Amicus Curiae Brief — Arizona v. Gant

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02-1019 “ie

IN THE : AUG 4 - 2093

Supreme Court of the Ptitey States

> ex

STATE OF ARIZONA,

Petitioner,

RODNEY J. GANT,

Respondent.

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF ARIZONA

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION, AND THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS, IN SUPPORT

OF RESPONDENT

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

LISA KEMLER

Zwerling & Kemler, P.C.

108 North Alfred Street

Alexandria, Virginia 22314

(703) 684-8000

_ TABLE OF CONTENTS

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SUMMARY OF ARGUMENT.....000.0.. ccc cece cece cteeeeen 2

RARDIN A EN IONS OT RISE RAPED Re EERO NTT 6

I. THE BACKGROUND AND DEVELOPMENT

OF BELTON’'S PER SE RULE ................cccccsscscsssscecee 6

A. The Factors Compelling Be/ton’s Bright-

NI ex acces ecucaedcsuspenecsaceebness teahcanassndia<otsseeaui 12

B. The Factors That Compelled Be/ton’s

Holding Are Absent When An Officer

Seizes A Person Outside A Vehicle.................... 14

II. BELTON’S HOLDING DOES NOT EXTEND

TO ANY “RECENT OCCUPANT” OF AN

besiege nmeniincinmacn 17

A. Belton’s Per Se Rule Applies Only When

Police Seize A Person In A Car And the

Person Is Subsequently Arrested........................ 17

B. The Term “Recent Occupant” Is Inherently

IIIT 6\ slants sacessiscatscu ca akthaniecanislcaalaiioi 19

C. A “Recent Occupant” Rule Is Not Required

By This Court’s Precedents...............cssccscssseees 24

Ill. BELTON’S PER SE RULE SHOULD BE

RESTRICTED TO CASES WHERE A

PERSON WAS SEIZED WHILE AN

COCURPARTE Gir By Gaiciane seins

CONT TIMI oo ecsinssicccnumieentet teal eae

TABLE OF AUTHORITIES

Cases

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

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

Colorado v. Savedra,

PF Oe FP NO, USFS vvnsicssesecccserssosnsssasernonsee 20, 27, 29

Delaware v. Prouse, 440 U.S. 648 (1979)... ceeceeeeeeeeees at

Draper v. United States, 358 U.S. 307 (1959)........ceseeeeeeee 13

Florida v. Thomas, 532 U.S. 774 (2001)...........cscscccsssssserees 12

Glasco v. Virginia,

PE de EFF CVO LGFFD ccsnescsrnesesesersrssncenss 14, 16, 18, 29

Harris v. United States, 331 U.S. 145 (1947)......7, 23, 24, 25

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

Knowles v. Iowa, 525 U.S. 113 (1998) .........cccsscesssseeeeeessneee 3

Maryland v. Wilson, 519 U.S. 408 (1997)... eeeeecceeeeeeeeee 28

McDonald v. United States, 335 U.S. 451 (1948)... 10

Michigan v. Fernengel,

549 N.W.2d 362 (Mich. App. 1996)... eeeesseeeseeeees 19

Michigan v. Long, 463 U.S. 1032 (1983) ..... ce eeeeeeeees 24, 25

Minnesota v. Robb, 605 N.W. 2d 96 (Minn. 2000)............ 16

ill

Nebraska v. Gonzalez,

4E7 N.W 26 S67 CNB. ADD. TG9Z) vcccccscersssgrscscoscesessnncssees 27

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

New York v. Class, 475 U.S. 108 (1986) 00... cece eeeeeeeeeee 28

Ohio v. Retherford, 639 N.E. 2d 498 (Ohio App. 1994) .....27

Pennsylvania v. Mimms, 434 U.S. 106 (1977)............cccee 28

People v. Long,

288 N.W. 2d 629 (Mich. App. 1980)... eeeeeeeees 24, 25

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

PaO TI, Se Ce 0 OF PP iieticatasincnthnnceercte erecta 3

Texas v. Kelly,

963 S.W.2d 866 (Tex. App — San Antonio 1998)............ 19

United States v. Christian, 187 F.3d 663 (D.C. Cir. 1999)..15

United States v. Fafowora, 65 F.2d 360 (D.C. Cir.),

cert. denied, 493 U.S. 829 (1989).........ccccccccssseeceeeeeeeseees 15

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

United States v. Karlin, 852 F.2d 968 (7th Cir. 1988)......... 13

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

United States v. Robinson, 414 U.S. 218 (1973) ......... ee. 6, 7

