State v. Gant

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0385-PR
Appellee, )
) Court of Appeals
) Division Two
v. ) No. 2 CA-CR 00-0430
)
) Pima County
RODNEY JOSEPH GANT, ) Superior Court
) No. CR-20000042
Appellant. )
__________________________________) O P I N I O N

Appeal from the Superior Court in Pima County
The Honorable Barbara C. Sattler, Judge Pro Tempore

REVERSED

________________________________________________________________

Opinion of the Court of Appeals, Division Two
213 Ariz. 446, 143 P.3d 379 (2006)

JUDGMENT AFFIRMED; OPINION VACATED

________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel,
Criminal Appeals Section
Eric J. Olsson, Assistant Attorney General Tucson
Attorneys for State of Arizona

LAW OFFICES OF THOMAS JACOBS Tucson
By Thomas F. Jacobs
Attorneys for Rodney Joseph Gant
MICHAEL E. MCNEFF Chandler
By Michael E. McNeff

And

ERIC B. EDWARDS Phoenix
By Eric B. Edwards
Attorneys for Amici Curiae
Arizona Law Enforcement Legal Advisors’ Association
and Arizona Association of Chiefs of Police

MICHAEL G. RANKIN, TUCSON CITY ATTORNEY Tucson
By Baird S. Greene, Principal Assistant
City Attorney
Lisa A. Judge, Principal Assistant
City Attorney
Attorneys for Amicus Curiae City of Tucson
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 This case requires us to determine whether the search

incident to arrest exception to the Fourth Amendment’s warrant

requirement permits the warrantless search of an arrestee’s car

when the scene is secure and the arrestee is handcuffed, seated

in the back of a patrol car, and under the supervision of a

police officer. We hold that in such circumstances, a

warrantless search is not justified.

I. FACTS AND PROCEDURAL BACKGROUND

¶2 On August 25, 1999, two uniformed Tucson police

officers went to a house after receiving a tip of narcotics

activity there. When Defendant Rodney Gant answered the door,

the officers asked to speak with the owner of the residence.

Gant informed the officers that the owner was not home, but

- 2 -
would return later that afternoon. After leaving the residence,

the officers ran a records check and discovered that Gant had a

suspended driver’s license and an outstanding warrant for

driving with a suspended license.

¶3 The officers returned to the house later that evening.

While they were there, Gant drove up and parked his car in the

driveway. As he got out of his car, an officer summoned him.

Gant walked eight to twelve feet toward the officer, who

immediately arrested and handcuffed him. Within minutes, Gant

had been locked in the back of a patrol car, where he remained

under the supervision of an officer. At least four officers

were at the residence by this time and the scene was secure.

Two other arrestees had already been handcuffed and locked in

the back of separate patrol cars and there were no other people

around.

¶4 After Gant had been locked in the patrol car, two

officers searched the passenger compartment of his car and found

a weapon and a plastic baggie containing cocaine. Gant was

charged with one count of possession of a narcotic drug for sale

and one count of possession of drug paraphernalia for the baggie

that held the drug.

¶5 Gant filed a motion to suppress the evidence seized

from his car, which the superior court denied. Gant was

convicted of both charges and appealed. The court of appeals

- 3 -
held that the evidence should have been suppressed and therefore

reversed Gant’s convictions. State v. Gant, 202 Ariz. 240, 246,

¶ 18, 43 P.3d 188, 194 (App. 2002). After this Court denied

review, the State petitioned the United States Supreme Court for

certiorari. The Supreme Court granted the petition, vacated the

court of appeals’ opinion, and remanded to that court to

reconsider its opinion in light of this Court’s opinion in State

v. Dean, 206 Ariz. 158, 76 P.3d 429 (2003). Arizona v. Gant,

540 U.S. 963 (2003). In Dean, we held that when an arrestee is

not a recent occupant of his vehicle at the time of the arrest,

the reasons supporting a “warrantless search of the vehicle –

protection of the arresting officers and preservation of

evidence” – no longer justify the search and therefore the

police must obtain a warrant. 206 Ariz. at 166, ¶¶ 32-34, 76

P.3d at 437.

¶6 Following the Supreme Court’s remand, the court of

appeals remanded Gant’s case to the trial court to determine

whether Gant was a recent occupant of his car when he was

arrested. After an evidentiary hearing, the superior court

determined that Gant was a recent occupant and concluded that

the search of his car was thus justified as incident to his

arrest. Gant appealed and the court of appeals again reversed,

finding that the search of Gant’s car was not incident to his

arrest because it was not contemporaneous with his arrest and

- 4 -
did not satisfy the rationales set forth in Chimel v.

