Amicus Curiae Brief — Arizona v. Gant

MOTION FILED f

JUL 35 ~ 2008 )

No. 02-1019

Jn the Supreme Court of the Gnited States

STATE OF ARIZONA,

Petitioner,

Vv.

RODNEY JOSEPH GANT,

Respondent.

On Writ Of Certiorari To The

Arizona Court Of Appeals, Division Two

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE AND

BRIEF AMICUS CURIAE FOR THE NATIONAL

ASSOCIATION OF POLICE ORGANIZATIONS

IN SUPPORT OF PETITIONER

JOEL D. BERTOCCHI

Counsel of Record

STEPHEN J. KANE

Mayer, Brown, Rowe &

Maw LLP

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

Counsel for amicus curiae

SOV

i

QUESTIONS PRESENTED

The petition for certiorar’ presented the following

question:

1. When police arrest the recent occupant of a

vehicle outside the vehicle, are they precluded from

searching the vehicle pursuant to New York v. Belton

unless the arrestee was actually or constructively aware

of the police before getting out of the vehicle?

Amicus also will address the following question,

which may be of assistance to the Court in resolving the

question presented by petitioner:

2. May police search the passenger compartment of

a vehicle incident to the arrest of a recent occupant of

that vehicle when the arrestee has been handcuffed and

placed in the back seat of a nearby police car at the time

the search is conducted?

ll

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................-00. i

TABLE OF AUTHORITIES .................... iv

INTEREST OF THE AMICUS CURIAE ............ 1

STATEMENT OF THE CASE.............0.205. 1

SUMMARY OF ARGUMENT ................... 4

ARGUMEINS .....06+«s65 eee 7

I. Whether Police Officers Can Tell If The Recent

Occupant Of A Vehicle Knew Of Their Presence

Before His Arrest Should Not Control Whether

Officers May Conduct A Belton Search After They

Have Arresteg FH. 2.544 cs Sed aeo eee bees 7

A. Belton Categorically Permits Police To Search

The Passenger Compartment Of A Vehicle Incident

To The Lawful Arrest Of A Recent Occupant.... 7

B. Belton Applies Regardless Of Whether The

Arrestee Was Aware Of The Police Before Exiting

Fise VORMGOE .. . 00s cddn eee e eee ee 11

1. Requiring police to determine whether an

arrestee was aware of a police presence before

exiting his vehicle undermines Belton’s bright-

Es PP re 12

2. Concerns for police safety and evidence

preservation arise from the arrest, regardless

of whether the arrestee was aware of the police

before exiting his vehicle ............... 14

eat ee et 6 et es eee Ses

iil

TABLE OF CONTENTS — Continued

Page

II. Belton Allows A Vehicle Search Incident To Arrest

Even If The Arrestee Is Handcuffed In The Back

Seat Of A Nearby Police Car When The Search Is

ia ks oe ae keen 9 a owe 17

A. Belton’s Bright-Line Rule Applies Regardless

Of Whether There Is Actual Danger To Officers

Ee a oN ey ee we bk Aw wow me A 18

B. Concern For Police Safety And Evidence

Preservation Continues To Exist When The

Arrestee Is Handcuffed In The Back Seat Of A

ts eee sk gk ak od we 21

ESET TEE eT eee Ree eee 25

iV

TABLE OF AUTHORITIES

Page

Cases:

