dissenting. I agree with Judge Neal that the cases cited by the majority do not justify affirmance because in each of those cases, there was a nexus between the vehicle and the arrest that is sorely lacking in the instant case. Therefore, I join his dissent.
I also write separately to emphasize that by affirming a search where there was no nexus between the vehicle and the arresting conduct and where there was no need to safeguard the vehicle or its contents, the majority has created a new and dangerous precedent which seems to allow police to conduct an at-will search of the vehicle of any recent occupant who is arrested near the vehicle. The majority affirms the search here on the minimal facts that “appellant was clearly at least a recent occupant of his vehicle and in close proximity to his vehicle when he was placed under arrest.” In doing so, it transforms appellant’s arrest for hot checks and non-payment of child support into a pretext for an illegal search for drugs — illegal because the search was neither justifiable as a search incident to arrest or as an inventory search.
I cannot join the majority’s decision because it lowers the State’s burden of proof required to demonstrate that a warrantless search has been reasonably conducted and ignores the requirements of our federal and state law and rules of criminal procedure. The majority condones the search of a vehicle where the defendant was arrested outside the vehicle, where he gave no consent to have the vehicle searched, where there was no nexus between the vehicle and the criminal conduct upon which the arrest is based or any other crime, where there was no objective basis to believe that the vehicle posed a threat to the public or to the officers, and where there was no reason to believe the search was necessary to safeguard the vehicle or its contents. See Knowles v. Iowa, 525 U.S. 113 (1998); Ark. R. Crim. P. 12.1; Ark. R. Crim. P. 12.4; Ark. R. Crim. P. 12.6.
Because a warrantless search of a vehicle is presumptively unconstitutional, the burden is on the State to show legal justification for the warrantless search. Saul v. State, 33 Ark. App. 160, 803 S.W.2d 941 (1991). There are two historical rationales for the search incident to arrest exception to the warrant requirement, neither of which is present in this case: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. Knowles v. Iowa, supra. The United States Supreme Court adopted a bright-line rule regarding warrantless searches incident to lawful arrests in New York v. Belton, 453 U.S. 454 (1981). The Belton court held that when a police officer 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. However, the scope of the search must be strictly tied to and justified by the circumstances. Id. Moreover, an arrest may not be used as a pretext to search for evidence of other crimes; where the search and not the arrest is the officer’s true objective, the search is not a reasonable one within the meaning of the Constitution. Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986); Izell v. State, 75 Ark. App. 377, 58 S.W.3d 400 (2001).
We have heretofore never interpreted Thornton v. United States, 541 U.S. 615 (2004), New York v. Belton, supra, United States v. Chadwick, 433 U.S. 1 (1977), or United States v. Robinson, 414 U.S. 218 (1973), in the manner that the majority does today, which divorces an officer’s authority to conduct a warrantless search of a vehicle from the applicable laws and rules of criminal procedure governing such a search. Neither Chadwick nor Robinson involved the search of an automobile. As Judge Neal notes in his dissent, in Thornton and Belton the vehicles were related to the criminal activity that led to the stop or arrest in those cases. Thus, neither Thornton nor Belton stand for the bald proposition that an officer may search the vehicle of a person who is arrested near his vehicle simply because the person “was clearly a recent occupant of his vehicle.”
Prior to today’s decision, our jurisprudence concerning searches of vehicles incident to arrest or inventory searches has typically involved situations in which operation of the vehicle itself provided probable cause, such as during the commission of a traffic violation; or where the defendant gave consent to search, the officer saw something in plain view in the vehicle, or the officer smelled an incriminating odor. See, e.g., MacDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999) (suspect stopped for crossing center line, officer smelled marijuana, and the defendant gave consent to search); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995) (suspect stopped for crossing center line and officer saw marijuana roach in plain view in the front seat). The majority cites the general law governing searches incident to arrest, but, tellingly, cites no Arkansas case in which we have upheld a search, as either a search incident to arrest or as an inventory search, where the vehicle was not related to the conduct for which a defendant was being arrested or to any other crime. Indeed, it appears that we have never before affirmed a search incident to arrest merely because the suspect was a recent occupant of his vehicle and was near his vehicle at the time of the arrest.
Searches and seizures performed incidental to an arrest are governed generally by Arkansas Rule of Criminal Procedure 12.1; searches of vehicles performed incidental to an arrest are governed specifically by Rule 12.4. However, an examination of those rules reveals none of the factors that would justify a warrantless search in the instant case. Rule 12.1 provides:
Rule 12.1 Permissible purposes.
An officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused for the following purposes only:
(a) to protect the officer, the accused, or others;
(b) to prevent the escape of the accused;
(c) to furnish appropriate custodial care if the accused is jailed; or
(d) to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense.
Rule 12.4, in turn, provides:
Rule 12.4. Search of vehicles; permissible circumstances.