California, 395 U.S. 752 (1969), for dispensing with the warrant

requirement. State v. Gant, 213 Ariz. 446, 452, ¶ 18, 143 P.3d

379, 385 (App. 2006).

¶7 The State petitioned for review, which we granted

because this case presents an important question regarding

vehicle searches incident to arrest. We have jurisdiction

pursuant to Article 6, Section 5(3), of the Arizona

Constitution, Arizona Revised Statutes (“A.R.S.”) section 13-

4032(3) (2001), and Arizona Rule of Criminal Procedure 31.19.

II. DISCUSSION

¶8 The Fourth Amendment guarantees the right of citizens

to be free from unreasonable governmental searches. U.S. Const.

amend. IV; see also Terry v. Ohio, 392 U.S. 1, 9 (1968).1

“[S]ubject only to a few specifically established and well-

delineated exceptions,” a search is presumed to be unreasonable

under the Fourth Amendment if it is not supported by probable

cause and conducted pursuant to a valid search warrant. Katz v.

United States, 389 U.S. 347, 357 (1967).

¶9 The Supreme Court has recognized a “search incident to

a lawful arrest” as one of the exceptions to the Fourth

1
Gant does not claim a violation of the Arizona
Constitution. We therefore consider only whether the search
violated the Fourth Amendment.

- 5 -
Amendment’s warrant requirement. See, e.g., Chimel, 395 U.S. at

755. The Court justified the search incident to arrest

exception by the need to protect officers and preserve evidence:

When an arrest is made, it is reasonable for the
arresting officer to search the person arrested in
order to remove any weapons that the latter might seek
to use in order to resist arrest or effect his escape.
Otherwise, the officer’s safety might well be
endangered, and the arrest itself frustrated. In
addition, it is entirely reasonable for the arresting
officer to search for and seize any evidence on the
arrestee’s person in order to prevent its concealment
or destruction. And the area into which an arrestee
might reach in order to grab a weapon or evidentiary
items must, of course, be governed by a like rule. A
gun on a table or in a drawer in front of one who is
arrested can be as dangerous to the arresting officer
as one concealed in the clothing of the person
arrested.

Id. at 762-63. Based on the rationales of officer safety and

preservation of evidence, the Court limited the permissible

scope of a search incident to arrest to the “arrestee’s person

and the area ‘within his immediate control’” – that is, “the

area from within which he might gain possession of a weapon or

destructible evidence.” Id. at 763.

¶10 Although the rule has worked reasonably well in some

contexts, it has proved difficult to apply to automobile

searches incident to arrest, prompting the Supreme Court to

reconsider and redefine the permissible scope of such a search.

See New York v. Belton, 453 U.S. 454, 455 (1981). In Belton, a

police officer stopped a speeding vehicle and made contact with

- 6 -
the driver and three passengers while all occupants were seated

in the vehicle. Id. at 455-56. Upon smelling marijuana, the

officer ordered the occupants out of the car, arrested them, and

searched each one. Id. at 456. As the driver and passengers

stood by, the officer searched the car’s passenger compartment

and found a jacket containing cocaine. Id.

¶11 The sole question before the Court in Belton was the

“constitutionally permissible scope” of an otherwise lawful

search of an automobile incident to arrest, given the exigencies

of the arrest situation. Id. at 455, 457; see also Thornton v.

United States, 541 U.S. 615, 619 (2004) (describing Belton as

deciding “the constitutionally permissible scope of a search”

incident to arrest). Noting the lack of consistency among

courts in deciding how much of the automobile the police could

search incident to arrest and the desirability of a bright-line

rule to guide police officers in the conduct of their duties,

the Supreme Court held that the area within an arrestee’s

immediate control encompassed not only “the passenger

compartment of an automobile” that the arrestee recently

occupied, but also containers within the passenger compartment.

Belton, 453 U.S. at 458-60.

¶12 The State and our dissenting colleagues seek to bring

Gant’s case within the Belton rule. Unlike Belton, however,

this case deals not with the permissible scope of the search of

- 7 -
an automobile, but with the threshold question whether the

police may conduct a search incident to arrest at all once the

scene is secure. Because Belton does not purport to address

this question, we must determine whether officer safety or the

preservation of evidence, the rationales that excuse the warrant

requirement for searches incident to arrest, justified the

warrantless search of Gant’s car. Cf. Dean, 206 Ariz. at 166,

¶¶ 32-34, 76 P.3d at 437 (relying on Chimel rationales in

holding that arrestee was not a recent occupant of vehicle).

