dissenting:
I do not agree with the majority’s narrow definition of “occupant,” which it uses to reach the conclusion that the bright-line rule of New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981), is not applicable here. The majority concludes that an arrestee is an occupant of a vehicle only when the police officer arrests or at least initiates contact with the suspect while he is still inside the automobile. To support its result, the majority relies upon the Sixth Circuit’s decision in United States v. Hudgins, 52 F.3d 115 (6th Cir. 1995), and two out-of-state cases (Thomas v. State, 761 So. 2d 1010 (Fla. 1999); People v. Fernengel, 216 Mich. App. 420, 549 N.W.2d 361 (1996)) that have followed it. Because I believe that the rationale of those cases is unsound and because highly persuasive contrary authority exists, I respectfully dissent.
In Belton, the Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Belton, 453 U.S. at 460, 69 L. Ed. 2d at 775, 101 S. Ct. at 2864. The Court added that “police may search inside the automobile after the arrestees are no longer in it.” Belton, 453 U.S. at 459, 69 L. Ed. 2d at 774, 101 S. Ct. at 2863; see also People v. Bailey, 159 Ill. 2d 498, 506 (1994) (validity of a search under Belton is not affected by fact that arrestee no longer has access to his vehicle when the search is conducted; this is trae even if the arrestee is handcuffed and sitting in the back of the squad car at the time of the search). The Court in Belton set forth a straightforward rule to facilitate guidance for police officers and to avoid hindsight determinations in litigation. Belton, 453 U.S. at 458-60, 69 L. Ed. 2d at 774-75, 101 S. Ct. at 1263-64. Belton does not add as a condition for the search that the police must initiate contact with a suspect before he exits the vehicle. The rule in Belton is premised upon the need to protect police officers and citizens from the actions of an arrestee or his confederate who might gain access to a weapon. United States v. Arango, 879 F.2d 1501, 1505 (7th Cir. 1989).
The primary safety rationale for the Belton rule is equally applicable whether or not the officer actually initiates contact or confronts the suspect before he exits the vehicle. The Supreme Court has repeatedly recognized that in any case involving a custodial arrest, the concern for officer safety is “ ‘ “legitimate and weighty” ’ ” (Knowles v. Iowa, 525 U.S. 113, 117, 142 L. Ed. 2d 492, 498, 119 S. Ct. 484, 487 (1998), quoting Maryland v. Wilson, 519 U.S. 408, 412, 137 L. Ed. 2d 41, 46, 117 S. Ct. 882, 885 (1997), quoting Pennsylvania v. Mimms, 434 U.S. 106, 110, 54 L. Ed. 2d 331, 336, 98 S. Ct. 330, 333 (1977)). In that regard, the Court has stated the following:
“In Robinson, we stated that a custodial arrest involves ‘danger to an officer’ because of ‘the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.’ [Citation.] We recognized that ‘[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest.’ [Citation.]” Knowles, 525 U.S. at 117, 142 L. Ed. 2d at 498, 119 S. Ct. at 487-88.
Given this language of Knowles, the trial court’s finding that there was no safety concern in this case was erroneous as a matter of law. Safety is always an attendant concern in every custodial arrest (Knowles, 525 U.S. at 117, 142 L. Ed. 2d at 498, 119 S. Ct. at 487-88) and is an even greater concern when a vehicle is proximately involved.
In the present case, defendant’s connection with the vehicle was proximate to the arrest. Because officer safety was as much a concern in the present case as it would be in a case with police-initiated contact while an individual is still within a vehicle, I believe that the majority’s distinction is an arbitrary one. I do not believe that it can be seriously maintained that it is consistent with Belton to allow a search if an officer catches an arrestee before he completely extricates himself from a vehicle, but not allow the search if police apprehend him a couple seconds later. In my view, it would enhance officer safety to allow the search of the vehicle after a defendant exits without police contact to minimize the danger inherent in approaching an occupant of a vehicle. But whether the defendant exits voluntarily or involuntarily, there is always a danger to the officer associated with the subsequent arrest and the proximity of the vehicle.
