State v. White

*562FORSBERG, Judge

(dissenting).

I respectfully dissent. Not only was it reasonable for the officer to make a cursory search of the car for identification, it was also justified as a search incident to arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981) (when police have arrested the occupant of an automobile, they may contemporaneously search the passenger compartment of the car). The majority erroneously narrows this authority by means of language from Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969). However, Belton establishes a “bright-line” rule. See 3 W. LaFave, Search and Seizure § 7.1(c) at 12-21 (2nd ed. 1987). This court cannot re-draw that line by a retrospective analysis of the need for or the scope of the search incident to arrest. See State v. Rodewald, 376 N.W.2d 416, 419 (Minn.1985) (retrospective analysis of need was inappropriate where “bright-line" rule permitted the search incident to arrest).

The majority reasons that the car could not be searched because White was then seated in the back seat of the squad car. However, it was just such ease-by-case analysis under the Chimel “immediate control” test that the Supreme Court rejected in Belton. As Professor LaFave states, citing Justice Brennan’s dissent in Belton, “a search of the vehicle is allowed even after the defendant was removed from the vehicle, handcuffed, and placed in the squad car.” 3 LaFave, Search and Seizure § 7.1(c) at 15 (2nd ed. 1987). To reject the search is particularly inappropriate in this case, because White subsequently bolted from the squad car and would have had access to any weapons or evidence remaining in his vehicle.

I acknowledge that White had not formally been placed under arrest when the search occurred. However, as the majority concedes, Officer Spector had probable cause to arrest White for driving without a license and giving false information to a police officer. This was not at that point an ordinary traffic stop, and White, who had been extensively questioned and placed in the back seat of the squad car, was functionally under arrest. Cf. State v. Herem, 384 N.W.2d 880, 884 (Minn.1986) (ordinary traffic stop is not the functional equivalent of arrest). The subjective intentions of Officer Spector are not relevant to whether an arrest occurred. See id. at 883-84; cf. State v. Moffat, 450 N.W.2d 116, 120 (Minn.1990) (men detained in squad car were told they were not under arrest). Moreover, even if an arrest for the non-cocaine offenses would only have occurred later, the search incident was still valid. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980). The officer did not use the search to acquire probable cause for those offenses; therefore, Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990) does not apply.

The majority focuses on the fact that White was after the search formally arrested only for the cocaine offense. However, it is irrelevant that the search produced a more pressing reason for arrest. Cf. State v. Robinson, 371 N.W.2d 624, 626 (Minn.App.1985) (“all persons” search could not be upheld as incident to arrest where no patrons were charged). The original grounds for arrest on the non-cocaine offenses remained, although it would have been a formality for the officer to cite them at the scene. This is not a case in which the fruits of the search are used to justify the search itself.

The majority finds in a search for identification no well-recognized exception to the warrant requirement. However, the permissibility of limited intrusions during a Terry stop is well-recognized. See e.g. Wold v. State, 430 N.W.2d 171, 174-75 (Minn.1988). A limited search for identification, as discussed in State v. Flynn, 92 Wis.2d at 444-48, 285 N.W.2d at 718-19, is a limited intrusion to be justified under the Terry standard of articulable suspicion, which requires no separate exception to the warrant requirement.

Finally, I believe the cocaine inevitably would have been discovered in the course of an inventory search of the car, and that it is unnecessary to remand on this issue. *563The “inevitable discovery” doctrine necessarily involves reasoning from hypothetical facts. See State v. Doughty, 456 N.W.2d 445, 449 (Minn.App.1990), pet. for rev. granted (Minn. July 31, 1990). Because the officer had a legal duty to prevent White from driving the car without a license, and to properly secure the vehicle, this court can conclude, without further factfinding by the trial court, that the cocaine inevitably would have been discovered in the course of an inventory search.