¶13 Neither rationale supports the search here. At the

time of the search, Gant was handcuffed, seated in the back of a

locked patrol car, and under the supervision of a police

officer. The other two arrestees at the scene were also

handcuffed and detained in the back of patrol cars, and the

record reflects no unsecured civilians in the vicinity. At

least four officers were on the scene. At that point, the

police had no reason to believe that anyone at the scene could

have gained access to Gant’s vehicle or that the officers’

safety was at risk. Indeed, one of the officers who searched

Gant’s car acknowledged at the evidentiary hearing that the

scene was secure at the time of the search. Therefore neither a

concern for officer safety nor the preservation of evidence

justified the warrantless search of Gant’s car. Absent either

of these Chimel rationales, the search cannot be upheld as a

- 8 -
lawful search incident to arrest.2

¶14 Nor does this case require this Court to “reconsider

Belton.” See Dissent ¶ 27. Belton dealt with a markedly

different set of circumstances from those present in this case.

The four unsecured occupants of the vehicle in Belton presented

an immediate risk of loss of evidence and an obvious threat to

the lone officer’s safety that are not present in Gant’s case.

See Belton, 453 U.S. at 455-56. Thus, in Belton, Chimel’s

justifications were satisfied and the search was “‘strictly tied

to and justified by’ the circumstances which rendered its

initiation permissible.” Id. at 457 (quoting Terry, 392 U.S. at

19). Here, to the contrary, because Gant and the other two

arrestees were all secured at the time of the search and at

least four officers were present, no exigencies existed to

justify the vehicle search at its inception. Belton therefore

does not support a warrantless search on the facts of this case.

¶15 It is possible to read Belton, as the State and the

Dissent do, as holding that because the interior of a car is

generally within the reach of a recent occupant, the Belton

bright-line rule eliminates the requirement that the police

2
We agree with Justice Scalia’s statement that applying the
Belton doctrine to justify a search of the car of a person
handcuffed and confined in a police car “stretches [the
doctrine] beyond its breaking point.” Thornton, 541 U.S. at 625
(Scalia, J., concurring in the judgment).

- 9 -
assess the exigencies of the situation. But, if no exigency

must justify the warrantless search, it would seem to follow

that a warrantless search incident to an arrest could be

conducted hours after the arrest and at a time when the arrestee

had already been transported to the police station. Yet the

Court was careful in Belton to distinguish United States v.

Chadwick, 433 U.S. 1, 15 (1977), overruled on other grounds by

California v. Acevedo, 500 U.S. 565 (1991), in which it had

rejected an argument that a search of a footlocker more than an

hour after the defendants’ arrests could be justified as

incidental to the arrest. In doing so, the Court noted that the

search occurred “after federal agents had gained exclusive

control of the footlocker and long after respondents were

securely in custody; the search therefore cannot be viewed as

incidental to the arrest or as justified by any other exigency.”

Belton, 453 U.S. at 462 (quoting Chadwick, 433 U.S. at 15).

Such a distinction would be wholly unnecessary under the State’s

interpretation of Belton.

¶16 Relying on language in United States v. Robinson, 414

U.S. 218 (1973), the State next maintains that the Chimel

justifications are presumed to exist in all arrest situations

simply by “the fact of the lawful arrest,” id. at 235, and so it

need not show that either Chimel rationale existed at the time

of the search.

- 10 -
¶17 But Robinson does not hold that every search following

an arrest is excepted from the Fourth Amendment’s warrant

requirement; if it did, the Court’s opinions in the cases

following Chimel would hardly have been necessary. Rather,

Robinson teaches that the police may search incident to an

arrest without proving in any particular case that they were

concerned about their safety or the destruction of evidence;

these concerns are assumed to be present in every arrest

situation. Once those concerns are no longer present, however,

the “justifications [underlying the exception] are absent” and a

warrant is required to search. Preston v. United States, 376

U.S. 364, 367-68 (1964); accord Chambers v. Maroney, 399 U.S.

42, 47 (1970) (“[T]he reasons that have been thought sufficient

to justify warrantless searches carried out in connection with

an arrest no longer obtain when the accused is safely in custody

at the station house.”); see also Chadwick, 433 U.S. at 15.

Similarly, when, as here, the justifications underlying Chimel

no longer exist because the scene is secure and the arrestee is

handcuffed, secured in the back of a patrol car, and under the

supervision of an officer, the warrantless search of the

arrestee’s car cannot be justified as necessary to protect the

officers at the scene or prevent the destruction of evidence.