Atwater v. City of Lago Vista,

304 U.S. SIS {QOO]) 2... cc eee 12, 13

Chimel v. California,

395 U.S. 752 (1969) ............ 7, 8,9, 10, 18

Dunaway v. New York,

OR WA. PUREE 6 mks iene 4,9, 13

Florida v. Thomas,

ee GE, POPES oct ee cnanws 17, 18

Glasco v. Commonwealth,

513 3.B.204 137 (Va. 1999) ............2. 14, 20

Knowles v. Iowa,

Ge De eS a ae are 14

Maryland v. Wilson,

DED We. WU ERDOED 6 keer eweees 15, 22

McDonald v. United States,

ek ee ere rer 7

Michigan v. Long,

MGS UB. IGE (UGGS) wc cic nwceans 22

Michigan v. Summers,

GOS WB. GR UAE) oii cc ce eee neas 15, 24

New York v. Belton,

453 U.S. 454 (1961) 0. ccc cece passim

Vv

TABLE OF AUTHORITIES — Continued

Page

Pennsylvania v. Mimms,

ok Ce ks eee ee een ee ree ee 15

People v. Bailey,

639 N.E.2d 1278 (IH. 1994)..............26. 20

People v. Bosnak,

633 N.E.2d 1322 (Ill. App. 1994)......... 15, 16

People v. Fernengel,

549 N.W.2d 361 (Mich. App. 1996) .......... 15

People v. Savedra,

SOT P.2G DRG Cookbo. 199D). ww cc ce wes eees 14

Pettigrew v. State, m

908 S.W.2d 563 (Tex. App. 1995) ........... 15

State v. Fry,

388 N.W.2d 565 (Wis. 1986) ............... 20

State v. Gant,

43 P.3d 188 (Ariz. App. 2002) ............... 3

State v. Gonzalez,

487 N.W.2d 567 (Neb. App. 1992)........... 15

State v. Tompkins,

423 N.W.2d 823 (Wis. 1988) ............... 16

State v. Wanzek,

598 N.W.2d 811 (N.D. 1999)............... 15

Thomas v. State,

761 So. 2d 1010 (Fla. 1999),

cert. dismissed, 532 U.S. 774 (2001) ..... 11, 17

ata iili

vi

TABLE OF AUTHORITIES — Continued

Page

United States v. Arango,

879 F.2d 1501 (7th Cir. 1989) ......... _es ae

United States v. Doward,

41 F.3d 789 (Tet Cir. 1994)... 0. cece. 20, 23

United States v. Franco,

961 F.2d 470 (10Gh Cir. I99Z). . 0 cc neeuss 20

United States v. Hudgins,

S2 F.3d 115 Gt Cie, I9GB) 2c vases 3,11

United States v. Karlin,

852 F.2d 968 (7th Cir. 1968) .........5. 20, 21

United States v. Lugo,

978 F.26 G3i tit Car. T90R). . 1. ees nasses 24

United States v. McLaughlin,

170 F.3d 889 (9th Cir. 1999) ........... 20, 24

United States v. Robinson,

414 U.2. SE teres «80544548 8,9, 19, 22

United States v. Sanders,

994 F.2d 200 (Sth Cir. 19935) 2. cc ccewns 22, 23

United States v. Snook,

88 F.3d GOS (Otis Cir. I99G) wc cee ees 16

United States v. Thornton,

325 F.3d 189 (4th Cir. 2003) ........ 14, 15, 16

United States v. Wesley,

293 F.3d 541 (D.C. Cir. 2002)... cence wes 20

Vii

TABLE OF AUTHORITIES — Continued

Page

United States v. Willis,

Ot Fa SiS C7 Cae. TS) wc cc eens 23

Washington v. Chrisman,

ee ee OE 60 35 che hoe wee bes 22

Miscellaneous:

FBI, Uniform Crime Reports: Law Enforcement

Officers Feloniously Killed and Assaulted

ok kook ee Se ee ee 22

Wayne R. LaFave, Case-By-Case Adjudication”

Versus “Standardized Procedures”: The Robinson

Dilemma, 1974 Sup. Cr. REV. 1275. ..6..000. 9

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

The National Association of Police Organizations

(“NAPO”) respectfully moves, pursuant to Supreme Court

Rule 37.3(b), for leave to file the attached brief amicus

curiae. Counsel] for petitioner has consented to the filing

of this brief, and his original signed consent has been

filed concurrently with the filing of this motion. Counsel

for respondent has declined to consent.

This case concerns the application of the Fourth

Amendment, U.S. Const. amend. IV, and specifically the

Court’s decision in New York v. Belton, 453 U.S. 454

(1981), to the search of respondent’s car incident to his

arrest. This case thus presents a factual scenario that

occurs hundreds, and even thousands of times a day in

this country: the arrest of a vehicle’s recent occupant.

As the Court has recognized in Belton and in other cases,

this scenario presents significant challenges to police

officers as they attempt to maintain their own safety and

preserve evidence while respecting the dictates of the

Fourth Amendment.

NAPO is an umbrella organization representing

police associations and unions nationwide. Through its

member groups it represents more than 230,000 active

sworn law enforcement officers at the state, county, and

local levels, as well as retired officers and concerned

citizens. Police officers such as those who are members

of NAPO groups have a strong and genuine interest in

the development of “workable rule{s],” Belton, 453 U.S.

at 460, under which they can conduct themselves within

the Fourth Amendment’s strictures, including rules that

govern the search of a vehicle incident to arrest.

NAPO hopes to offer the Court the perspective of

the working police officer on the lower court’s ruling, its

potential impact on officer safety and preservation of

(il)

evidence, and the necessity of crafting sensible and

easily applied Fourth Amendment rules that officers can

follow in the field. NAPO respectfully believes that an

opportunity to consider its views on the issues raised

herein would be of help to the Court in resolving this

case.

Accordingly, NAPO requests that the Court grant

its motion for leave to file the attached brief amicus

curiae in support of petitioner.

Respectfully submitted,

O) bixtoedl;

JOEL D. BERTOCCHI

Counsel of Record

STEPHEN J. KANE

Mayer, Brown, Rowe &

Maw LLP

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

Counsel for amicus curiae

INTEREST OF THE AMICUS CURIAE *

The National Association of Police Organizations, Inc.

(“NAPO”) is a coalition of police associations and unions

from across the United States. NAPO represents some

1,000 organizations, with over 230,000 sworn law

enforcement officers (including police officers, deputy

sheriffs, state troopers, highway patrol officers, and

traffic enforcement personnel), 11,000 retired officers,

and more than 100,000 interested citizens. NAPO seeks,

in part, to advance the interests of law enforcement

officers through legal advocacy. To that end, NAPO has

filed amicus briefs in cases in this Court that have raised

issues of concern to law enforcement officers.

This case presents an issue of considerable

importance to NAPO. Upon arresting the occupant of a

vehicle, law enforcement officers, acting- under the

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

regularly search the vehicle in order to ensure their

safety and prevent the destruction of evidence. These

interests would be compromised if, as the court below

held, officers were barred from conducting such searches

incident to arrest in situations where they were not sure

whether the suspect was aware of their presence before

getting out of his vehicle. NAPO therefore has a strong

interest in urging this Court to reverse the decision of

the Arizona Court of Appeals.

STATEMENT OF THE CASE

Police went to the home of respondent Rodney Gant

to investigate a report of narcotics activity. Respondent

answered the door, but falsely told the officers that he

was not Rodney Gant and that Gant was not at home.

Pet. App. A-2; Jt. App. 5, 10, 19, 31. After leaving

respondent’s home, police learned that respondent was

' This brief was not authored, in whole or in part, by counsel for any

party, and no person or entity other than amicus cunae and its

counsel made any monetary contribution to its preparation.

2

wanted for driving on a suspended license and that there

was an outstanding warrant for his arrest for failure to

appear. Pet. App. A-2

Officers then returned to respondent’s home, where

they found two people, one of whom possessed a crack

pipe, on the premises. Pet. App. A-2. While the officers

were still present, respondent drove his car into the

driveway. Respondent’s car passed one of the officers,

who shined his flashlight into the driver’s window and

recognized respondent. Ibid. As the officer walked

toward respondent’s car, respondent got out of the car

and walked toward the officer. Id. at A-3. The officer

called respondent by name, and respondent admitted

that he was Rodney Gant. The officer then arrested

respondent for driving with a suspended license and on

the outstanding warrant. Ibid. After placing respondent

in the back seat of a patrol car in handcuffs, the officers

searched respondent’s vehicle and found a handgun and

a jacket that contained cocaine and drug paraphernalia.

Pet. App. A-3; Jt. App. 5-7.’