Recognizing that there is no persuasive rationale for drawing a distinction between suspects that exit before police contact and those that exit after police contact, numerous courts have rejected the approach the majority now takes. See, e.g., United States v. Sholola, 124 F.3d 803, 817 (7th Cir. 1997) (police never saw defendant actually inside vehicle, but, because he was apprehended near the vehicle and “positively linked” to it, the search of the vehicle was considered proper under Belton); United States v. Snook, 88 F.3d 605, 608 (8th Cir. 1996) (the fact that defendant had stepped out of his vehicle before being contacted by police did not alter his status as an occupant of the vehicle under Belton); Arango, 879 F.2d at 1506-07 (defendant who was stopped by police while walking away from automobile, but who then fled, was arrested one block away, and was then returned to area of automobile, was a recent occupant under Belton); Glasco v. Commonwealth, 257 Va. 433, 440-41, 513 S.E.2d 137, 141-42 (1999) (driver was a recent occupant within the limits of the Belton rule where he parked his car, crossed the street and was 30 feet from vehicle when police first initiated contact); State v. Wanzek, 598 N.W2d 811, 815 (N.D. 1999) (specifically rejected the line of cases that hold an arrestee is an occupant only when arrested inside the vehicle or where police initiate contact with the arrestee before the arrestee exits the vehicle; the court instead concluded that defendant was a recent occupant under Belton where she exited vehicle and was first contacted by the officer at rear of car).
The majority attempts to dismiss these cases by claiming that they focused on the need to prevent suspects from avoiding lawful searches of their vehicles by rapidly exiting or moving away from the vehicles as the officers approached. First, I note that with the possible exception of Wanzek, there is no indication in any of the above-cited cases that the suspects were aware of a police presence before exiting their vehicles. Second, police-safety concerns, upon which the Belton rule is premised, exist regardless of whether a suspect knows that there is a police officer in the vicinity before exiting a vehicle.
In Arango, for example, police followed defendant’s Jeep in an umarked police car. When the defendant and his companion parked the Jeep, police parked their unmarked car nearby. Police officers initiated contact with the defendant and his companion by asking for identification only after the two men exited the Jeep and began walking. There was no indication that the defendant knew about the police presence until after the officers identified themselves and asked for identification. Arango, 879 F.2d at 1503. The defendant badly injured one of the officers before fleeing the scene. The defendant was apprehended one block from the Jeep and transported back to the area of the vehicle. In concluding that the subsequent search of the Jeep was incident to the arrest and therefore proper, the court referred to the need to protect police officers from the unpredictable actions of the arrestee or his confederate and the preference in Belton forx avoiding hindsight determinations in litigation. Arango, 879 F.2d at 1505-07.
I find the Seventh’s Circuit’s rationale in Arango to be persuasive and would adopt it here. Because the possible actions of an arrestee are always considered unpredictable, the validity of the search of a vehicle is not affected by the fact that a defendant is not aware of the police before exiting or by the fact that a defendant no longer has access to a vehicle. I also note that, similar to the concern in Arango of a “nearby confederate,” the evidence here shows that defendant’s brother was nearby at the time of arrest and was of some bother to the arresting officer.
Additionally, I would infer from the Supreme Court’s decision in Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983), that initial contact by a police officer before an arrestee exits a vehicle would not be required by the Court to support a Belton search. In Long, the defendant swerved off the road and into a ditch. The defendant exited his vehicle and met the police officers who had stopped to investigate at the rear of his vehicle. Even though the Court upheld the officers’ subsequent search of the defendant’s vehicle based on the principles enunciated in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the Court also noted that “[i]t is clear *** that if the officers had arrested Long for *** driving while intoxicated, they could have searched the passenger compartment under New York v. Belton.” Long, 463 U.S. at 1035 n.l, 77 L. Ed. 2d at 1210 n.1, 103 S. Ct. at 3473 n.1.
Although I would find the search proper whether or not the police encounter was initiated prior to defendant’s exit from the vehicle, I must note my disagreement with the majority’s conclusion that there was “no evidence that the confrontation with defendant was initiated before defendant exited the vehicle or that he had exited the vehicle to avoid an encounter with the officer.” I believe that ample circumstantial evidence was presented that defendant knew of the police presence before he exited the vehicle. Defendant admitted that he had failed to appear for his scheduled court date and that he had noticed the police squad car when he pulled into the restaurant parking lot after making his delivery. The arresting officer testified that he pulled his squad car in directly behind defendant’s vehicle “in a ‘T’, so [defendant] couldn’t get out” while defendant was still in his vehicle. Moreover, the arresting officer and defendant exited their respective vehicles at the same time. Under these facts, the rule the majority announces today can only encourage individuals to avoid lawful searches of their vehicles by rapidly exiting and moving away from the vehicle as officers approach. As the court in Wanzek observed, police officers should not have to race from their vehicles to the arrestee’s vehicle to prevent the arrestee from getting out of the vehicle in order to conduct a valid search. Wanzek, 598 N.W.2d at 815.