(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.
(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.
The majority briefly acknowledges the existence of these rules and states that Rule 12.1 allows the search of a passenger car “without regard to whether the circumstances warrant a reasonable belief that the vehicle contains things connected with the offense for which the arrest was made.” This is a dangerously incomplete statement of the requirements of this rule. If an officer has no reasonable cause to believe that items subject to seizure will be found in the car, then he may not search the car unless one of the other factors listed in the rule are present — the search is necessary to protect the officer, the accused, or others; to prevent the escape of the accused; or to furnish appropriate custodial care if the accused is jailed. The majority here, for all of its citations to authority, fails to demonstrate how any of the factors under 12.1 or 12.4 are met in this case.
In this case, appellant was arrested based on outstanding warrants for hot checks and non-payment of child support, but was convicted of possession of methamphetamine found in his jacket, which was located in his vehicle. The officers testified that they knew where appellant lived, so that when appellant waved they understood he was going to his house; Chief Earl Hyatt further stated that appellant had a tendency, when being stopped, to try to get to his house. Thus, the officers knew where appellant was going. There is not even the slightest indication that appellant was attempting to evade apprehension, flee, or disregard the officer’s directive to stop. Appellant parked his vehicle on the street in the vicinity of his private residence and had been inside his home for thirty to forty-five minutes before he was arrested. Officer James Loudermilk testified that on the street where appellant lives most of the houses do not have off-street parking and that most people park on the side of the road, as appellant did. Loudermilk also testified that appellant did not give consent for the officers to search the car.
On these facts, it is clear that the search was not justified as a search incident to an arrest because none of the factors listed in Knowles, supra, Rule 12.1, or Rule 12.4 are present. First, there is no proof that the vehicle posed a safety threat to the police or to the public that would require its impoundment. The officers provided no testimony that the search of the vehicle was necessary to disarm appellant; in fact, Hyatt began the inventory search before Loudermilk concluded his protective pat-down of appellant. Moreover, neither officer testified that the vehicle was parked in an unsafe manner, in a location that made it dangerous to leave unattended, or was illegally parked. Instead, they testified that the vehicle was parked in the vicinity of appellant’s home, on the side of a public street, consistent with the manner in which other residents who lived in the neighborhood parked their vehicles.
Second, there was no proof that the search was necessary to prevent appellant from escaping. He was already detained. Third, because the vehicle was parked near appellant’s home, there was no reason to search the vehicle to provide custodial care.
Fourth, appellant was arrested on warrants for hot checks and non-payment of child support, but the officers had no reason to believe that the vehicle contained any evidence related to those offenses; nor did the officers have reason to believe the vehicle contained evidence related to any other offenses. Cf. Haygood v. State, 34 Ark. App. 161, 804 S.W.2d 470 (1991) (affirming search of vehicle incident to arrest where, based on a'reliable informant’s tip, officers had reasonable cause to believe that the automobile contained items subject to seizure). Especially important, appellant’s vehicle was not involved in any traffic violation. Loudermilk testified that he had not received any information that appellant was engaged in any illegal activity in driving by the automotive store and that he had received no reports that appellant was driving erratically. Hyatt did not recall whether appellant’s tags had expired and said that he was not concerned about appellant’s registration.
It is true that drugs, weapons, and other contraband are commonly found in vehicles and on a defendant’s person or in his belongings. However, that reality does not prove that the officers in this case had a reasonable belief that evidence relating to the hot-check charges and non-payment of child support charge would be found in appellant’s vehicle. The pretextual nature of the search in this case is vividly demonstrated by simply asking, on the instant facts, what evidence could any officer have reasonably believed would be found in appellant’s vehicle that was related to the hot-check and non-payment charges? Is there any objective basis for thinking the officers would find a checkbook registry documenting that appellant had a negative balance at the time he wrote the specific checks that were returned for insufficient funds? What evidence the officers could have reasonably believed they would find relating to non-payment of child support, or any other charge, is even more difficult to fathom. The majority opinion fails to shed any light on this subject or to otherwise demonstrate how the search in this case is affirmable as a valid search incident to arrest. Respectfully, I contend that the majority opinion is silent because anything that might have been written to justify the search would have required sheer speculation.
This case is similar to Izell v. State, supra. In that case, we reversed a warrantless search where the defendant’s vehicle was parked on private property, he was arrested on a minor offense, he had already been restrained and patted down, and therefore, he posed no danger to the officers or to any evidence in the vehicle. We held that the arrest was neither a valid search incident to arrest nor a valid inventory search because no probable cause existed to assume the vehicle was related to any criminal activity, and because the vehicle, was, in fact, unrelated to the charge for which the defendant was being arrested — violation of a chancery court order prohibiting him from associating with his former girlfriend. Id.1 We further held that because the vehicle was on private property, it posed no risk to public safety and was not likely to be in danger of tampering.