Respondent filed a motion to suppress the evidence

found in his car, claiming that the warrantless search of

his car violated the Fourth Amendment. Pet. App. A-3.

The trial court denied respondent’s motion, ruling that

the car search was lawful as a search incident to

respondent’s arrest. Ibid.

2 NAPO acknowledges that the manner in which the facts of this

case were determined, i.e., an oral stipulation recited by the trial

judge and agreed to by the parties, was less than ideal. Nevertheless,

NAPO agrees with petitioner that the stipulated record contains all

the facts necessary to decide the question presented by this case. No

additional facts that might bear on whether the arresting officer

actually knew whether respondent was aware of the police before he

got out of his car are necessary to the resolution of this case because,

as NAPO argues herein, such a determination by the officer is both

impractical to require and irrelevant to the validity of the search of

the car after respondent’s arrest.

Stent ne

ee A

3

The Arizona Court of Appeals reversed, holding that

the search of respondent’s car violated the Fourth

Amendment. State v. Gant, 43 P.3d 188 (Ariz. App.

2002), reprinted at Pet. App. A. The court of appeals

rejected petitioner’s argument that the search of

respondent’s car was authorized under New York v.

Belton, 453 U.S. 454 (1981), ruling that “Belton is limited

to the particular factual situation in which it arose,” and

“applies only when ‘the officer iniiates contact with the

defendant * * * while the defendant is still in the

automobile.” Pet. App. A-6 (quoting United States v.

Hudgins, 52 F.3d 115, 119 (6th Cir. 1995)). The court

distinguished Belton on the ground that the record in

this case does not establish that respondent “was or

should have been aware either of the police presence at

the residence as he approached it or of the light the

officer shined into his vehicle.” Pet. App. A-5. The court

found it “significant” that “[respondent] volyuntarily—that

is, not in response to police direction—stopped his

vehicle, exited it, and began to walk away from it.” Ibid.

In deciding that the record does not sufficiently

establish that the officer initiated contact with

respondent by shining the flashlight into his car, the

lower court conducted a lengthy analysis of the

circumstances leading up to the arrest. The court found

that the record failed to establish a number of facts it

regarded as critical, including how far the officer was

from the car when he shined his flashlight at it, whether

respondent looked in the direction of the light, to what

extent obvious signs of police activity were visible outside

the home (such as flashing lights or uniformed officers),

and what the lighting conditions were like. In addition,

the court found nothing in the record to indicate that the

officer had intended to signal his presence and desire to

speak with respondent by shining the light into

4

respondent’s car (as opposed merely to trying to see who

was inside). Pet. App. A-7, A-8.

In a concurring opinion, one member of the three-

judge panel expressed “concerns that our ruling * * *

may frustrate [the] purposes [behind Belton] and

incorporate unintended nuances into this already

complicated Fourth Amendment arena.” Pet. App. A-10

to A-11.

SUMMARY OF ARGUMENT

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

adopted a bright-line rule that, when a police officer

makes a lawful arrest of the occupant of a vehicle, the

officer may search the passenger compartment of that

vehicle incident to the arrest in order to protect himself

and prevent the destruction of evidence. The Belton

Court acknowledged the need to craft “workable rule[s],”

453 U.S. at 460, and recognized that “‘a single, familiar

standard is essential to guide police officers, who have

only limited time and expertise to reflect” on the balance

of interests implicated by the Fourth Amendment, 453

U.S. at 458 (quoting Dunaway v. New York, 442 U.S.

200, 213-214 (1979)). As a consequence of these

concerns, the Belton Court held that the passenger

compartment of a vehicle, including containers within it,

categorically represented an area within the reach of an

arrestee, and therefore could be searched incident to the

arrest of the vehicle’s occupant. 453 U.S. at 460.

The Arizona Court of Appeals based its decision on a

peculiar misunderstanding of Belton. The court of

appeals held that an arresting officer’s right to conduct

a Belton search depends in part on whether the arrestee

was somehow aware of the presence of police officers

before he got out of his car and was arrested by them,

or, as the court put it, whether he “voluntarily” got out

of the car or got out because he knew the police were

APR CREE RENO Ig rere PH OE

5

outside and wanted him out. The court of appeals

concluded that Belton does not authorize a search of the

passenger compartment incident to arrest where the

arrestee gets out of his car before he learns the police are

present. The lower court’s holding should be reversed

because it interprets Belton in a way that both

undermines its bright-line rule and is irrelevant to its

underlying reasoning.

The lower court’s holding undermines Belton’s bright-

line rule by requiring police officers who did not cause

an arrestee to leave his vehicle to conduct a difficult and

individualized assessment of the events leading up to the

arrest to determine whether the arrestee knew of their

presence before he got out of the vehicle. Because the

typical arrest scenario provides police with little time to

make such a complex assessment, and because an

officer who has not himself stopped the arrestee’s car

would usually have no way of quickly judging, with any

degree of certainty, whether the arrestee had known of

his presence before his arrest, the lower court’s rule

undermines the need to provide officers in the field with

a rule that is simple and easy to apply.

Moreover, the fact that an arrestee exits his vehicle

before becoming aware of a police presence is irrelevant

to the rationale underlying the Belton rule—protection of

officers and evidence from the dangers that arise when

a person is arrested. Initially, the concerns for officer

safety and evidence preservation that underlie the rule,

and the resulting need to be able to neutralize those

dangers in the vehicle, come from the fact of the arrest

itself, regardless of what the arrestee knew. Whether the

arrested person knew before he was arrested that the

police were present is a fact that precedes, and is

therefore irrelevant to, that risk; consequently, what

officers might be able to discern about his knowledge

6

before they arrested him is similarly immaterial to their

need to search.

A person who, like respondent, is arrested after

exiting his vehicle is unlikely to be significantly less

angry or less motivated to reach for a weapon or destroy

evidence because he only learned the police were there

when they arrested him, as opposed to having seen them

through his window before getting out. In fact, the lower

court’s rule in this case increases the risk of harm to

officers and evidence by providing officers with an

incentive to confront suspects while still in their cars,

and thus closer to any weapons or evidence contained

therein, rather than (as might be wiser in some

situations) waiting for the suspect to move at least some

distance from his car. It could also provide suspects

with a similar incentive to leave their vehicles quickly in

order to keep them from being searched. Both incentives

pose risks to officers’ ability to control the scene of the

arrest.

