartment is valid when reasonable suspicion exists that a

car contains weapons potentially dangerous to police.

In dicta, this Court stated “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.” Long, 463 U.S. at 1035, n.1; see also id. at

1049, n.14 (“[T]he ‘bright line’ that we drew in Belton

clearly authorizes... a search whenever officers effect a

custodial arrest.”). Despite this dicta, the facts in Long are

consistent with our analysis of Belton’s per se rule being

limited to cases where police seize a person while he or she is

an occupant of a car. Long was inside his car when the

deputies stopped to investigate. See 288 N.W. 2d at 630.

From that moment forward, Long was seized for Fourth

Amendment purposes. See Long, 463 U.S. at 1051 (noting

that during any investigative stop, police may detain person

against his will). His ability to exit his vehicle before being

ordered to do so by the police did not convert the

25

confrontation into a non-seizure nor negate the applicability

of Belton’s per se rule. See infra Part III.

This Court has never held that application of Belton’s

per se rule should have no factual predicate other than the

lawful arrest of a recent occupant, as suggested by the court

below, JA 71, or implied in Long’s dicta. Such a holding

would constitute a radical departure from the standards

announced in Chimel and Belton. Although in recent years

this Court has greatly enlarged the automobile exception,

searches under that doctrine are never “automatic.” Such

searches always require probable cause that contraband is

inside a car. See Wyoming v. Houghton, 526 U.S. 295 (1999).

Similarly, searches under Long require reasonable suspicion

that a car’s passenger compartment poses a threat to an

officer’s safety; Long does not authorize an “automatic”

search. See Long, 463 U.S. at 1049, n.14 (“We stress that our

decision does not mean that the poli » may conduct

automobile searches whenever they conduc. an investigative

stop.”). A “recent occupant” or “close proximity” test,

however, allows an automatic and suspicionless search of an

automobile. This Court has never announced such a holding.

Since Chimel, this Court’s search incident to arrest

precedents have embraced Justice Frankfurter’s view that

“{a]uthority to arrest does not dispense with the requirement

of authority to search.” Harris, 331 U.S. at 165 (Frankfurter,

J., dissenting).

Ill. BELTON’S PER SE RULE SHOULD BE

RESTRICTED TO CASES WHERE A PERSON

WAS SEIZED WHILE AN OCCUPANT OF A

CAR

Although the “contacts” test seeks to promote the

aims of Chimel and Belton, a more workable and efficient

rule is available to resolve the tension between Belton and

Chimel. The per se rule of Belton should be limited to cases

where a person is seized while inside a car. If police arrest a

26

ae ee ee re eed

ate Ay Tina at Pam

OM at

a ee

recent occupant of a vehicle who was not seized while inside

a vehicle, the scope of an officer’s authority to search

incident to arrest is governed by Chimel, not Belton. Our per

se rule parallels Belton’s holding, is easily applied by police

officers, and is consistent with analogous rules that govern an

officer’s authority to investigate and detain occupants of

automobiles. Most importantly, our proposal satisfies

Chimel’s mandate that an officer’s search power be strictly

tied to the traditional rationales for the search incident to

arrest exception.

First, the facts and holding of Belton itself establish a

per se rule only when a person is seized while an occupant of

a car. Although Belton was ordered out of the car, thus

making him a “recent occupant” of the vehicle, his status as a

recent occupant was the direct consequence of the officer’s

lawful decision to seize Belton while he was an occupant of a

vehicle. Under these circumstances, Belton held that “when a

policeman had 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.” 453 U.S. at 460 (footnotes omitted) (emphasis

added).

Second, confining Belton’s bright line to cases where

a person was seized while inside a car produces a rule that is

easily understood and followed by police officers. Well-

trained officers know when they have the authority to seize

an occupant of a vehicle. See Delaware v. Prouse, 440 U.S.

648 (1979) (random traffic stops are unconstitutional; police

° The ruling below seems based on the premise that if Belton’s per se rule

does not apply to “recent occupants,” an officer lacks any authority to

search incident to arrest. See JA 72-73. That analysis is wrong. The fact

that Belton’s per se rule may not apply in a particular case does not

preclude a search incident to arrest. Chimel provides the default rule in

cases where Belton does not apply. And if Chimel does not authorize the

challenged search, then, ipso jure, the search is unnecessary to promote

officer safety or the preservation of evidence.

27

may seize a vehicle where probable cause or reasonable

suspicion exists that a motorist has committed a traffic

violation or other crime). Thus, whenever police detain a

vehicle to investigate a traffic violation, as they did in Belton

or Long, they have seized the vehicle and its occupants. If

during the course of that seizure, probable cause to arrest

develops, Belton’s per se rule applies regardless of whether

the occupants of the vehicle remain seated in the car, have

been removed from the car, or have exited the vehicle

voluntarily.

Although petitioner had not been signaled for a traffic

stop, JA 16, the court below, like a few other lower courts,

thought Belton was applicable to remove the concern that

officers might have to “race” to a suspect’s vehicle to prevent

the suspect from exiting from his or her car. JA 73; see also,

Nebraska vy. Gonzalez, 487 N.W.2d 567, 572 (Neb.

