# Amicus Curiae Brief — Arizona v. Gant > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1538%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2003 - **Citation:** 539 U.S. 974 ## Text 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 DAMM I FART TE asin sscneccsnssnssacevnssevesseasonseassaness ill CNT IEE ING cs sds ansicdssnscunansaasnnnitsdudueinsnedaiasccroadnuise l REAR UOU OE GP BRM CGM esi cciiscnscccscassessenesecssentsscissscsnsan: l 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 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.”). 12 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 13 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 14 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). 16 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 17 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 18 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 19 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 20 iY a x i 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 21 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 22 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 23 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 24 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). 25 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 26 I 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. ai 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 28 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. 29 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 125 Broad Street New York, New York 10004 (212) 549-2500 Lisa Kemler Zwerling & Kemler, P.C. 108 North Alfred Street Alexandria, Virginia 22314 (703) 684-8000 Dated: August 4, 2003 ny 30 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1538%3A13. Public record. Not legal advice.