United States v. Sholola,

LAO Fe See CTR, EDGED cisassesrastarccarrsetarecrssicccrcns 20, 21

United States v. Thornton,

32d Fe WEP CAG Bee atic 4, 22, 27

Vale v. Louisiana, 399 U.S. 30 (1970).............0cceeeeeeeeees 15, 28

Wyoming v. Houghton, 526 U.S. 295 (1999)... 6, 7, 25

Other Authorities

William J. Cuddihy, The Fourth Amendment:

Origins and Original Meaning, 602-1791,

(1990) (unpublished Ph.D. dissertation,

Ciaromont GirnGunte SCROGE) <....ccccccssescccscccaccssssesansctacstiacs 7

Thomas Y. Davies, Recovering the Original

Fourth Amendment, 98 MICH. L. REV. 547 (1999) ....... 6,7

WAYNE R. LAFAVE, A TREATISE ON THE

FOURTH AMENDMENT (1978)............ccccceeeeeeeees 9, 10,11, 13

WAYNE R. LAFAVE,

SEARCH AND SEIZURE (3d ed. 1996).............. 11, 12, 17, 23

Myron Moskovitz, A Rule in Search of a Reason:

An Empirical Reexamination of Chimel and Belton,

De THOM. Ts TR TET vcvnciniclsiaiauseidamsiees 8, 11

TELFORD TAYLOR, TWO STUDIES IN CONSTITUTIONAL

CTU T A THIN (TID i canscicecsacacceaticnccsuscensunasceataniaioneinn 7

INTEREST OF AMICI'

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Bill of Rights. The ACLU of

Arizona is one of its statewide affiliates. Since its founding

in 1920, the ACLU has frequently appeared before this

Court, both as direct counsel and as amicus curiae. In

particular, the ACLU has participated in numerous cases

addressing the proper scope of the Fourth Amendment.

ee cr te |

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 strives to defend

the liberties guaranteed by the Bill of Rights, and is

recognized by the American Bar Association as an affiliate

organization.

STATEMENT OF THE CASE

Police officers knew there was an outstanding arrest

warrant for respondent, Rodney Gant. The officers saw

respondent park his vehicle on a residential driveway. An

officer recognized respondent after he shined a flashlight

into respondent’s vehicle. The officer approached the vehicle

as respondent was exiting his car. As respondent was

walking toward the police, an officer called his name and

respondent acknowledged the officer. Respondent was

arrested and placed in a patrol car. A search of respondent’s

vehicle revealed a weapon and cocaine.

' 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.

Respondent was charged with possession of cocaine

and possession of drug paraphernalia. The trial court denied

his motion to suppress, finding that the search of the vehicle

was a Valid search incident to arrest. The Court of Appeals of

Arizona reversed. The appellate court found that New York v.

Belton, 453 U.S. 454 (1981), was inapplicable because the

facts did not show 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. AS. The facts revealed that respondent

“voluntarily — that is, not in response to police direction —

stopped his vehicle, exited it, and began to walk away from

it.” Id.

The court reasoned that Belton “applies only when

‘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, and the officer subsequently arrests the

defendant (regardless of whether the defendant has been

removed from or has exited the automobile).’” /d. at A6

(citation omitted). Accordingly, the Court concluded that the

search was beyond the permissible scope allowed by Belton

because the record did not establish that the police contacted

respondent while he was inside his vehicle, notwithstanding

the officer’s shining the flashlight. Pet.App. at A8. The court

also ruled that the search violated Chimel v. California, 395

U.S. 752 (1969), because the passenger compartment of the

vehicle was not within the immediate control of respondent

when he was arrested. Pet. App. A8-A9. The Arizona

Supreme Court denied review and this Court granted

certiorari.