The only appreciable differences between the Izell case and the instant case is that appellant here was not arrested on private property and was arrested in the vicinity of his vehicle. However, those differences are not dispositive. First, even though the vehicle was not on private property, I am unaware of any rule or case law that states unless a vehicle is located on private property, then ipso facto, it is automatically in need of safeguarding, regardless of the attendant circumstances. Even where a vehicle is stopped on a public road or highway and searched under the exigent circumstances exception to the warrant requirement, the State must still prove probable cause to believe the search of the vehicle will yield contraband or evidence useful for prosecution of a crime. Chambers v. Maroney, 399 U.S. 42 (1975); Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980). In any event, there was no testimony by the officers that would establish that the vehicle or its contents needed safeguarding due to the location or manner in which it was parked. Cf. Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000) (affirming a search incident to arrest for hot-check charges where the defendant was arrested at a grocery store). Thus, the fact that the vehicle was located on a public street did not justify an inventory search in this case, especially where the vehicle was located in the vicinity of appellant’s home.
Second, the fact that appellant was arrested near his vehicle is not dispositive because a suspect’s proximity to a vehicle, even when combined with his recent occupancy of the vehicle, does not provide a reasonable belief that the vehicle contains contraband, fruits of a crime, evidence of the commission of the offense for which the accused has been arrested, or other things criminally possessed or used in conjunction with the offense. If that were the rule, then any recent occupant of a vehicle who is arrested near his vehicle, for any reason, would be subject to having his vehicle searched, and our current applicable federal and state laws concerning warrantless seizures would be meaningless. While that is the apparent rule that the majority would adopt, it is clearly not countenanced under the authorities noted herein.
Third, the majority attempts to distinguish Izell because the defendant in that case had been inside his parent’s home for thirty to forty-five minutes before he was arrested. However, that fact does not minimize the applicability of the Izell case to the instant facts. The Izell court did not solely rely on the fact that the defendant was not a recent occupant of his car when he was arrested; the court also explicitly relied on the fact that there was no probable cause to believe that the vehicle contained any evidence of a crime because the Izell defendant was being arrested on a charge unrelated to his vehicle.
Thus, by affirming on the minimal facts that appellant was arrested near his car and was a recent occupant of his car, the majority here creates a new and draconian standard for analyzing the warrantless searches of automobiles that allows the State to sustain such searches on a lesser showing of proof than is required under federal law and Arkansas law. In short, the search of the vehicle in this case cannot be justified as a search incident to arrest because none of the factors supporting such a search were present.
Additionally, although not addressed by the majority, the search cannot be justified as an inventory search. The law governing inventory searches has been succinctly summarized as follows:
It is well-settled that police officers may conduct a warrantless inventory search of a vehicle that is being impounded in order to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); see also, Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). An inventory search, however, may not be used by the police as a guise for “general rummaging” for incriminating evidence. Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); Welch v. State, supra. Hence, the police may impound a vehicle and inventory its contents only if the actions are taken in good faith and in accordance with standard police procedures or policies. See Colorado v. Bertine, supra; Florida v. Wells, supra; Welch v. State, supra. In Welch v. State, we clarified that these standard procedures do not have to be in writing, and that they may be established by an officer’s testimony during a suppression hearing.
Benson v. State, 342 Ark. 684, 688, 30 S.W.3d 731, 733 (2000). Additionally, Arkansas Rule of Criminal Procedure Rule 12.6(b), governing inventory searches, provides: “A vehicle impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents.”
Typically, we have upheld an inventory search on the basis that it was reasonably necessary for safekeeping purposes because the vehicle was stopped or abandoned in a public place. See, e.g., Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990) (affirming inventory search of vehicle where driver was removed from the accident scene in semi-conscious state); Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989) (affirming inventory search of vehicle where narcotics suspect fled scene after attempting to shoot officer); Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720 (1979) (affirming inventory search where the vehicle, reported as stolen, was found abandoned and was a hazard on a public highway); Bratton v. State, 11 Ark. App. 174, 72 S.W.3d 522 (2002) (affirming inventory search of a vehicle that had been involved in accident and left disabled on road after the defendant had been transported to hospital); Colyer v. State, 9 Ark. App. 1, 652 S.W.2d 645 (1983) (affirming inventory search where the driver, a transient, was arrested on outstanding warrants and for being drunk on the highway, and where the vehicle lacked a license and was stuck in mud).
Inventory searches have also been affirmed where the search of the vehicle is related to the alleged criminal activity. Chambers v. Maroney, supra (affirming where the police had probable cause to believe that the robbers, carrying guns and fruits of crime, had fled the scene in the vehicle that was impounded and searched at the station house); Lewis v. State, 258 Ark. 242, 523 S.W.2d 920 (1975) (affirming the warrantless search of an automobile where the search was closely related to reason defendant was arrested, the reason the automobile was impounded, and the reason it was being retained); Cf. Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978) (reversing the warrantless seizure of a truck because the defendant was arrested for transporting controlled substances and there was no evidence that the particular truck had been used to transport controlled substances).