¶18 The State also argues that the Supreme Court’s recent

decision in Thornton, 541 U.S. 615, compels a contrary result.

- 11 -
In Thornton, an officer in an unmarked patrol car ran a check on

the license plate of a suspicious car and discovered that the

plate was not registered to that car. Id. at 617-18. Before

the officer could pull the car over, Thornton parked and

alighted from the car. Id. at 618. The officer parked his

patrol car behind Thornton’s car, exited, and approached him.

Id. Thornton agreed to a pat down search, during which the

officer felt a bulge in Thornton’s pocket. Id. Thornton

admitted possessing drugs and produced bags containing marijuana

and crack cocaine. Id. The officer arrested and handcuffed

Thornton and placed him in the back of the patrol car. Id. The

officer then searched Thornton’s car and found a gun. Id.

¶19 Although the facts in Thornton resemble those in the

case before us, the case is distinguishable. Thornton never

claimed that being placed in the patrol car removed the Chimel

justifications for the search; rather, he challenged the

lawfulness of the search of his car on the ground that he was

out of his car before his encounter with the police began. Id.

at 619. Thus the Supreme Court’s opinion addressed only whether

the Belton rule applies when an officer does not initiate

contact with a vehicle’s occupant until after the occupant has

left the vehicle. Id. at 617, 622 n.2 (declining to address

question on which Court did not grant review), 624 n.4

(plurality declining to address questions other than “whether

- 12 -
the [Belton rule] is confined to situations in which the police

initiate contact with the occupant of a vehicle while that

person is in the vehicle”). The answer to that question turned

on whether, having stepped out of his car, Thornton was a recent

occupant for purposes of Belton when he was arrested. See id.

at 622-24. The Supreme Court concluded that he was:

[W]hile an arrestee’s status as a “recent occupant”
may turn on his temporal or spatial relationship to
the car at the time of the arrest and search, it
certainly does not turn on whether he was inside or
outside the car at the moment that the officer first
initiated contact with him.

Id. at 622 (footnote omitted).3

¶20 Because Thornton’s holding was carefully limited to

the question presented, the Supreme Court did not address

whether, even if an arrestee is a recent occupant, a search of

the arrestee’s vehicle is nonetheless unlawful if concerns for

officer safety or destruction of evidence – the Chimel

justifications – no longer exist at the time of the search. See

id. at 622 n.2, 624 n.4.

¶21 We are aware that most other courts presented with

similar factual situations have found Belton and Thornton

dispositive of the question whether a search like the one at

3
Gant concedes that he was a recent occupant of his car at
the time he was arrested, a concession borne out by the facts:
Gant was arrested immediately after alighting from his car and
within eight to twelve feet of it. See Thornton, 541 U.S. at
622; Dean, 206 Ariz. at 166, ¶ 30, 76 P.3d at 437.

- 13 -
issue was incident to arrest. E.g., United States v. Mapp, 476

F.3d 1012, 1014-15, 1019 (D.C. Cir.) (upholding search of

arrestee’s car conducted after he had been handcuffed and placed

in patrol car), cert. denied, 75 U.S.L.W. 3695 (Jun. 25, 2007);

United States v. Hrasky, 453 F.3d 1099, 1100, 1103 (8th Cir.

2006) (same), cert. denied, 127 S. Ct. 2098 (2007); United

States v. Osife, 398 F.3d 1143, 1144, 1146 (9th Cir. 2005)

(same); accord State v. Waller, 918 So. 2d 363, 364, 366-68

(Fla. Dist. Ct. App. 2005) (upholding search of arrestee’s truck

conducted after he was handcuffed and “secured at the back of

the truck”); Rainey v. Commonwealth, 197 S.W.3d 89, 91, 95 (Ky.

2006) (upholding search of arrestee’s car conducted after he was

handcuffed and “so far from his vehicle that it was unlikely he

could have accessed it”), cert. denied, 127 S. Ct. 1005 (2007);

State v. Scott, 200 S.W.3d 41, 43-44 (Mo. Ct. App. 2006)

(upholding search of arrestee’s car conducted after he had been

handcuffed and placed in patrol car); see also Thornton, 541

U.S. at 628 (Scalia, J., concurring in the judgment, citing

cases upholding searches conducted after arrestee had been

handcuffed and secured in patrol car). We do not, however, read

Belton or Thornton as abandoning the Chimel justifications for

the search incident to arrest exception. See Thornton, 541 U.S.

