State v. Bauder

State v. Bauder (2004-438)

2007 VT 16

[Filed 16-mar-2007]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

2007 VT 16

No. 2004-438

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

Brian E. Bauder April Term, 2005

Howard Van Benthuysen, J.

Robert Simpson, Chittenden County State's Attorney, and Colin McNeil,
Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Henry Hinton, Appellate Defender, and
Stephanie Pessin, Law Clerk (On the Brief), Montpelier, for
Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and
Allen, C.J. (Ret.), Specially Assigned

¶ 1. JOHNSON, J. The question presented in this case is whether
law-enforcement officers may routinely search a motor vehicle without a
warrant, after its occupant has been arrested, handcuffed, and secured in
the back seat of a police cruiser, absent a reasonable need to protect the
officers' safety or preserve evidence of a crime. We hold that such
warrantless searches offend the core values underlying the right to be free
from unreasonable searches and seizures embodied in Chapter I, Article 11
of the Vermont Constitution. Accordingly, the trial court judgment to the
contrary is reversed.

¶ 2. During the early morning hours of September 23, 2003, South
Burlington police officer David Solomon observed a vehicle on Shelburne
Road that appeared to be traveling at a speed of forty-five to fifty miles
per hour in a thirty-five mile-per-hour zone. The officer followed the
vehicle, which weaved several times and continued to travel in excess of
the speed limit. Based on these observations, the officer activated his
blue lights. The vehicle, in response, pulled into the lot of a service
station on Shelburne Road.

¶ 3. While speaking with the driver, later identified as defendant,
the officer detected a faint odor of intoxicants and observed defendant's
eyes to be watery and bloodshot. At the officer's request, defendant
exited the vehicle and performed a number of field sobriety tests. Based
on his further observations, the officer arrested defendant for driving
under the influence (DUI), handcuffed him, and placed him in the rear of
his police cruiser. A woman passenger in the vehicle was identified,
released, and left the scene. Defendant produced an unsigned bill of sale
that purported to vest title to the vehicle in himself, but a check of the
vehicle registration failed to identify defendant as the vehicle's owner.
A further records check disclosed that defendant's Texas driver's license
was suspended.

¶ 4. After defendant was arrested and placed in the police cruiser,
Officer Solomon and another officer who had arrived as backup searched
defendant's car. Officer Solomon later testified that he routinely
searches the vehicles of drivers arrested for DUI under the
"incident-to-arrest" doctrine, confining his search to what he described as
the "lungeable" area of the vehicle, i.e., the area that the driver or
passengers could potentially reach. The officer acknowledged, however,
that he did not feel in any danger from defendant, who was handcuffed and
seated in the back of the police cruiser at the time of the search. Nor
did the officer harbor any concern that evidence in the vehicle might be
removed or destroyed.

¶ 5. In their initial search of the vehicle, the officers discovered
the head of a parking meter behind the driver's seat, a pipe with burnt
residue in an open compartment attached to the driver's door, and an empty
beer can and a glass jar containing fragments of a green leafy substance
under the driver's seat. The officers opened the jar and smelled the
contents, confirming their suspicion that it had contained marijuana.
Officer Solomon also detected a very faint odor of marijuana in the
vehicle, although he acknowledged in his affidavit that the odor was not
consistent with having been freshly smoked.

¶ 6. Having previously concluded that they would not permit the
vehicle to be driven from the scene absent proof of ownership and
insurance, the officers further determined-based on their initial search-to
impound the car, tow it to the police station, and apply for a search
warrant. A warrant was granted, and the subsequent search of a backpack on
the back seat of the vehicle uncovered a clear plastic bag containing a
white powdery substance, later determined to be 7.2 grams of the drug
ecstasy. (FN1)