Nor should the fact that the arrestee is handcuffed

and placed in the back seat of a nearby police car, as

was the case here, negate the authority to conduct a

Belton search. In Belton, the Court made clear that its

bright-line rule applies to cases where no real threat to

officer safety or evidence exists. Furthermore, concern

for officer safety and evidence preservation does, in fact,

continue to exist even when an arrestee is handcuffed in

the backseat of a police car at the time of the search; the

use of handcuffs and placement in a nearby vehicle may

reduce, but do not eliminate, the danger to the arresting

officer.

7

ARGUMENT

I. Whether Police Officers Can Tell If The Recent

Occupant Of A Vehicle Knew Of Their Presence

Before His Arrest Should Not Control Whether

Officers May Conduct A Belton Search After They

Have Arrested Him.

The ability of an officer to search a car incident to an

arrest under Belton is premised on risks that arise from

arrests generally. The lower court’s ruling that police

officers need to determine whether a suspett was aware

of their presence before that arrest took place assigns

controlling weight to an irrelevant factor and requires

officers in the field to perform a difficult and nuanced

evaluation of that irrelevant factor before deciding

whether they may act to protect themselves and any

evidence in the car. The Court should reject the lower

court’s rule as contrary to the concerns underlying

Belton, as well as to common sense.

A. Belton Categorically Permits Police To Search

The Passenger Compartment Of A Vehicle

Incident To The Lawful Arrest Of A Recent

Occupant.

The Fourth Amendment generally prohibits police

from conducting a search without first obtaining a

warrant. See Belton, 453 U.S. at 457. However,

recognizing that “‘the exigencies of the situation’ may

sometimes make exemption from the warrant

requirement ‘imperative,” this Court has identified

several exceptions to the warrant requirement. Id.

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

(1948)). One such exception is a search incident to

arrest. See Chimel v. California, 395 U.S. 752, 763

(1969).

In Chimel, the Court held that, after arresting a

suspect, police may search “the arrestee’s person and

8

the area ‘within his immediate control.” Ibid. The Court

provided two reasons for its holding. First, a search

incident to arrest permits the officer “to remove any

weapons that the [arrestee] might seek to use in order to

resist arrest or effect his escape.” Ibid. Second, a search

incident to arrest helps to prevent the arrestee from

destroying evidence. Ibid.

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

Court aprhcd Chimei to the search of a defendant’s

person after he had been ordered out of his car and

arrested. When the arresting officer felt an object in

Robinson’s coat pocket, !.© pulled the object from the

pocket, revealing it to be a “‘crumpled up cigarette

package.” Id. at 222-223. Still unsure what the

cigarette pack contained, the officer opened the pack and

found heroin. Ibid.

The Robinson Court upheld the search as incident to

a valid arrest. 414 U.S. at 236. In doing so, the Court

rejected a case-by-case analysis of “whether or not there

was present one of the reasons supporting the authority

for a search of the person incident to a lawful arrest.”

Id. at 235. Rather, the Court stated:

The authority to search the person incident toa

lawful custodial arrest, while based upon the

need to disarm and to discover evidence, does not

depend on what a court may later decide was the

probability in a particular arrest situation that

weapons or evidence would in fact be found upon

the person of the suspect. A custodial arrest of a

suspect based on probable cause is a reasonable

intrusion under the Fourth Amendment; that

intrusion being lawful, a search incident to the

arrest requires no additional justification.

Id. at 235 (emphasis added). Accordingly, in upholding

the search of the defendant’s person, the Court found it

RT iets eel aL Ih Se

9

irrelevant that the officer “did not indicate any subjective

fear” of the defendant, or that the officer “did not himself

suspect that [the defendant] was armed.” Id. at 236.

In Belton, the Court considered whether the

passenger compartment of a car fell “within [the]

immediate control” of an arrestee who had been the

recent occupant of the car. Belton, 453 U.S. 454. In

Belton, a police officer pulled over a speeding car. Id. at

455. While speaking with the occupants, the officer

smelled marijuana and saw an envelope on the floor of

the car with markings suggesting that it contained

marijuana. See id. at 455-456. The officer ordered the

men out of the car, arrested them for possession of

marijuana, and split them up into four separate areas of

the road. See id. at 456. The officer then searched the

car and discovered cocaine in the pocket of the

defendant’s jacket in the back seat. Ibid.

In approving the search, the Belton Court blended the

concerns for officer safety and the preservation of

evidence expressed in Chimel with Robinson’s preference

for a rule that was easy for officers to apply and did not

depend on the subtler facts of a given situation. The

Court observed that “‘a single, familiar standard is

essential to guide police officers, who have only limited

time and expertise to reflect on and balance the sociai

and individual interests involved in the specific

circumstances they confront.” 453 U.S. at 458 (quoting

Dunaway v. New York, 442 U.S. 200, 213-214 (1979)).

“‘A highly sophisticated set of rules, qualified by all sorts

of ifs, ands, and buts and requiring the drawing of subtle

nuances and hairline distinctions, may be the sort of

heady stuff upon which the facile minds of lawyers and

judges eagerly feed, but they may be literally impossible

of application by the officer in the field.” Belton, 453

U.S. at 458 (quoting Wayne R. LaFave, “Case-By-Case

10

Adjudication” Versus “Standardized Procedures”: The

Robinson Dilemma, 1974 SuP. CT. REV. 127, 141).

In addressing the proper scope of a vehicle search

incident to arrest, the Court noted that “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). Relying on this generalization about

arrestees and their vehicles, the Court announced the

following rule, meant to be of general application:

“(W]hen 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.” Jbid.

(footnote omitted). Because the defendant’s “jacket was

located inside the passenger compartment of the car in

which the [defendant] had been a passenger just before

he was arrested,” the Court held that the jacket was

“within the arrestee’s immediate control” and the search

thus complied with the Fourth Amendment. Id. at 462-

463.