I also disagree with the majority’s assertion that the appellate court’s decision in People v. Bosnak, 262 Ill. App. 3d 122 (1994), can be distinguished from the present case. In Bosnak, the defendant parked his car, exited and was 10 yards from it when first contacted by police. At that time, defendant noticed a squad car parked 15 to 20 yards from where his car was parked, and the squad car did not have its emergency lights or headlights activated. Defendant was arrested for driving with a suspended license, handcuffed, and placed in the backseat of a squad car. The arresting officer then conducted a search of defendant’s automobile and found cannabis in the glove compartment. The trial court suppressed the evidence seized as a result of the search of defendant’s car. Bosnak, 262 Ill. App. 3d at 125.
On appeal, the appellate court found that the search of the vehicle was valid as a search incident to arrest, rejecting the defendant’s claim that Belton did not apply because he was not an “occupant of an automobile” just prior to his arrest. Bosnak, 262 Ill. App. 3d at 129-30. In so doing, the Bosnak court expressly rejected the rule of the Sixth Circuit Court of Appeals, which the majority of this court now adopts. In that regard, the Bosnak court stated the following:
“If we were to adopt a contrary rule, we would be giving a driver or passenger the power to avoid an otherwise lawful search of the vehicle by quickly exiting and moving away from the vehicle before the officer has an opportunity to approach him. The undesirable consequences of such a rule are well illustrated by [United States v. Strahan, 984 F.2d 155 (6th Cir. 1993)]. In that case, the court noted that the officers saw the defendant park his car and quickly exit it. The officers believed that the defendant moved hurriedly because he recognized the police vehicle, which the officers had used to arrest him on a prior occasion. [Citation.] By holding that the defendant was not an occupant of a vehicle, that court allowed the defendant to prevent a search that otherwise would have been permissible under Belton. Although we recognize that in the present case the trial court may have concluded that defendant was unaware of the officer’s presence until the officer called him, our analysis must focus upon the reasonableness of the officer’s actions under the circumstances apparent to him, as opposed to defendant’s state of mind.
sK
We acknowledge that there is a point at which a person who exits his vehicle can no longer be considered an ‘occupant of an automobile’ under Belton. (See State v. Tompkins (1988), 144 Wis. 2d 116, 123-24, 423 N.W.2d 823, 826 (Belton not applicable where defendant was arrested in a tavern after having exited his vehicle about 15 minutes earlier); Gauldin v. State (Tex. Crim. App. 1984), 683 S.W2d 411, 414 (where defendant was approached by the police inside a tavern and led out to parking lot where he was arrested, and where defendant admitted to having driven to the bar within the hour, defendant was neither an ‘occupant’ nor a ‘recent occupant’ of his truck under Belton).) However, we do not perceive a distance of only 10 yards and a time span of only a few moments as barring the application of Belton in this case.” Bosnak, 262 Ill. App. 3d at 129-30.
The majority claims that the case before us is distinguishable from Bosnak because here the arresting officer “did not see defendant driving erratically or commit any traffic offense, and the State offered no evidence that the confrontation with defendant was initiated before defendant exited the vehicle or that he had exited the vehicle to avoid an encounter with the officer.” The majority’s attempt to distinguish Bosnak on these grounds is completely without merit.
First, I note that the holding in Bosnak was not premised on the officer’s observation of erratic driving or the commission of a traffic offense. Rather, the holding was based on the fact that the officer observed the defendant in a vehicle just prior to the arrest. Bosnak, 262 Ill. App. 3d at 128-29. As the court explained in distinguishing People v. Kolody, 200 Ill. App. 3d 130 (1990) (a case where defendant was in proximity to a vehicle but was never observed inside of it so it could not be known whether he was a recent occupant), the arresting officer in Bosnak observed “defendant while defendant was driving his car” and, therefore, it was clear that the defendant was an occupant of an automobile almost immediately prior to his arrest. Bosnak, 262 Ill. App. 3d at 129. I also note that the observation of a traffie offense or erratic driving is entirely irrelevant to the analysis of determining whether a Belton search was proper in this case. This is because the threat to officer safety from issuing a traffic citation is “a good deal less than in the case of a custodial arrest.” Knowles, 525 U.S. at 117, 142 L. Ed. 2d at 498, 119 S. Ct. at 487. Here, as in Bosnak, it was the grounds for custodial arrest coupled with the recent occupation of a vehicle that authorized the search, not an observation of erratic driving.