at 621 (“In all relevant aspects, the arrest of a suspect who is

next to a vehicle presents identical concerns regarding officer

- 14 -
safety and the destruction of evidence as the arrest of one who

is inside the vehicle.”); Belton, 453 U.S. at 460 n.3 (“Our

holding today 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 searches incident

to lawful custodial arrests.”). Because neither Belton nor

Thornton addresses the precise question presented here, we must,

if we are to maintain our constitutional moorings, rely on

Chimel’s rationales in reaching our holding.4

¶22 Amici Arizona Law Enforcement Legal Advisors’

Association and Arizona Association of Chiefs of Police assert

that, as a result of our holding, police officers will not

secure arrestees until after they have searched the passenger

compartment of an arrestee’s vehicle, thus jeopardizing the

officers’ safety. We presume that police officers will exercise

proper judgment in their contacts with arrestees and will not

engage in conduct that creates unnecessary risks to their safety

or public safety in order to circumvent the Fourth Amendment’s

4
Other courts have followed this approach as well. See
Ferrell v. State, 649 So. 2d 831, 833 (Miss. 1995) (holding that
search of arrestee’s car conducted after he had been handcuffed
and placed in patrol car did not fall within search incident to
arrest exception because the rationales underlying the exception
were absent); State v. Greenwald, 858 P.2d 36, 37 (Nev. 1993)
(same, citing Chimel).

- 15 -
warrant requirement. In this technological age, when warrants

can be obtained within minutes, it is not unreasonable to

require that police officers obtain search warrants when they

have probable cause to do so to protect a citizen’s right to be

free from unreasonable governmental searches.

¶23 We recognize the importance of providing consistent

and workable rules to guide police officers in making decisions

in the field. Belton sought to address this concern by creating

a bright-line rule regarding the scope of automobile searches

incident to arrest. The Supreme Court has not, however, adopted

a bright-line rule for determining whether a warrantless search

of an automobile is justified to begin with. In the absence of

such a rule, we look to the circumstances attending the search

to determine whether a warrant was required. See Dean, 206

Ariz. at 166, ¶ 34, 76 P.3d at 437 (examining “the totality of

the facts” in determining the necessity for a warrant).5 When,

5
The Dissent suggests that the majority opinion departs from a
“‘straightforward rule’ that does not depend on case-by-case
adjudication.” Dissent ¶ 39. But our dissenting colleagues
concede that a Belton search is proper only if it is “a
contemporaneous incident” of the arrest. Id. ¶ 38. Determining
whether the search is a contemporaneous incident, however,
requires the very case-by-case examination of the facts that the
Dissent criticizes. See Preston, 376 U.S. at 367. Indeed,
Thornton teaches that a determination that the defendant was a
recent occupant of the searched vehicle must also occur before the
Belton rule regarding the permissible scope of a search applies.
541 U.S. at 622. Thus, this opinion does not eviscerate any
existing bright-line rule; it merely inquires whether an exigency
remains to justify the search when the defendant is locked in a

- 16 -
based on the totality of the circumstances, an arrestee is

secured and thus presents no reasonable risk to officer safety

or the preservation of evidence, a search warrant must be

obtained unless some other exception to the warrant requirement

applies.

¶24 The State has advanced no alternative theories

justifying the warrantless search of Gant’s car, and we note

that no other exception to the warrant requirement appears to

apply. The officers did not have probable cause to search

Gant’s car for contraband, as is required by the automobile

exception. See Chambers, 399 U.S. at 51-52. No evidence or

contraband was in plain view. See Coolidge v. New Hampshire,

403 U.S. 443, 465 (1971) (plurality opinion). Moreover, the

officers testified that they had no intention of impounding

Gant’s car until after they searched the passenger compartment

and found the contraband. Thus the search cannot be

characterized as an inventory search. See South Dakota v.

Opperman, 428 U.S. 364, 372 (1976). There being no other

police car, just as the Dissent would ask whether the search was
reasonably contemporaneous to the arrest, and as the Court in
Thornton inquired to determine whether the defendant was so recent
an occupant as to present the threat of destruction of evidence or
access to a weapon. If the exigency justifying a search incident
to arrest disappears when the search is not proximate in time to
the arrest (or when the arrestee is not a recent occupant of the
car), it follows that the justifying exigency would also disappear
once the arrestee no longer has any possible access to evidence or
weapons.

- 17 -
exception to the warrant requirement justifying the search of

Gant’s car, the warrantless search was unlawful.

