Incident to Arrest

A new Supreme Court ruling expands officers’ vehicle search capabilities.

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As we've all been repeatedly reminded, searches conducted without a judicial warrant are presumed to be unlawful. (Katz v. U.S.) This means that whenever you make a warrantless search, you have the burden of establishing that it came within one of the recognized exceptions to the warrant requirement.

There are several exceptions that might apply to the search of a vehicle, including the following:

  • Instrumentality-the vehicle was used not merely as transportation but as an implement of the crime, such as in a drive-by shooting.
  • Probable cause-you have probable cause to suspect that the vehicle contains something seizable, and you have lawful access to the vehicle without having to make a warrantless entry into a garage.
  • Consent-someone who reasonably appears to have authority to do so voluntarily agrees to let you search.
  • Officer/Public Safety-you have a reasonable suspicion of the presence of a weapon or other dangerous item within the vehicle.
  • Inventory-the contents of a lawfully impounded or secured vehicle are listed for accountability and safety, according to an established policy.

Another longstanding exception is the search incident to arrest of an occupant of the vehicle. The circumstances under which this exception may apply were broadened by a recent U.S. Supreme Court decision.

The Belton Rule

Over the years, the Supreme Court has wrestled with various interpretations of the situations where a search could be considered "incident" to arrest, and the precise scope of such a search. It has been clearly established that a search of a vehicle incident to the arrest of an occupant has to be "contemporaneous" with the arrest-that is, at or near the time and place where the arrest is made. (U.S. v. Chadwick.) If you had the vehicle removed to the station or the impound lot, for example, a search would no longer be "incident" to the arrest, and another exception would have to be identified to support a warrantless search. (Dyke v. Taylor.)

To settle recurring issues about the allowable scope of a vehicle search incident to arrest, the Supreme Court sought to establish a bright-line rule in the 1981 case of New York v. Belton. In that case, a car carrying four men had been stopped for speeding. During the stop, the officer ordered the occupants out and developed probable cause to arrest all four for possession of narcotics. He went inside the vehicle and found passenger Belton's jacket on the rear seat. Inside a zippered pocket, cocaine was found. Belton moved to suppress the drugs on grounds of unlawful search.

The Supreme Court decided that instead of evaluating searches incident to arrest on a case-by-case basis to evaluate the justification to search, it would be best to announce one simple rule to define the scope of all vehicle searches incident to arrest that did not depend on the nature of the crime for which the suspect was arrested or his ability to gain immediate access to the interior of the vehicle. Said the court, "We 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."

What about sub-compartments and containers within the passenger compartment? "The police may also examine the contents of any containers found within the passenger compartment," and "'container' here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other well as luggage, boxes, bags, clothing and the like." The court specifically excluded the trunk of a passenger vehicle from this scope of search.

Thornton v. U.S.

The Belton rule is easy to apply whenever officers make a vehicle stop that yields a lawful custodial arrest of any occupant. But in the years since Belton, lower courts have come to differing conclusions as to whether the Belton rule also applies in cases where the driver or passenger got out of the vehicle before being contacted by the police. The Supreme Court has now confirmed that it does.

An officer intended to pull over the car being driven by Marcus Thornton for license plate irregularities. Before a stop could be initiated, however, Thornton pulled into a parking lot, parked, and walked away from his car. The officer contacted him, obtained a consent search, discovered drugs, and made an arrest. After handcuffing Thornton and putting him in the police car, the officer searched Thornton's car and found a handgun. At issue was whether the handgun could be admitted in evidence under the exception for vehicle searches incident to arrest, even though no vehicle stop had been made before the arrest.

A majority of the Supreme Court upheld admission of the gun, extending the search incident to arrest exception to cases in which the arrested person was a "recent occupant" of the vehicle. "So long as an arrestee is the sort of 'recent occupant' of a vehicle such as petitioner was here, officers may search that vehicle incident to the arrest."

The court did not say just how recently a "recent occupant" must have been inside the vehicle to invoke this exception. It seems likely that substantial intervening time or distance would tend to make the Thornton rule inapplicable. For example, if the suspect parks the vehicle and goes inside a residence or business where he is lawfully pursued and arrested, it would be prudent to obtain consent or identify some other exception before returning to search the parked vehicle.

The Thornton decision is also noteworthy for two other facets of its holding. Note that before the search, Thornton was already handcuffed and secured in the police car, and yet the court had no hesitation in upholding the search. (Some lower courts had ruled that once a suspect is cuffed and caged where he cannot gain access to weapons or contraband in his own vehicle, this exception does not apply.) According to the Supreme Court's decision, officers are not forced to choose between safety precautions and search authority. The arrestee can be secured, and a prompt search incident to arrest can then be conducted.

Also important in the Thornton opinion is the reaffirmation of the rule that it is the existence of probable cause to arrest, and not actually making a formal arrest, that justifies an incidental search. The court said, "Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment." At your option, therefore, you may arrest and secure the suspect first, or make the search first (assuming probable cause to arrest). If the search produces additional grounds for arrest, these may also be used. (But note that in Knowles v. Iowa the Supreme Court ruled that there can be no search incident to a detention and release on citation.)

The good news from Thornton is that a suspect who is able to pull over, lock his car, and try to walk away before you're in position to make a vehicle stop cannot defeat a valid search of his vehicle incident to arrest, where you have probable cause to arrest him and are able to contact him while he is still a "recent occupant" of the vehicle.

Attorney Devallis Rutledge, a former police officer and prosecutor, defends officers and agencies at Manning & Marder, Kass, Ellrod, Ramirez.

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DA Special Counsel
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