The State of Arkansas brings this interlocutory appeal of the trial court’s grant of appellee Hezile Earl, Jr.’s motion to suppress evidence seized during the warrant-less search of the cab of his truck after his having been stopped for a routine traffic violation. The State’s arguments for reversal challenge the trial court’s ruling as a matter of law because it failed to find that the warrantless search of Earl’s truck was proper since the search met an exception to the warrant requirement. Because the questions presented by the State necessarily turn on the interpretation and application of our criminal rules, particularly Ark. R. Crim. P. 5.5, we conclude that we have jurisdiction to hear the instant appeal, as our holding in this case will establish important precedent and is necessary for the correct and uniform administration of justice. Ark. R. App. P.—Crim. 3(c); see State v. Gray, 330 Ark. 364, 954 S.W.2d 502 (1997).
The State charged Earl by felony information with possession of a controlled substance with intent to deliver. Earl responded by filing motions to suppress the cocaine seized from the prescription bottle found in the cab of his truck. The trial court heard Earl’s motion on July 21, 1997.
The State’s only witness as to the events which transpired on the morning in question was Officer Ralston of the Des Arc Police Department. He testified to the following. At approximately 3:00 a.m. on August 16, 1996, he observed Earl’s truck run a stop sign. When the truck passed the officer, he recognized Earl as someone he had stopped on two prior occasions. Officer Ralston turned on his headlights and proceeded to stop the truck for the violation. Earl pulled over, immediately exited his vehicle, and walked towards the patrol car. After radioing for backup, Ralston departed his vehicle and met Earl. Ralston said that Earl was “mouthy,” wanted to know why he had been stopped, and took an offensive posture. According to the officer, Earl was also belligerent and acting nervous.
Officer Ralston testified that he asked Earl to provide his license, registration, and proof of insurance, but Earl ignored him. Ralston related that he became concerned for his safety because he was alone. He said he was concerned, too, because Earl had filed a federal lawsuit alleging harassment against the city and the police department. Officer Ralston stated that he instructed Earl to stand at the back of his truck, which after some discussion, Earl did. Although Ralston did not pat down Earl for possible weapons, Ralston proceeded to search for weapons that might be located in the truck. Ralston testified that he spotted a prescription bottle in an open caddy in the cab. He picked up the amber-colored bot-tie, took it outside of the cab, and shined his flashlight into it. Seeing a suspicious substance, Ralston opened the bottle; the substance ultimately was identified as crack cocaine. Ralston testified that he then placed Earl under arrest for possession of a controlled substance, handcuffed him, and afterwards, patted Earl down for weapons. Ralston stated his backup officers arrived after he had handcuffed Earl.
At the conclusion of the above testimony, the trial court ruled that the evidence seized by Officer Ralston should be suppressed. In so deciding, the court stated that, while it acknowledged that Earl was not the easiest person to deal with, because it was a traffic stop, “[T]he officer went beyond his authority once he opened the truck door . . . .” Earl then moved for a dismissal of the charges based on the lack of evidence. The trial court granted Earl’s dismissal motion, and the State appeals the trial court’s rulings.
The State argues first that the evidence found in Earl’s truck was the result of a legal warrantless search under Ark. R. Crim. P. 5.5. Alternatively, the State contends that the search was permissible under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny. Because we find the State’s first argument persuasive, we reverse the trial court’s grant of Earl’s motion to suppress, and we remand for trial.
Arkansas Rule of Criminal Procedure 5.5 (1997) provides:
The issuance of a citation in lieu of arrest or continued custody does not affect the authority of a law enforcement officer to conduct an otherwise lawful search or any other investigative procedure incident to an arrest.
(Emphasis added.) The plain language of Rule 5.5 permits a police officer to conduct a lawful search where the officer could either arrest an individual or detain him for further investigation. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806 (1996) (citing Delaware v. Prouse, 440 U.S. 648, 659 (1979)). Ark. R. Crim. P. 4.1 gives officers the authority to arrest without a warrant. Under Rule 4.1, a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed any violation of law in the officer’s presence. Ark. R. Crim. P. 4.1 (a)(iii) (1997). (Emphasis added.) In essence, Rule 4.1 tracks the holdings of Prouse and Whren, recognizing that officers have probable cause to stop and arrest in such situations. Therefore, construing the authority conveyed in Rule 4.1 in conjunction with the discretionary power to search in Rule 5.5, we hold that where an officer has the probable cause to arrest pursuant to Rule 4.1, he may validly conduct a search incident to arrest of either the person or the area within his immediate control under Rule 5.5. See U.S. v. Robinson, 414 U.S. 218 (1973). The officer’s actions need no other justification. Id.; accord State v. Knowles, 569 N.W.2d 601 (Iowa 1997), cert. granted, 118 S.Ct. 1298 (1998) (interpreting Iowa Code section 805.1(4) as providing authority to search when a traffic violation has occurred that would constitute grounds for an arrest).