III. CONCLUSION

¶25 For the foregoing reasons, we hold that the

warrantless search of Gant’s car was not justified by the search

incident to arrest exception to the Fourth Amendment’s warrant

requirement. The evidence obtained as a result of the unlawful

search must therefore be suppressed. We reverse the judgment of

the superior court and affirm the judgment of the court of

appeals suppressing the evidence, but vacate the opinion of the

court of appeals.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

B A L E S, Justice, dissenting

¶26 Police officers immediately confronted Gant when he

drove up and got out of his car; within minutes, they arrested

him, placed him in handcuffs, and locked him in a patrol car;

they then promptly searched his car, where they found a pistol

and a bag of cocaine. The majority holds that the warrantless

- 18 -
search cannot be justified as incident to Gant’s arrest because,

at the time of the search, there were no exigent concerns for

either officer safety or the preservation of evidence. See Op.

¶¶ 13, 20.

¶27 Because I believe that the majority’s reasoning and

conclusion are inconsistent with the Supreme Court’s decision in

New York v. Belton, 453 U.S. 454 (1981), I respectfully dissent.

Although there may be good reasons to reconsider Belton, doing

so is the sole prerogative of the Supreme Court, even if later

developments have called into question the rationale for its

decision. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).

¶28 Belton itself was an extension of the Court’s holdings

in Chimel v. California, 395 U.S. 752 (1969), and United States

v. Robinson, 414 U.S. 218 (1973). In Chimel, the Court held

that, incident to a lawful arrest, police may properly search

the arrestee and the area within the arrestee’s “immediate

control” without a warrant. 395 U.S. at 763. Although “Chimel

searches” are justified by general concerns for officer safety

and the preservation of evidence, see id., in Robinson the Court

held that such searches are permissible regardless of whether,

in the circumstances of a particular case, “there was present

one of the reasons supporting the” exception to the warrant

requirement, 414 U.S. at 235.

¶29 The Court in Belton considered the application of

- 19 -
Chimel and Robinson when police arrest an occupant or recent

occupant of an automobile. There, an officer stopped a car and,

having reason to believe the occupants unlawfully possessed

marijuana, ordered the driver and his three companions out of

the car and placed them under arrest. 453 U.S. at 455-56.

After searching each individual, the officer then searched the

car’s passenger compartment, where he discovered a jacket on the

back seat. Id. at 456. He opened one of the jacket pockets and

found cocaine. Id.

¶30 Belton upheld the officer’s search of the jacket as a

valid search incident to arrest even though it occurred after

the defendant had been removed from the car and could not reach

the jacket. Id. at 462-63. The Court first extended the Chimel

exception to the passenger area of a car by adopting the

“generalization” that an arrestee might reach within this area

to grab a weapon or destroy evidence. Id. at 460. Having

defined the area of the suspect’s “immediate control” to include

the passenger compartment, the Court went on to 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” and “the contents of

any containers found within.” Id. (footnote omitted).

¶31 The search authorized by Belton does not depend on a

case-specific determination that there may be weapons or

- 20 -
evidence in the automobile. Indeed, the Court noted that its

holding would allow searches of containers that “could hold

neither a weapon nor evidence of the criminal conduct for which

the suspect was arrested.” Id. at 461. The Court nonetheless

concluded that the lawful arrest itself justified the search.

Quoting Robinson, the Court noted that “[t]he authority to

search the person incident to a lawful custodial arrest, while

based upon the need to disarm and to discover evidence, does not

depend on what a court may later decide was the probability in a

particular arrest situation that weapons or evidence would . . .

be found.” Id.

¶32 In holding that the search of Gant’s automobile

violated the Fourth Amendment, the majority’s analysis conflicts

with Belton in three respects. The majority concludes that the

search was not incident to Gant’s arrest because the Chimel

concerns for officer safety and preservation of evidence were

not present. See Op. ¶ 13 (“Absent either of these Chimel

rationales, the search cannot be upheld as a lawful search

incident to arrest.”).

¶33 The validity of a Belton search, however, clearly does

not depend on the presence of the Chimel rationales in a

particular case. Indeed, in Belton, the New York Court of

Appeals, much like the majority here, held that the search could

“not be upheld as a search incident to a lawful arrest where

- 21 -
there is no longer any danger that the arrestee or a confederate

might gain access to the article.” 453 U.S. at 456 (quoting

People v. Belton, 407 N.E.2d 420, 421 (N.Y. 1980)). In

reversing the state court and upholding the search, the Court in

Belton did not question the state court’s finding that the

jacket was inaccessible. Justice Brennan, dissenting in Belton,

pointedly noted that “the Court today substantially expands the

permissible scope of searches incident to arrest by permitting

police officers to search areas and containers the arrestee

could not possibly reach at the time of arrest.” Id. at 466.