Second, I find puzzling the majority’s attempt to distinguish Bosnak on the basis that here “in contrast to Bosnak” (203 Ill. 2d at 41) there was no evidence of a confrontation before defendant exited the vehicle or that he exited to avoid an encounter with the officer. The majority ignores that the appellate court in Bosnak specifically credited the defendant’s testimony that the “defendant did not see the officer’s emergency lights and that the officer did not make initial contact with defendant until defendant had parked his car and walked 10 yards from it.” Bosnak, 262 Ill. App. 3d at 127. I fail to understand how the majority can assert a contrast with Bosnak that supports its position where Bosnak was not confronted until after he exited his vehicle. Moreover, as previously noted, Bosnak expressly rejected a requirement of initial contact or a consideration of a defendant’s subjective state of mind. Bosnak, 262 Ill. App. 3d at 129. At any rate, I would submit that there is more evidence in the present case than in Bosnak to indicate that defendant was confronted before he exited the vehicle or that he quickly exited to avoid an encounter with police.
Finally, the majority concludes its analysis with the unsupportable allegation that Officer Richardson created a pretext to conduct the warrantless search of defendant’s car by using information that defendant delivered pizza in his vehicle. Remarkably, the majority attempts to support this assertion with a citation to Arango, 879 F.2d at 1506.
I do not believe that there is any support in the record for the notion that the arresting officer orchestrated events to conduct a warrantless search of defendant’s car. Officer Richardson testified that he first became aware that there was an outstanding warrant for defendant’s arrest at 8 p.m. on the date in question via a police computer dispatch. Defendant’s arrest occurred 25 minutes later at 8:25 p.m. The officer noted that the dispatcher informed him that the warrant was issued for defendant’s failure to appear in court. The dispatcher also advised the officer of the make and license plate number of defendant’s vehicle and that he delivered pizza for Genoa Pizza. After receiving this communication, the officer proceeded immediately to Genoa Pizza, parking his squad car across the street. When the officer saw defendant’s vehicle pull into the parking lot, the officer immediately pulled in behind it to block it from leaving. The officer and defendant exited their vehicles at the same time, and defendant was just 7 to 10 feet from the vehicle when the officer was able to contact him. After confirming defendant’s identity, the" officer placed defendant under arrest.
Based on these facts, I am at a loss to see how the majority can conclude that the “overriding concern *** here is that ‘police may create a pretext to conduct a warrantless search.’ ” 203 Ill. 2d at 41, quoting Bosnak, 324 Ill. App. 3d at 62. Instead, I can only conclude from these facts that defendant was arrested at the very first opportunity at a time when he was a recent occupant of a vehicle within the meaning of Belton.
Arango’s caution against situations where police artificially create a situation to fit within the exception to the warrant requirement (Arango, 879 F.2d at 1506) has no application here, and the majority’s reliance on that case is misplaced. As previously discussed, Arango involved a defendant who was arrested one block from his vehicle and then transported back to the area of the vehicle where a Belton search of the vehicle was properly conducted. Arango, 879 F.2d at 1506. The quotation from Arango, which the majority appropriates, was made in the context of cautioning against giving “ ‘arresting officers unlimited discretion to search any vehicle, by merely transporting the arrestee to the vehicle’s location.’ ” Arango, 879 F.2d at 1506. I agree that the majority’s concern about a pretextual search would be valid if Officer Richardson had suddenly arrived at Genoa Pizza while defendant was making pizzas, and then arrested him and transported him to the parking lot next to his vehicle in an attempt to support a search. Those of course are not the facts of this case.
In sum, I would uphold the validity of the search under the bright-line rule in Belton, authorizing the search of a vehicle incident to an arrest of its recent occupant. The cases relied upon by the majority for its rule requiring police-initiated contact with a suspect before he exits the vehicle are not well-reasoned and ignore officer-safety concerns. Instead, I would adopt the view of the Seventh Circuit in Arango and of our appellate court in Bosnak, which simply allows for a Belton search incident to arrest if the arrestee was a recent occupant of a vehicle arrested in close proximity to it. Additionally, I would find that even under the majority’s new rule, the search was proper because the circumstantial evidence indicated that defendant was aware of the police presence before he exited the vehicle. Accordingly, I respectfully dissent.