Here, Officer Ralston indisputably observed Earl’s truck run a stop sign. Thus, Ralston was authorized to arrest Earl at the moment he stopped Earl’s truck, regardless of the fact that this was only a minor traffic violation. Since Ralston had the power to arrest Earl, pursuant to Rules 4.1 and 5.5, Ralston could lawfully conduct a search incident to an arrest, and he did. Simply because a police officer’s decision is to issue a citation in lieu of a custodial arrest, that does not affect the officer’s right to conduct a search of the same scope as a search incident to arrest, as a citation is equivalent to a custodial arrest for authority to search purposes under Ark. R. Crim. P. 5.5.
The dissent contends that in order for the search of Earl’s truck to be valid, Earl must have been arrested prior to the search. The dissent is mistaken. This court, as well as the Supreme Court, has held that a search is valid as incident to a lawful arrest even if it is conducted before the arrest, provided that the arrest and search are substantially contemporaneous and that there was a probable cause to arrest prior to the search. Rawlings v. Kentucky, 448 U.S. 98, 111 (1980); Brunson v. State, 327 Ark. 576-A, 940 S.W.2d 440 (1997).1 (Emphasis added.) Officer Ralston clearly had probable cause to place Earl under arrest prior to the search, since Earl committed a traffic violation in the officer’s presence. Furthermore, Earl’s formal arrest quickly followed on the heels of the challenged search of Earl’s automobile. Just like the Supreme Court concluded in Rawlings, we do not believe it particularly important either that the search preceded the arrest rather than vice versa. Rawlings, 448 U.S. at 111.
Further support for our holding is found in Robinson, supra, which is another traffic-offense case. There, the Supreme Court adopted a categorical rule that when a valid custodial arrest occurs, a search incident to arrest is automatically permissible. The fact of the arrest establishes the authority to search. Id. at 235. Similarly, in Gustafson v. Florida, 414 U.S. 260, 266 (1973), the Court held a search incident to arrest may be conducted even when the custodial arrest is for driving without a driver’s license, a minor traffic violation. It is well to note that the Supreme Court in Robinson recognized that there is a distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons under Terry. As the court explained, by quoting language from Terry, “The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, is also justified on other grounds, and can therefore involve a relatively extensive exploration of the person.” Robinson, 414 U.S. at 227 (citation omitted). A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Id. at 227-228. As is clear from the Court’s statements, a more intrusive search is permissible under the search incident to arrest exception as compared to the Terry exception to the warrant requirement.
Though not challenged in this case, it might be said that Officer Ralston’s search was permissible up to the point of opening the closed prescription bottle. However, the Supreme Court decided this issue in New York v. Belton, 453 U.S. 454, 460 (1981), where it held that an officer making a lawful custodial arrest of an occupant of a vehicle may, as a contemporaneous incident of that arrest, search the passenger compartment of the vehicle, including the contents of any containers found within the passenger compartment. The Court reasoned that “if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” Id.
In conclusion, Officer Ralston, under our rules of criminal procedure 5.5 and 4.1, was legally permitted to arrest Earl for the traffic violation. The ability to issue a citation in lieu of arrest gave Ralston the additional authority to do a full search incident to an arrest. Under New York v. Belton, supra, Ralston had the power to search the contents of the prescription bottle in which he found the cocaine. The trial court improperly concluded that because it was a mere traffic stop, the police officer had no authority to search Earl’s truck, which as we have just explained, was entirely permissible under Rules 4.1 and 5.5. Hence, the trial court erred in granting Earl’s motion to suppress. Having determined the search to be valid, we need not address the State’s alternative argument.
We are aware that the American Bar Association has recommended that Rule 5.5 and similar rules employed in other jurisdictions not be used due to questions pertaining to its constitutional validity. However, Rule 5.5’s constitutionality is not before us.2 Thus, any comment by this court would be advisory in nature and inappropriate.
Reversed and remanded.
Corbin, J., concurs; Newbern, Brown, and Imber, JJ., dissent.The dissent does cite to Brunson v. State, but only for the proposition that the safety of police officers while conducting traffic stops is a paramount consideration that this court has recognized.
We note that, while the state constitutional issue has not been raised in this case, we are aware that some courts, as a matter of state law, have declined to permit searches in as broad a set of circumstances as Belton would authorize. See State v. Hernandez, 410 So.2d 1381 (La. 1982); Commonwealth v. Toole, 389 Mass. 159, 44 N.E.2d 1264 (1983); State v. Pierce, 136 N.J. 184, 642 A.2d 947 (1994); People v. Blasich, 73 N.Y.2d 673, 543 N.Y.S.2d 40, 546 N.E.2d 40 (1989); State v. Brown, 63 Ohio St.3d 349, 588 N.E.2d 113 (1992); State v. Kirsch, 69 Or. App. 418, 686 P.2d 446 (1984); State v. Ringer, 100 Wash.2d 686, 674 P.2d 1240 (1983); see also Lafave, Search And Seizure, § 7.1(a) (3rd Ed. 1996). Unlike the foregoing jurisdictions, Belton has been consistently followed in our decisions. E.g., Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995); State v. Resinger, 297 Ark. 405, 762 S.W.2d 787 (1989); Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).