¶34 Justice Brennan explicitly made the argument that the

majority adopts here. “When the arrest has been consummated and

the arrestee safely taken into custody, the justifications

underlying Chimel’s limited exception to the warrant requirement

cease to apply: at that point there is no possibility that the

arrestee could reach weapons or contraband.” Id. at 465-66.

While these observations have force, if they did not persuade a

majority of the Supreme Court in Belton, I do not think it is

appropriate for our Court to effectively rewrite Belton as

embracing them now.

¶35 Belton is also inconsistent with the majority’s focus

on the Chimel rationales at the time of the search. See Op. ¶¶

13-14. In Belton itself the search did not take place until

after the officer had already removed the defendant from the

- 22 -
car. 453 U.S. at 456. The Court did not consider whether one

of the Chimel rationales was present at the time of the search;

instead, the Court noted that the search was justified by the

arrest itself. Id. at 461. That the jacket was within the

passenger compartment in which Belton “had been a passenger just

before he was arrested,” meant that it was within his “immediate

control” for purposes of the search incident to arrest. Id. at

462 (emphasis added).

¶36 Because a Belton search is justified by circumstances

that the Supreme Court thought generally exist upon the arrest

of the occupant of a vehicle, the validity of the search does

not depend on particularized concerns for officer safety or

preservation of evidence at the time of the search. Thus,

Belton rejected the argument that the search of the jacket in

that case was improper because it did not occur until after the

officer had reduced it to his “exclusive control.” Id. at 461

n.5. Recognizing the implications of the Court’s reasoning,

Justice Brennan noted, “Under the approach taken today, the

result would presumably be the same even if [the officer] had

handcuffed Belton and his companions in the patrol car before

placing them under arrest . . . .” Id. at 468.

¶37 The point noted by Justice Brennan in his dissent has

been recognized by nearly every appellate court that has since

considered the issue: Belton implies that warrantless searches

- 23 -
may be conducted even when the arrestee has been handcuffed and

locked in a patrol car. See, e.g., United States v. Hrasky, 453

F.3d 1099, 1101 (8th Cir. 2006) (stating that the incapacitation

of the arrestee does not invalidate a subsequent search incident

to arrest under Belton), cert. denied, 127 S. Ct. 2098 (2007);

United States v. Weaver, 433 F.3d 1104, 1107 (9th Cir.)

(concluding that Belton controls where the arrestee is

handcuffed and locked in a patrol car), cert. denied, 126 S. Ct.

2053 (2006); United States v. Wesley, 293 F.3d 541, 547-49 (D.C.

Cir. 2002) (same); United States v. Humphrey, 208 F.3d 1190,

1202 (10th Cir. 2000) (same); 3 Wayne R. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 7.1(c), at 517 &

n.89 (4th ed. 2004) (listing cases).

¶38 That the Chimel rationales need not be present in a

particular case does not, as the majority contends, mean that

police may conduct warrantless searches hours after an arrest.

See Op. ¶ 15. Belton upheld the warrantless search of a

vehicle’s passenger compartment “as a contemporaneous incident”

of the occupant’s arrest. 453 U.S. at 460 (emphasis added). In

so ruling, the Court distinguished United States v. Chadwick,

433 U.S. 1 (1977), as not involving a search incident to an

arrest, see 453 U.S. at 461-62. The post-arrest search in

Belton was justified because it was incidental to the arrest,

not because other exigencies were present that were absent in

- 24 -
Chadwick. Thus, although Belton does not require a warrantless

search to occur simultaneously with the arrest, it must occur

within some temporal proximity. See Hrasky, 453 F.3d at 1101

(discussing decisions requiring search to occur “roughly

contemporaneous with the arrest” or within a “reasonable time”

after police obtain control of the vehicle); United States v.

Butler, 904 F.2d 1482, 1484 (10th Cir. 1990) (concluding that

search of item found in vehicle at police station not

contemporaneous with arrest); State v. Smith, 813 P.2d 888, 891

(Idaho 1991) (stating that half hour delay between arrest and

search permissible); State v. Kunkel, 455 N.W.2d 208, 210 (N.D.

1990) (concluding that search at police station not

contemporaneous with earlier arrest).

¶39 The majority also departs from Belton’s determination

that searches in this context should be guided by a

“straightforward rule” that does not depend on case-by-case

adjudication. See 453 U.S. at 458-59. The majority concludes

that a Belton search is not justified unless, “based on the

totality of the circumstances,” there is a “reasonable risk to

officer safety or the preservation of evidence.” Op. ¶ 23.