App.1992) (“In order to conduct a valid search, police

officers should not have to race from their vehicles to the

arrestee’s vehicle to prevent the arrestee from getting out of

his or her vehicle.”); cf Colorado v. Savedra, 907 P.2d at

600 (“if Belton were read to preclude a search... where police

contact occurred just after the suspect exited the vehicle, then

knowledgeable suspects could effectively conceal evidence

by stepping outside of their vehicle whenever they saw a

police officer approaching”). Confining Belton, however, to

cases where police seize a car occupant eliminates the

concern that officers will have to “race” from their patrol cars

to prevent an occupant from exiting his car. If police pull

over or detain a vehicle while the suspect is inside, as they

did in Gonzalez, 487 N.W.2d at 568, a suspect cannot

“Belton-proof” the car by exiting the vehicle before the

officer can vacate his cruiser. A “seizure” occurs “the

moment [a motorist] was pulled over by” an officer. Ohio v.

Retherford, 639 N.E. 2d 498, 506 (Ohio App. 1994); cf.

California v. Hodari D., 499 U.S. 621, 626 (1991)

(explaining an “arrest requires either physical force... or,

28

Ae Ce Re RE et oh ig BO eo ay senaerre

where that is absent, submission to the assertion of

authority”). Thus, even a suspect who voluntarily exits his

vehicle during a traffic stop is still considered “seized” for

Fourth Amendment purposes until the traffic stop is

completed. See New York v. Class, 475 U.S. 108, 116 (1986)

(noting that officers could effect the seizure of a motorist

who voluntarily exited his car until “they completed their

investigation”). Further, under our proposal, an officer will

not have to inquire why a motorist exited his vehicle. Where

a person is lawfully seized inside his vehicle and arrested,

Belton applies regardless of why an arrestee exits his or her

Car.

Third, limiting Belton to cases where a person was

seized while an occupant of a car produces a rule that is

consistent with analogous Fourth Amendment rules

governing an officer’s power to investigate and detain

occupants of automobiles. For example, Pennsylvania v.

Mimms, 434 U.S. 106 (1977) (per curiam), held that during a

traffic stop police may routinely order a driver out of his

vehicle. See also Maryland v. Wilson, 519 U.S. 408, 415

(1997) (extending Mimms’ holding to passengers). In

reaching this conclusion, however, Mimms emphasized that it

was not holding “that whenever an officer has an occasion to

speak with the driver of a vehicle, he may also order the

driver out of the car.” Mimms, 434 U.S. at 111, n.6 (internal

quotation marks omitted). Mimms and Wilson restrict forcible

exit orders of car occupants to lawful seizures. A contrary

rule would subject anyone in a car to an arbitrary intrusion.

Likewise, if police have no basis for seizing an automobile

~ occupant, that person’s decision to exit his vehicle should not

occasion an automatic search of his vehicle merely because

the person is later arrested outside the vehicle. Compare,

Vale, supra (a search of a home cannot be upheld as a valid

search incident to arrest even if the arrest occurs on the front

steps of the house).

29

The concern ~ about undercover _ surveillance

operations, expressed below, JA 72-73, provides no

justification for extending Belton’s per se rule to scenarios

that do not implicate the traditional rationales for the search

incident to arrest exception. To be sure, an undercover officer

might hesitate to confront a suspect while engaged in

surveillance procedures. But an undercover officer’s interest

in maintaining his “cover” does not justify an automatic and

suspicionless search of a vehicle if a suspect is later arrested

outside his vehicle. For Fourth Amendment purposes, the

undercover officer’s situation is indistinguishable from the

patrol officer who has a hunch, but not probable cause, that a

suspect’s vehicle might contain contraband or a weapon. A

desire to search has never been the touchstone for

constitutional reasonableness. As noted by one member of

the Court the during oral argument in Florida v. Thomas, an

officer’s desire to search a vehicle “doesn’t equate with the

necessity to do so to protect himself or to protect any

evidence that someone might grab during an arrest process

that occurs as the person has distanced himself from the car.”

Tr. Oral Arg. Florida v. Thomas, No.00-391 at 33.

Finally, our proposal avoids the line-drawing

problems inherent in the ruling below that has officers

deciding whether an arrestee was in “close proximity, both

temporally and spatially,” JA 74, to a vehicle for search

incident to arrest purposes. Officers and judges should only

decide whether a person was seized while an occupant of a

car. When police seize a person in a car, and the person is

subsequently arrested, Belton’s per se search rule applies.

Under our proposal, the search of petitioner’s vehicle

was unreasonable because petitioner was not seized while an

occupant of that vehicle.

CONCLUSION

For the reasons stated above, the judgment of the

Court of Appeals for the Fourth Circuit should be reversed.

30

a eee

tt A ah a # a

Respectfully submitted,

Tracey Maclin

Counsel of Record

Boston University School of Law

765 Commonwealth Avenue

Boston, Massachusetts 022° 5

(617) 353-4688

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Lisa Kemler

Zwerling & Kemler, P.C.

108 North Alfred Street

Alexandria, Virginia 22314

(703) 684-8000

Dated: December 18, 2003

31