However, I found no other cases where we have affirmed an inventory search absent the need to safeguard the vehicle and its contents or where there was no connection between the vehicle and the crime for which the suspect was being arrested. Here, as noted previously, there was no evidence that the vehicle needed safeguarding, that it posed a public-safety hazard, or that it contained any evidence related to the hot-check and non-payment of child support charges. Accordingly, there is simply no evidence that it was “reasonably necessary” for the officers in this case to conduct an inventory search of appellant’s vehicle for the purpose of safekeeping the vehicle or its contents.
While the police may impound a vehicle and inventory its contents without a warrant where the actions are taken in good faith and in accordance with standard police procedures, Welch v. State, supra, that does not appear to be what transpired in this case. In reversing in Izell v. State, supra, we found that the police department’s policy of inventorying vehicles did not save the illegal search because the circumstances necessary to trigger the policy never existed in that case. Similarly, here there is no evidence that the search was performed pursuant to any established departmental policy, because there is no proof that the police department had implemented a policy directing a search of a vehicle in this situation. To the contrary, Hyatt testified that the departmental policy was to perform inventory searches where a person is arrested outside of his vehicle and where “the vehicle was out on public property or out somewhere.” Clearly, that was not the case here, where appellant’s vehicle was parked on the street in the vicinity of his home.
This decision is especially troubling for another reason. Public respect for the law, and the people who perform the important work of law enforcement, is closely related to public confidence that the people who enforce our laws are themselves accountable for respecting civil liberties. When police officers and agencies disregard civil liberties, well-established rules of criminal procedure, and their own internal practices, the public is entitled to look to courts and judges for vindication of those basic liberties.
It is a deeply troubling situation when courts and judges uphold police conduct that violates fundamental civil liberties and do so in the face of longstanding judicial precedent. When the public cannot trust the police to respect civil liberties or trust courts and judges to uphold those liberties, a society runs dangerously close to becoming a police state. No police officer, agency, judge or court ever admits preference for a police state. Rather, liberty is lost, as Judge Neal’s dissent observes, by degrees. Today’s decision is not a mere wayward step down a slippery slope; it is a running, head-first leap into an unconstitutional abyss. Even the members of the majority cannot fathom the depth of the judicial hole that this decision creates. We should not expect the public to respect a decision so clearly out-of-step with all known standards forjudging the validity of warrantless vehicular searches.
In responding to my dissent, the majority has misapprehended my position. First, the majority states that my position is “wrong,” then cites to the automobile exception, which it then concedes is inapplicable. Nowhere in my opinion do I assert that the automobile exception applies in this case. Next, the majority asserts that I argue that “the search of a vehicle may be conducted as an incident of the occupant’s arrest only where there is reasonable cause to believe that the search will yield evidence of a crime.” Nowhere in my argument do I assert this proposition.
Instead, while noting that we have yet to affirm a search in which the vehicle was not related to the arresting conduct, I consistently argue that the search in this case is not supported under federal or state law, including our rules of criminal procedure. While the majority waxes eloquent about the history of searches incident to arrest, it conveniently discounts the fact that we have never before upheld a search where none of the factors under our rules of criminal procedure are present. What we have done is applied Rule 12.1 and 12.4 in light of Belton, Thornton, and other applicable federal and state law. Despite the majority’s assertion, this approach is neither an “ad hoc standard” or a “nebulous” standard that “is not the law.” Rather, the standards cited are based on longstanding rules of law mandated by the United States Supreme Court and by the Arkansas Supreme Court. If these rules of law constitute “heady stuff,” it is “heady stuff’ approved by our highest state court, and the highest court in our land. It is incumbent upon law enforcement officers and judges to respect this “heady stuff.” Moreover, it is the sworn duty ofjudges to examine nuances of time, place, and circumstance to determine whether a person’s Fourth Amendment rights have been violated.
Given the facts of this case and applicable federal and state law, I am at a loss to see how the majority concludes that the warrantless search in this case was justified merely because appellant was a recent occupant of his vehicle and was arrested near his vehicle. I respectfully dissent.
I am authorized to state that Judge Neal joins in this dissent.
The police may perform an inventory search of a vehicle where a defendant is arrested at his home under certain circumstances. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998) (affirming inventory search of vehicle in plain view where police officers were lawfully on the defendant’s premises and in close proximity to husband’s vehicle at time of her arrest, where the husband had previously admitted that he used vehicle to transport methamphetamine, and indicated to officers that there may have been a gun in vehicle). The Fultz facts are obviously not applicable here, where, inter alia, there was no indication that the vehicle was related to any criminal activity.