Such an inquiry can only be made on a case-specific basis,

initially by officers in the field and, if a search is later

challenged, post-hoc by reviewing courts. This approach is at

odds with the core premise of Belton. See Thornton v. United

- 25 -
States, 541 U.S. 615, 622-23 (2004) (“The need for a clear rule,

readily understood by police officers and not depending on

differing estimates of what items were or were not within reach

of an arrestee at any particular moment, justifies the sort of

generalization which Belton enunciated.”).6

¶40 The bright-line rule embraced in Belton has long been

criticized and probably merits reconsideration. Belton created

a significant exception to the Fourth Amendment’s warrant

requirement by making a generalization about the exigencies of

arrests involving automobiles and then allowing searches whether

or not the concerns justifying the exception were present in any

particular case. Belton thus rests on a “shaky foundation,” id.

at 624 (O’Connor, J., concurring in part), that has become even

more tenuous over time. Police officers routinely secure

suspects by handcuffing them before conducting Belton searches.

6
Belton itself does not completely avoid the need for case-
by-case inquiry, inasmuch as the Court limited the exception to
searches that are the contemporaneous incident of the arrest of
a vehicle’s occupant or recent occupant. Justice Brennan made
this very point in his dissent. See 453 U.S. at 469-71. But
this does not imply, as the majority contends, ¶ 23 n. 5, that
Belton’s application should turn on a case-specific finding of
exigent circumstances at the time of the search. Nor does
Thornton suggest that a case-specific assessment of exigent
circumstances should determine whether an arrestee is a “recent
occupant” for purposes of the Belton exception. See 541 U.S.
at 623 (refusing to limit Belton to searches in which police
initiate contact with suspect as it would involve “inherently
subjective” and “highly fact specific” determinations that
Belton sought to avoid).

- 26 -
Id. at 628 (Scalia, J., joined by Ginsburg, J., concurring in

the judgment) (noting that “[i]f it was ever true that”

arrestees generally have access to passenger compartments, “it

certainly is not true today”). See generally David S. Rudstein,

Belton Redux: Reevaluating Belton’s Per Se Rule Governing the

Search of an Automobile Incident to an Arrest, 40 Wake Forest L.

Rev. 1287, 1333-34 (2005) (discussing police practices).

¶41 But even if Belton were to be reconsidered, the

approach adopted by the majority is only one of several possible

alternatives. See id. at 1338-59. Although the majority

revives a case-by-case approach focusing on the presence of the

Chimel rationales at the time of the search, it would also be

possible to imagine a bright-line limitation to Belton’s bright-

line exception. For example, one could argue that a Belton

search is never justified as “incident to arrest” if it occurs

after a suspect is handcuffed outside the vehicle. Or perhaps

Belton should be limited so it continues to allow searches of

the passenger compartment but not containers found therein, see

Thornton, 541 U.S. at 634 (Stevens, J., joined by Souter, J.,

dissenting), or even replaced by a rule “built on firmer

ground,” id. at 625 (O’Connor, J., concurring in part), that

would allow warrantless searches when “it is reasonable to

believe evidence relevant to the crime of arrest might be found

in the vehicle,” id. at 632 (Scalia, J., joined by Ginsburg, J.,

- 27 -
concurring in the judgment).

¶42 If Gant had developed an argument under Article 2,

Section 8, of the Arizona Constitution, we might properly have

considered whether, as a matter of state law, to reject or

modify the Belton rule. Several other state courts have done

so. See, e.g., State v. Eckel, 888 A.2d 1266, 1275-77 (N.J.

2006) (rejecting Belton rule under state constitution); State v.

Bauder, 924 A.2d 38, 46 ¶ 19 (Vt. 2007) (describing state court

decisions rejecting Belton rule under state constitutions).

Here, however, we are faced only with arguments based on the

Fourth Amendment.

¶43 We can add our voice to the others that have urged the

Supreme Court to revisit Belton. See, e.g., Weaver, 433 F.3d at

1107 (noting that Belton “is broader than its stated rationale”

and suggesting that the Supreme Court re-examine this issue).

We cannot, however, take it upon ourselves to re-examine

Belton’s interpretation of the Fourth Amendment. Because Belton

allows the search of Gant’s vehicle, I respectfully dissent.

________________________________
W. Scott Bales, Justice

CONCURRING:

________________________________
Ruth V. McGregor, Chief Justice

- 28 -