The Belton rule therefore requires officers to make

only a simple and limited factual determination before

proceeding to search the interior of a vehicle: whether

the person they had arrested was in the vehicle or had

recently left it and remained nearby. The Court thus

avoided the need for police officers to make difficult

determinations on the fly as to whether their particular

situation posed the dangers presented by arrests

generally.

11

B. Belton Applies Regardless Of Whether The

Arrestee Was Aware Of The Police Before

Exiting His Vehicle.

The Arizona Court of Appeals heid that Belton does

not authorize the search of respondent’s car because

Belton “applies only when ‘the officer initiates contact

with the defendant * * * while the defendant is still in

the automobile.” Pet. App. A-6 (quoting United States v.

Hudgins, 52 F.3d 115, 119 (6th Cir. 1995)). The court

found that, unlike Belton, the record here does not

demonstrate that respondent “was or should have been

aware either of the police presence at the residence as he

approached it or of the light the officer shined into his

vehicle.” Pet. App. A-5. Instead, according to the court,

respondent “voluntarily—that is, not in response to

police direction—stopped his vehicle, exited it, and began

to walk away from it.” Ibid.

The knowledge requirement imposed by the court of

appeals will not make much difference in cases where an

officer has openly stopped the vehicle himself, such as in

a traffic stop like the one in Belton. Nonetheless, as the

facts of this case demonstrate,’ arrests of the recent

occupants of vehicles can occur in other factual

contexts, such as during unuercover operations or

where, as here, the suspect by his own actions places

himself in contact with officers before he is arrested.

These situations present the same dangers to officers

and evidence as do arrests made after traffic stops.

Therefore, in these contexts the lower court’s holding

both undermines Belton’s bright-line rule and is

irrelevant to its underlying rationale.

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

dismissed, 532 U.S. 774 (2001).

ee Se a

12

1. Requiring police to determine whether an

arrestee was aware of a police presence

before exiting his vehicle undermines

Belton’s bright-line rule.

The Court has characterized law enforcement’s

interest in bright-line, “readily administrable rules” as

“essential,” recognizing their value to police officers faced

with the need to make quick Fourth Amendment calls:

[A] responsible Fourth Amendment balance is not

well served by standards requiring serisitive, case-

by-case determinations of government need, lest

every discretionary judgment in the field be

converted into an occasion for constitutional

review. Often enough, the Fourth Amendment

has to be applied on the spur (and in the heat) of

the moment, and the object in implementing its

command of reasonableness is to draw standards

sufficiently clear and simple to be applied with a

fair prospect of surviving judicial second-guessing

months and years after an arrest or search is

made.

Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001)

(citations omitted). The lower court’s requirement that

officers try to figure out whether their arrestee knew they

were there before they arrested him in order to search

his car presents precisely the type of “sensitive”

determination that the Court has sought to avoid

requiring of officers in the field.

The lower court’s opinion itself demonstrates that

such an inquiry is incompatible with the notion of a

clear and simple rule. In finding that the record did not

establish whether the officer initiated contact with

respondent by shining a flashlight into his car, the court

identified a long list of circumstantial and sometimes

subjective factors that could have influenced that

ax——————EE———EEE——————

13

determination, including (a) the distance between

respondent’s vehicle and the officer, (b) the lighting at

the scene, (c) whether respondent would have seen that

a light had been shined into his vehicle, (d) whether

respondent would have identified that light with the

police, and (e) whether respondent had seen police

officers or any other sign of police activity at the

residence. Pet. App. A-7.

This kind of case-by-case analysis, difficult enough

for appellate judges to make clearly and simply, would

be even more so for police officers to undertake in

deciding whether they may search the vehicle of a recent

occupant incident to arrest. The typical arrest scenario

provides the officer with little time to consider the “‘social

and individual interests involved.” Belton, 453 U.S. at

458 (quoting Dunaway, 442 U.S. at 213-214). The

complexity and circumstantial nature of this,inquiry, like

most that involve assessing knowledge, renders it out of

place in thése circumstances. Police officers will

frequently have little way of knowing whether an arrestee

“was or should have been aware” of the police when he

exited his vehicle, as the lower court would require. Pet.

App. A-5.

Given the difficult and circumstantial nature of

the inquiry conducted by the lower court, litigation

about the arrestee’s awareness of a police presence is

likely to lead to disparate results, and would not provide

officers with “a fair prospect of surviving judicial second-

guessing months and years after an arrest or search is

made.” Atwater, 532 U.S. at 347. In sum, the lower

court’s requirement of a complex case-by-case inquiry

into the state of mind of the arrestee does not provide

officers with a “single, familiar standard [that] is

essential to guide police officers,” Belton, 453 U.S. at

458, and therefore undermines Belton’s rule.

14

2. Concerns for police safety and evidence

preservation arise from the _ arrest,

regardless of whether the arrestee was

aware of the police before exiting his

vehicle.

Whether an arrestee exits his vehicle before becoming

aware of a police presence is irrelevant to the concerns

underlying the Belton rule—officer safety and evidence

preservation. As the Fourth Circuit recently put it,

“(djanger to an officer from an arrest and the need to

discover and preserve evidence continue to be concerns

regardless of whether the arrestee exits the automobile

voluntarily or because of confrontation with an officer.”

United States v. Thornton, 325 F.3d 189, 195 (4th Cir.

2003); accord Glasco v. Commonwealth, 513 S.E.2d 137,

142 (Va. 1999); People v. Savedra, 907 P.2d 596, 601

(Colo. 1995). The justification for the intrusion of a

Belton search arises from the risks inherent in arrest

situations. Compare Belton with Knowles v. Iowa, 525

U.S. 113 (1998) (Belton search not justified where traffic

stop results in citation but no arrest made). That arrest

is thus all that is necessary to justify the intrusion.

Belton, 453 U.S. at 461. Accordingly, whether the police

have a need to take measures to prevent a suspect from

retrieving a weapon or destroying evidence in his car

after he has been arrested is not dependent on what he

knew before he was arrested.