SUMMARY OF ARGUMENT

In Chimel v. California and New York v. Belton, this

Court explained that although searches incident to arrest are

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 Jerry 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 court below held that Be/ton is limited to cases

where an officer initiates contact with a suspect while the

person is inside a vehicle, circumstances not present in this

case. Pet. App. A6. Petitioner seeks reversal of this ruling

| and urges a standard that permits an automatic and

| suspicionless search of a car anytime the police arrest a

“recent occupant” of the car. See Br. Pet. 7 (“Because Gant

was a recent occupant within the meaning of Belton when he

was arrested and the search was contemporaneous with that

arrest, the search was valid.”); id. at 24 (“the only viable test

is whether the individual was arrested while he was a recent

occupant of the vehicle, i.e., while he was in close spatio-

temporal proximity to his occupancy of the vehicle”).

This Court should not adopt petitioner’s proposal

because it is 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. Under petitioner’s rule,

police could observe a suspect park his car, walk a block

away from it, keeping both car and suspect in view. If they

then arrested the suspect, they could search the car because

the suspect was a “recent occupant” of the vehicle. Although

petitioner’s proposal would allow this search, the traditional

rationales that justify the search incident to arrest exception —

officer safety and preservation of evidence — would not.

Second, petitioner’s rule will not promote clarity.

Although petitioner criticizes the ruling below for blurring

the bright-line of Belton, Br. Pet. 14, petitioner’s proposal is

not a per se rule. Petitioner’s rule, which requires officers to

rely on their “training, experience, and the totality of the

circumstances,” does not provide any concrete standard for

determining recent occupancy. See id. at 24-25. Moreover, as

the Fourth Circuit recently acknowledged, if Belton is

extended to cover “recent occupants” of a vehicle, officers

and judges will still be required to make individualized

assessments regarding an arrestee’s temporal and spatial

proximity to a vehicle. United States v. Thornton, 325 F.3d

189, 196 (4th Cir. 2003) (“The Belton rule cannot be

stretched so as to render it limitless by permitting officers to

search any vehicle from which an arrestee has emerged,

regardless of how much time has elapsed since his exit or

how far he is from the vehicle when arrested.”’).

The ruling below is consistent with Chimel’s and

Belton’s mandate that search incident to arrest authority be

strictly confined. However, instead of the “initiates contact”

test relied on by the court below, 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 bright-line rule should be confined to

cases where police seize a person 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. Police 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, Belton’s

per se rule applies.

Before explaining why our proposal is a better

standard for advancing Fourth Amendment norms generally

and the goals of Belton specifically, we describe the

background and development of the Beiton rule. Belton

defined what constitutes “immediate control” under Chimel

for the frequently-occurring situation where police seize and

arrest automobile occupants. Determined to provide officers

with a “workable rule,” the Belton Court nevertheless

recognized that a per se rule authorizing a search of a

vehicle’s passenger compartment was not compatible with

Chimel’s “immediate contro!” test.

The incompatibility was evident in a series of lower

court rulings that upheld vehicle searches under Chimel’s

“immediate control” test even though arrestees were far

removed from their vehicles at the time of the search. 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 — handcuffed and sitting in a police cruiser ~ would

have access to the contents of his vehicle. Although we share

Justice White’s concerns that the result in Belton called for

“more caution” than that exhibited by the Belton majority,

453 U.S. at 472 (White, J., dissenting), we recognize that this

Court is unlikely to overrule Belton despite the tension

between Belton’s bright-line rule and Chimel’s intent to

strictly confine searches incident to arrest. Our proposal,

however, simultaneously satisfies Chimel’s mandate that an

officer’s search authority be strictly tied to the traditional

rationales for the search incident to arrest exception and

Belton’s determination to provide officers with a “workable

rule.”

