# Amicus Curiae Brief — Thornton v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0007%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 615

## Text

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

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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

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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
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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

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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

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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

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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.

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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,

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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).

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0007%3A09. Public record. Not legal advice.