The lower court’s rule in this case provides both

police officers and arrestees with perverse incentives that

are antithetical to the concerns underlying Belton. For

arrestees, the lower court’s rule would provide a motive

“to avoid lawful searches of their vehicles by rapidly

exiting or moving away from the vehicle as officers

approached,” thereby increasing both the number and

difficulty of situations in which officers must decide

whether the arrestee was aware of their presence before

LS

leaving the vehicle. State v. Wanzek, 598 N.W.2d 811,

815 (N.D. 1999); accord Pettigrew v. State, 908 S.W.2d

963, 570 (Tex. App. 1995); People v. Bosnak, 633 N.E.2d

1322, 1326 (Ill. App. 1994); State v. Gonzalez, 487

N.W.2d 567, 572 (Neb. App. 1992). In addition,

encouraging subjects to exit their cars as_ police

approach would diminish officers’ abilities to control the

movements of individuals at police encounters, thus

heightening concerns for officer safety. See Maryland v.

Wilson, 519 U.S. 408, 413 (1997); Michigan v. Summers,

452 U.S. 692, 702-703 (1981); Pennsylvania v. Mimms,

434 U.S. 106, 110 (1977).

For police officers, by contrast, the lower court’s rule

provides an incentive to approach all suspects in cars

overtly, so as to be sure (in the only way they could be

sure) that, if an arrest were made, they would be able to

protect themselves and any evidence present by

conducting a Belton search. The lower court’s rule thus

does not account for the fact that“when encountering a

dangerous suspect, it may often be much safer for

officers to wait until the suspect has exited a vehicle

before signaling their presence, thereby depriving the

suspect of any weapons he may have in his vehicle, the

protective cover of the vehicle, and the possibility of

using the vehicle itself as either a weapon or a means of

flight.” Thornton, 325 F.3d at 195.* Whether or not that

tactic is the safer one under a particular set of

circumstances will be a hard enough decision for officers

to make in the fleeting moments of a field encounter

without requiring their ability to protect themselves

under Belton to hang in the balance as well.

* See also People v. Fernengel, 549 N.W.2d 361, 364 (Mich. App.

1996) (O’Connell, J., dissenting) (police acted prudently by waiting for

the defendant to get out of his vehicle before making an arrest

because this procedure “negated any possibility that defendant would

use [the] weapon” in his car).

16 :

In addition to decreasing the risk of harm to police

and evidence, waiting until the suspect exits his car to

confront him could, in some circumstances, serve other

goals. For example, tinted windows or difficult weather

or lighting conditions could make it difficult for a police

officer to determine whether a vehicle’s occupant is the

suspect he is looking for. But the lower court’s rule

encourages the officer to confront the vehicle rather than

waiting until the suspect gets out of the car in order to

confirm the suspect’s identity. The lower court’s rule

thus would lead to additional unnecessary vehicle stops,

actually increasing the number of intrusions onto

citizens’ liberties. In short, police officers should be

provided with the discretion to decide whether the

circumstances justify waiting for the suspect to exit his

car before alerting the suspect to a police presence,

without forfeiting the ability to search the suspect’s car

incident to the arrest by doing so.

There will, of course, be cases where a Belton seerch

is impermissible because the arrest does not take place

until the defendant is far removed from his vehicle. See,

e.g., State v. Tompkins, 423 N.W.2d 823, 826 (Wis. 1988)

(arrest made fifteen minutes after arrestee exited his car

and entered nearby tavern). But in this case, where

respondent had taken only a few steps from his car

before being confronted by the police, it is clear that he

was sufficiently close to his vehicle at the time of his

arrest to satisfy the Belton rule. See Thornton, 325 F.3d

at 196 (police officer confronted the arrestee “within

moments” of exiting his vehicle) (emphasis in original);

United States v. Snook, 88 F.3d 605, 608 (8th Cir. 1996)

(arrestee “had just stepped out of his velicle as the

officer arrived”); People v. Bosnak, 633 N.E.2d 1322,

1327 (fll. App. 1994) (arrestee had walked ten yards

from his car before being confronted by police).

Therefore, this case does not require the Court to

determine the precise distance between the arrestee and

17

his car at which point a Belton search becomes

impermissible.

II. Belton Allows A Vehicle Search Incident To Arrest

Even If The Arrestee Is Handcuffed In The Back

Seat Of A Nearby Police Car When The Search Is

Conducted.

Although amicus believes that the question upon

which the Court granted certiorari in this case is limited

to the issues discussed above, some members of the

Court have recently expressed interest--in an almost

identical case--in an additional issue regarding the

execution of vehicle searches under Beiton. In the event

that the Court might find that consideration of this

’ additional issue will aid it in resolving the question

presented, amicus will address it.

Two years ago, the Court granted certiorari to review

a decision of the Florida Supreme Court holding that

“‘Belton’s bright-line rule is limited to situations where

the law enforcement officer initiates contact with the

defendant’ while the defendant remains in the car.”

Florida v. Thomas, 532 U.S. 774, 776 (2001) (quoting

Thomas v. State, 761 So. 2d 1010, 1014 (Fla. 1999)).

Although the Court ultimately dismissed the writ of

certiorari for want of jurisdiction, 532 U.S. at 781,

several members of the Court inquired at oral argument

in Thomas whether Belton would support the search of

the defendant’s vehicle in that case even though the

defendant was handcuffed and had been taken into a

nearby house at the time the police searched his car in

the driveway. In the ensuing colloquy, that situation

was compared to the one in this case, in which

respondent was arrested and placed in a nearby police

car. See, e.g., 4/25/01 Tr. of Oral Argument, Florida v.

Thomas, No. 00-391, at 12-13, 21-22.

18

Here, as in Thomas, the question presented is limited

to whether a vehicle search is valid under Belton where

the arrestee exits his car unaware of a police presence.

Nevertheless, given the Court’s interest expressed during

the Thomas argument, amicus will also address whether

Belton should apply where, as here, the arrestee is

placed in a nearby police car in handcuffs before the

vehicle search is conducted.