Belton’s per se search rule 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,” Belton’s analytical focus

was directed at an arrestee who was an occupant of a vehicle

when seized by the police. 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,

5 POT iP LS TALIS

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.

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.

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 iegal 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 supvort 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 the

“reported decisions regarding the allowable scope of search incident to

arrest first became evident in court records during the late nineteenth

‘ century.” Jd. at 638, n.250. Thus, the common law, at the time of the

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

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

666

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

to and justified by” the circumstances which renderec 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. Jd. 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.”); see also Myron

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

Reexamination of Chimel and Belton, 2002 Wis. L. REv.

657, 659-60 (Chimel announces two rules: “a ‘negative’ rule

and a ‘positive’ rule. The ‘negative’ rule establishes where

the police may not search, and the ‘positive’ rule establishes

where they may search.... Since the police violated Chimel’s

rights under this ‘negative’ rule, the search was illegal.”).

Thus, there was no need for the Chime! Court to address the

question of “where the police are allowed to search” under

the “grabbing distance” prong. Id. at 660.

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, A

TREATISE ON THE FOURTH AMENDMENT § 7.1 at 499 (1978).

When occupants of automobiles were placed under arrest, -

some lower courts 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:

[C]ourts 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).

New York v. 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 arrest “‘must be strictly tied to and justified by

the circumstances which rendered its initiation permissible.’”

Id. 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.”’/d. 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 Be/ton 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

DES atte Ube A ce LIT pret

seca Te eT ee

(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. 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: §7.1

(a), at 435, n. 15 (3d ed. 1996); See Moskovitz, supra at 675-

76 (Current police policies still recommend removing

occupants away from the vehicle prior to a search.). Thus,

when an officer searches a car, the passenger compartment of

the vehicle is unlikely to be within the arrestee’s “immediate

control” or grabbing distance. In fact, most of the pre-Belton

lower court cases 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 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 “‘alter[ed] the fundamental principles established in .

. . Chimel,” id. at 460, n.3, application of Belton’s legal

fiction in the typical case 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 an arrest occurs indoors, deciding what

constitutes an arrestee’s “immediate control” depends on the

particular facts of each case. See 3 LAFAVE, supra § 6.3 (c)

at 305-12. In Belton, this Court recognized that determining

the proper scope of a vehicle search incident to the arrest of

an occupant 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

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

v. Thomas, 532 U.S. 774 (2001), highlights the tension between Belton’s

per se rule 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 I 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.”).

officer vegins a search incident to arrest, the arrestee is no

longer inside the vehicle, see United States v. Karlin, 852

F.2d 968, 971 (7th Cir. 1988) (“It seems quite likely that, in

instances where occupants of a car are arrested, they will be

outside the car and will have been placed under some

measure of security before the car is searched.”), 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 also 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

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 S.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.

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 the “grabbing

distance” of the arrestee all in a single stroke. Consequently,

the concerns that prompted Belton to adopt a legal fiction in

order to give officers a “workable rule,” Belton, 453 US. at

460, are extraneous to an arrest of a pedestrian. 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

Ret AP nan el ea

for a bright-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 States v. Fafowora,

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

(1989). See also United States v. Christian, 187 F.3d 663,

671, n.6 (D.C. Cir. 1999); People v. Stehman, 783 N.E. 2d 1,

7-8 (ill. 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 “[i]f a search of a house is to be upheld as

incident to an arrest, that arrest must take place inside the

house, not somewhere outside — whether two blocks away,

twenty feet away, or on the sidewalk near the front steps.” —

Id. 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.

Petitioner contends that “it is the mere fact that the

individual was arrested while he was a recent occupant of the

vehicle that justifies a Belton search.” Br. Pet. 22. This

argument permits an automatic and suspicionless search of

a 15

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 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 an arrestee’s car even though the vehicle is not

‘“within his immediate control,” they are not obeying the

rule announced in Chimel. Put simply, “[i]f 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 vy.