Amicus acknowledges that there are factual

differences between this case and Belton. In Belton, a

lone police officer pulled over a car with four occupants.

453 U.S. at 456. In this case, several officers were

present at the arrest of respondent. Despite this factual

difference, however, the Belton rule should still apply to

this case. First, Belton applies even in cases where no

threat to officer safety or evidence exists. Second,

concerns for officer safety and evidence preservation

persist where the arrestee is handcuffed in the back seat

of a police car at the time of the search.

A. Belton’s’ Bright-Line Rule Applies

Regardless Of Whether There Is Actual

Danger To Officers Or Evidence.

In announcing its bright-line rule, the Belton Court

recognized that the concern for officer safety and

evidence preservation would not exist in every instance

in which a vehicle’s occupant was arrested. The Court

noted that “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 [item].” 453 U.S. at 460 (quoting Chimel,

395 U.S. at 763) (emphasis added). Basing its decision

specifically on that very “generalization,” as well as the

need for a rule of similarly general application, Belton,

453 U.S. at 460, the Court announced a rule that was

-_ -——-

19

intended to apply to all vehicle searches incident to

arrest, regardless of the particular circumstances

surrounding the arrest. It thus would be inconsistent

with Belton’s bright-line rule to require a showing that

the arrestee presented a particularized risk of harm to

the officer or to the evidence before permitting the officer

to search the arrestee’s vehicle.

Further indication that the existence of an actual risk

of harm to a police officer or to evidence does not dictate

the officer’s ability to search the vehicle is found in

Belton’s holding that officers searching a vehicle

incident to arrest may open containers inside the vehicle

even when the containers “could hold neither a weapon

nor evidence of the criminal conduct for which the

suspect was arrested.” 453 U.S. at 461. The Belton

Court relied on Robinson, which had explained that the

authority to search incident to an arrest “does not

depend on what a court may later decide was the

probability in a particular arrest situation that weapons

or evidence would in fact be found upon the person of

the suspect,” but instead was a product of the arrest

itself. Robinson, 414 U.S. at 235; Belton, 453 U.S. at

461. Just as a police officer may open a container in a

vehicle even though the container “could hold neither a

weapon nor evidence of the criminal conduct for which

the suspect was arrested,” Ibid., so too an officer may

search a vehicle incident to arrest independent of his or

her subjective belief that the vehicle contains weapons or

evidence or that the arrestee would or could actually get

to it. In other words, once the officer has conducted a

lawful arrest of a vehicle’s recent occupant, the officer

may then search the vehicle regardless of “what a court

may later decide was the probability * * * that weapons

or evidence would in fact be found” in the automobild.

Ibid.

20

The lower courts have recognized that Belton “is a

bright-line rule that may be invoked regardless of

whether the arresting officer has an actual concern for

safety or evidence.” United States v. McLaughlin, 170

F.3d 889, 891-892 (9th Cir. 1999). Indeed, “the great

weight of authority” in the lower courts “holds that

Belton’s bright-line rule applies even in cases where the

arrestee is under physical restraint and at some distance

from the automobile during the search.” United States

v. Doward, 41 F.3d 789, 791 n.1 (1st Cir. 1994); accord

United States v. Wesley, 293 F.3d 541, 549 (D.C. Cir.

2002); McLaughlin, 170 F.3d at 891-892; United States

v. Franco, 981 F.2d 470, 472 (10th Cir. 1992); United

States v. Karlin, 852 F.2d 968, 970 (7th Cir. 1988);

Glasco v. Commonwealth, 513 S.E.2d 137, 140 (Va.

1999); People v. Bailey, 639 N.E.2d 1278, 1282 (Ill.

1994); State v. Fry, 388 N.W.2d 565, 574 (Wis. 1986).

In Karlin, for example, the defendant argued that

Belton did not apply to permit the search of his van

because, unlike the arrestees in Belton, he was

handcuffed in the backseat of a police car when officers

conducted the search. 852 F.2d at 970. The Seventh

Circuit disagreed, stating that if the factual differences

between the defendant’s arrest and Belton were “to

control, the [Supreme] Court’s preference for a

straightforward rule for guidance of police officers and

avoidance of hindsight determinations in litigation would

be frustrated.” Id. at 970-971. The court noted that

acceptance of the defendant’s position “would require a

factual determination in each instance of how

thoroughly the arrestee had been secured and his

distance from the vehicle.” Id. at 971. Because sucha

determination would be inconsistent with Belton’s

bright-line rule, the court upheld the search of the

defendant’s van without finding the need to determine

“whether the officer had rendered [the defendant]

incapable of reaching into the van.” Id. at 971-972.

BERRI IE EE OE

= a

. 21

The Seventh Circuit was correct in pointing out the

incompatibility between Belton’s bright-line rule and a

case-by-case examination of “how thoroughly the

arrestee had been secured and his distance from the

vehicle.” Karlin, 852 F.2d at 971. Individualized

determinations would require police officer to balance

innumerable factors, such as the number of officers at

the scene, the number of arrestees in the vehicle,

whether the arrestee was handcuffed at the time of the

search, the distance from the arrestee to his vehicle, the

arrestee’s physical strength, whether the arrestee has a

propensity for violence, and the proximity of any

confederates of the arrestee. This type of individualized

inquiry fails to provide police officers with the “single,

familiar standard” that allows officers to predict when

they may search a vehicle incident to arrest, and thus is

incompatible with Belton’s bright-line rule. 453 U.S. at

456.

B. Concern For Police Safety And Evidence

Preservation Continues To Exist When The

Arrestee Is Handcuffed In The Back Seat Of

A Police Car.

The risks to officers and evidence generated by an

arrest situation that the Belton Court relied on in

announcing its general rule are still sufficiently present

to iustify a search of an arrestee’s vehicle even where, as

here, the arrestee has been handcuffed and placed in

the backseat of a police car at the scene. Experience has

taught NAPO’s members that, while such confinement

may reduce the risk of aggressive action by the arrestee,

it does not by any means eliminate it, nor does it reduce

the danger posed by nearby confederates of the arrestee.