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

Petitioner’s position that Belton’s per se rule applies

to a recent occupant of a vehicle, Br. Pet. 24, conflicts with

Chimel’s rationale and purpose. Chimel warned that a search

incident to arrest provides no justification “for routinely

searching any room other than that 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 searching an arrestee’s vehicle unless it is “‘within his

immediate control.’” Jd. at 763. 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

Petitioner and its amici argue that Belton makes no

distinction between “occupants” and “recent occupants” of

automobiles. Br. Pet. 7-8 & 10-12; Br. U.S. 11 (“Belton

applies as long as the arrestee is a ‘recent occupant’ of the

vehicle.”). 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”

will create greater 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(b) 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 lawful decision to seize

him while he was inside the car and to arrest him after

detecting evidence of contraband in plain-view.

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.” 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 is seized while an “occupant” of a vehicle.

The Court 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. See also Glasco v. Virginia, 513 S.E. 2d.

at 144 (Lacy, J., concurring) (“A review of the cases

surveyed and cited [in] Belton as supporting the factual

presumption of access to the vehicle created in that case

reveals that in all but one case, the arrestee was arrested

while in the vehicle, and in all the cases the search of the

vehicle occurred after the arrestees exited the vehicles at the

direction of the police and while they were still within close

proximity of the vehicles.”). 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 Term “Recent Occupant” Is _ Inherently

Ambiguous

Petitioner and its amici assert that the ruling below

blurs the bright-line rule established in Belton. Br. Pet. 14;

Br. U.S. 16-17. However, 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.

Several lower courts have noted that if Belton is

extended to permit a search whenever police arrest a “recent

occupant” 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 (Colo. 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 the 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 (Wood J., concurring). Judge Wood feared that the

majority’s use of the phrase “positively linked” might “be

misunderstood in a future case.” Jd.

Sholola’s extension of Belton illustrates the dangers

of extending Belton to “recent occupants.” Deciding whether

a person is “positively linked” to a car when he or she is

seized outside the car requires considering the particular

facts of each case. Similarly, determining whether a person is

a “recent occupant” requires a particularized assessment of

the facts, and requires the type of case-by-case analysis and

subjective judgment that petitioner criticizes. See Br. Pet. 18.

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 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).

Petitioner and the United States recognize that a

“recent occupant” test is not a bright-line rule. Br. Pet. 26-

27; Br. U.S. 29. Petitioner’s proposal is to have officers

decide “based on their training, experience, and the totality

of the circumstances whether the arrest occurred in close

spatio-temporal proximity to the arrestee’s occupancy of the

vehicle.” Br. Pet. at 25. Rather than proposing a solution, the

United States essentially urges the Court to ignore the

ambiguity associated with the term “recent occupant.” The

Solicitor General asserts that there is “no reason to deny

officers the certainty and protection afforded by Belton in the

more typical case, such as this one.” Br. U.S. at 19. The

Solicitor General also states that “[i]n determining whether

Belton authorizes a vehicle search in outlying cases, courts

should assess the reasonableness of applying the Be/ton 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.” Jd. at 28.

The petitioner’s “totality of the circumstances”

alternative is not a bright-line rule. Petitioner’s submission

contains the same flaws inherent in a “recent occupant” test.

Attaching a “close spatio-temporal proximity” prong to a

“recent occupant” rule does not eliminate the line-drawing

problems for determining the scope of an officer’s search

incident to arrest powers. As the Fourth Circuit recently

acknowledged, “[t]he Belton rule cannot be stretched so as to

render it limitless by permitting officers to search any

vehicle from which an arrestee has emerged, regardless of

how much time has elapsed since his exit or how far he is

from the vehicle when arrested.” Thornton, 325 F.3d at 196.

Thus, under a “close proximity” prong, officers and judges

will still be burdened with weighing temporal and spatial.

factors to determine when a vehicle search is permissible

incident to a lawful arrest.

The Solicitor General ducks the difficult question of

defining when an arrestee qualifies as a “recent occupant” by

arguing that the facts here show that respondent was clearly

a “recent occupant” and that his case represents “the more

typical case.” Br. U.S. 19. The Solicitor General’s claim that

the fact pattern here is the typical scenario for Belton

searches is unsubstantiated by the record and contradicted by

the cases cited by the United States. See Br. U.S. 19, n.5.

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,

§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); United States v. Green, 324 F. 3d 375, 378-79 (Sth

Cir. 2003) (same). 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

should be left undisturbed and this Court should reject any

proposals that require police officers to assess the totality of

the circumstances when determining a suspect’s recent

occupancy of a vehicle.

More importantly, whether petitioner and its amici

choose to supplement a “recent occupant” rule with a “close

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

prong, the analytical flaw with all of these addendums is that

they allow police 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. /d. 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. Despite that rejection, petitioner proposes

that suspicionless car searches are per se reasonable

conditioned only upon the arrest of a recent occupant. 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.

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

marihuana. 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

confrontation into a non-seizure nor negate the applicability

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

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 petitioner

or as 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 Houghton, supra. 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 police may

conduct automobile searches whenever they conduct an

investigative stop.”). A “recent occupant” rule, 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

“Tajuthority to arrest does not dispense with the requirement

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

J., dissenting).

Il. BELTONS PER SE RULE SHOULD BE

RESTRICTED TO CASES WHERE A PERSON WAS

SEIZED WHILE AN OCCUPANT OF A CAR

The ruling below confines Belton’s bright-line rule to

cases where an officer initiates contact with a suspect found

inside a vehicle. Although the ruling below sought to

promote the aims of Chimel and Belton, judgments about

when, where, or how an officer initiates contact with an

automobile occupant, the degree or type of police contact, or

whether the occupant has “anticipated” possible imminent

police contact, do not in our view provide the best

reconciliation of Chimel and Belton. A more workable and

efficient rule is available to resolve the line-drawing

problems inherent in deciding the “grabbing distance” of a

“recent occupant” of a vehicle. The per se rule of Belton

should be limited to cases where a person is seized while

inside a car. If police arrest a recent occupant of a vehicle

who was not seized while inside the 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 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 lawfully seized an

occupant of a vehicle. See Delaware v. Prouse, 440 U.S. 648

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

A few lower courts have applied Belton in “recent

occupant” cases 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. See, e.g., Nebraska v.

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; United States v.

Thornton, 325 F.3d at 196. 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,

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 the 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 (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 if the arrest occurred outside the house). A few

Oi Rai cw

lower courts, however, have applied Belton to cases where

police arrest “recent occupants” of vehicles who were not

subject to seizure while inside their vehicles. See Glasco vy.

Virginia, supra; Colorado v. Savedra, supra. The courts

reasoned that a per se search is valid because “a

knowledgeable suspect has the same motive and opportunity

to destroy evidence or obtain a weapon as the arrestee with

whom a police officer has initiated contact.” Glasco, 513

S.E.2d at 142. This reasoning, however, proves too much.

By analogous reasoning, the police could search a

basement or kitchen that a suspect has just exited prior to his

arrest in the living room because the arrestee has the “same

motive and opportunity to destroy evidence or obtain a

weapon” as a person who was initially seized by the police

while in the basement or kitchen. This type of sloppy logic

was rejected in Chimel: “There is no comparable justification

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

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

all the desk drawers or other closed or concealed areas in that

room itself.” Chimel, 395 U.S. at 763. In sum, if police do

not have the authority to seize a person sitting in a car, then

that person’s decision to exit his vehicle cannot justify an

automatic search of the vehicle if the person is subsequently

arrested outside the car.

Finally, our proposal avoids the line-drawing

problems inherent in petitioner’s proposal that has officers

deciding whether an arrestee was in “close spatio-temporal

proximity” 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 respondent’s

vehicle was unreasonable because respondent was not seized

while an occupant of a vehicle.

CONCLUSION

For the reasons stated above, the judgment of the

Court of Appeals of Arizona should be affirmed.

Respectfully Submitted,

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