The purposes behind the Belton rule, namely simplicity

and safety, would thus be well served by retaining the

ability to conduct a search under that rule while the

arrestee remains at the scene, even if confined.

22

Every arrest “present(s] a risk of danger to the

arresting officer. There is no way for an officer to predict

reliably how a particular subject will react to arrest or

the degree of the potential danger.” Washington v.

Chrisman, 455 U.S. 1, 7 (1982) (citation omitted). All too

often the risk of danger to an arresting officer turns to

reality: about one-third of the 644 law enforcement

officers feloniously killed in the line of duty between

1991 and 2000 were killed during arrest situations. FBI,

Uniform Crime Reports: Law Enforcement Officers

Feloniously Killed and Assaulted 2000, Figure 3,

Circumstances at Scene of Incident, 1991-2000. Indeed,

this Court has recognized that the risk of harm to an

arresting officer increases when the circumstances of the

arrest involve a vehicle. See, e.g., Wilson, 519 U.S. at

413; Michigan v. Long, 463 U.S. 1032, 1048 n.13, 1049

(1983); Robinson, 414 U.S. at 234 n.5.

Handcuffing an arrestee and placing him in a nearby

police car, while a common practice, does not eliminate

the danger to the arresting officer. Regrettably, “[t]he

limitations of handcuffs’ effectiveness are widely known

to law enforcement personnel.” United States v. Sanders,

994 F.2d 200, 209 (Sth Cir. 1993) (describing cases

where handcuffed arrestees injure police officers). “[L]ike

any mechanical device, handcuffs can and do fail on

occasion.” Moreover, handcuffs “do not impair a

person’s ability to use his legs and feet, whether to walk,

run, or kick.” Jbid. And although kandcuffs limit a

person’s ability to use his hands and arms, “the degree

of the effectiveness of handcuffs in this role depends on

a variety of factors, including the handcuffed person’s

size, strength, bone and joint structure, flexibility, and

tolerance of pain.” Ibid.

Thus, although difficult, “it is by no means

impossible for a handcuffed person to obtain and use a

weapon concealed on his person or within lunge reach,

eT

23

and in so doing to cause injury to his intended victim, to

a bystander, or even to himself.” Sanders, 994 F.2d at

209. Escape from handcuffs and a patrol car are not

nearly impossible feats, and, if accomplished, present

extraordinary risks to officer safety and evidence if a

Belton search has not been conducted. In that situation

the escapee would present more than the usual dangers;

if weapons or evidence were in the nearby vehicle, he

would have the additional advantage over the officer of

knowing those facts.

Furthermore, the danger posed by the arrestee is not

the only risk officers face during and after an arrest.

Police also must be concerned about the possibility that

the arrestee has confederates in the area. In this case,

for example, respondent was arrested in the driveway of

his home, with others in the area who might have known

of the contents of respondent’s car (and certainly knew

as much or more about those contents than the police

did). Thus, “[i]t was certainly reasonable for the police to

have believed that [respondent] or others could possibly

gain access to a weapon or destroy evidence in the

vehicle.” United States v. Willis, 37 F.3d 313, 317 (7th

Cir. 1994) (Belton permitted search of defendant’s car

although he was handcuffed and in the backseat of a

police car at the time of the search where “[t]here were

also many individuals who were congregated in the

schoolyard near the vehicle”) (emphasis added); see also

United States v. Doward, 41 F.3d 789, 793 n.5 (1st Cir.

1994); United States v. Arango, 879 F.2d 1501, 1505 (7th

Cir. 1989) (“[T]he presence of an arrestee mandates the

need to protect both persons and evidence from the often

imprudent and unpredictable actions of a person just

arrested, or perhaps even a nearby confederate”)

(emphasis added).

Finally, limiting Belton to situations where the

arrestee is not handcuffed could increase the risk of

24

harm to police and the public. Given the “often

competitive enterprise of ferreting out crime,” some

police officers seeking certainty might put themselves

and the public at risk by not handcuffing the arrestee

and keeping him near his car so that they could search

it. See Summers, 452 U.S. at 703 n.18. There is simply

no need to create a disincentive to reduce risk by

creating tension between concerns for safety and

criminal investigation.

In light of the risks inherent in arrest situations,

police officers should be able to neutralize the scene of

arrest by taking all reasonable precautions, including

both the common practice of handcuffing the arrestee

and placing him in the back seat of a nearby police car

and searching the arrestee’s vehicle. Choosing the

former should not vitiate the ability to enhance safety

further by doing the latter as well.

Amicus acknowledges that there will likely be cases

where the arrestee is so incapacitated, or so removed,

from the scene of the arrest, and the officers so

otherwise in control, that the rationale for a Belton

search would be entirely absent, although determining

when that has occurred has not turned out to be an easy

task, even for courts examining the situation in

contemplative hindsight. Compare, e.g., United States v.

McLaughlin, 170 F.3d 889, 893 (9th Cir. 1999)

(upholding vehicle search initiated after police drove

arrestee away from the scene) with United States v. Lugo,

978 F.2d 631, 634 (10th Cir. 1992) (invalidating vehicle

search under similar circumstances). Police officers

might, if circumstances warrant, choose to remove an

arrestee entirely from the scene before they have

conducted a vehicle search, considering his mere

presence to pose a greater risk than nearby confinement

and a Belton search could dispel.

25

This case, though, presents a more common

scenario, in which respondent remained nearby, though

confined in a police car. Those measures did not

eradicate the risk that he or a confederate might have

grabbed the gun or the drugs that were, in fact, in his

car. Therefore, concern for officer safety and evidence

preservation existed in this case even though respondent

was handcuffed in the back seat of a police car while the

search of his car was conducted.

CONCLUSION

The decision of the Arizona Court of Appeals should

be reversed.

Respectfully submitted.

JOEL D. BERTOCCHI

Counsel of Record

STEPHEN J. KANE

Mayer, Brown, Rowe &

Maw LLP

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

Counsel for amicus curiae

JULY 2003

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