¶ 7. Defendant was charged with possession of marijuana, possession
of ecstasy, and possession of stolen property. He moved to suppress all of
the evidence on the ground that it had been discovered pursuant to an
illegal search incident to arrest. In his memorandum in support of the
motion, defendant urged rejection of the federal Fourth Amendment standard
set forth in New York v. Belton, 453 U.S. 454 (1981), which automatically
permits the warrantless search of a motor vehicle following the arrest of
its operator under the search-incident-to-arrest doctrine. Defendant argued
for a more protective standard under Chapter I, Article 11 of the Vermont
Constitution, to require a showing by the government that exigent
circumstances justified the warrantless search to secure the officers'
safety or preserve evidence of a crime. (FN2)

¶ 8. Following a hearing in which Officer Solomon testified to the
circumstances of the stop and search, the court issued a written decision
denying the motion to suppress. The court found that the warrantless
search comported with both state and federal law as a search incident to
arrest. Defendant later entered a conditional plea of guilty to one count
of possession of ecstasy, and received a suspended sentence of two to five
years and an order of restitution, all stayed pending the outcome of this
appeal.

¶ 9. A motion to suppress evidence presents a mixed question of fact
and law. While we uphold the trial court's factual findings absent clear
error, we review the trial court's conclusions of law de novo. State v.
Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280.

¶ 10. As noted, this appeal presents a fundamental question
concerning the extent to which Article 11 authorizes a search incident to
arrest following a motorist's arrest for DUI. In addressing this issue, we
do not write on a clean slate. While we have recognized that the Fourth
Amendment and Article 11 both seek to protect our " 'freedom from
unreasonable government intrusions into . . . legitimate expectations of
privacy,' " State v. Kirchoff, 156 Vt. 1, 6, 587 A.2d 988, 992 (1991)
(quoting Oliver v. United States, 466 U.S. 170, 187 (1984) (Marshall, J.,
dissenting)), we have also long held that our traditional Vermont values of
privacy and individual freedom-embodied in Article 11-may require greater
protection than that afforded by the federal Constitution. See State v.
Rheaume, 2005 VT 106, ¶ 8 n.*, 179 Vt. 39, 889 A.2d 711 (recalling the
extensive case law holding that Article 11 "affords greater privacy rights
than its federal counterpart in many circumstances"). Recently, for
example, we held that law-enforcement officers must have a reasonable basis
to believe that their safety is at risk or a crime requires investigation
to order a driver stopped for a motor vehicle violation out of his or her
vehicle. State v. Sprague, 2003 VT 20, ¶ 16, 175 Vt. 123, 824 A.2d 539.
Although the United States Supreme Court has ruled-to the contrary-that the
Fourth Amendment permits routine exit orders in such circumstances,
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), we concluded in Sprague
that "a rule requiring a minimal level of objective justification . . .
strikes the proper balance between the need to ensure the officer's safety
and the constitutional imperative of requiring individualized, accountable
decisionmaking for every governmental intrusion upon personal liberties."
Sprague, 2003 VT 20, ¶ 16.

¶ 11. Sprague is especially instructive for our purposes here
because it illustrates the principles that this Court applies in weighing
the competing interests of individual freedom and effective law enforcement
that invariably underlie Article 11 cases. In Mimms the Supreme Court
embraced a "bright-line" rule for officers to follow by allowing them to
order drivers out of their vehicles without any particularized suspicion or
safety concern. In Sprague, however, we rejected administrative simplicity
as an adequate basis for a seizure when weighed against the individual's
right to be free from arbitrary police intrusions. "Dispensing entirely
with the requirement that an officer provide some reasoned explanation for
an exit order," we observed, "invites arbitrary, if not discriminatory,
enforcement." Id. ¶ 19. Hence, we required an individualized showing of
some "objective circumstance" that would cause a reasonable officer to
believe the order was necessary to protect the officer's safety or to
investigate a suspected crime. Id. ¶ 20.

¶ 12. Although the specific holding in Sprague was new, its basic
reasoning was consistent with many of our earlier decisions. A similar
balance was struck, for example, in Kirchoff, where we rejected a Supreme
Court ruling that privacy in land may not extend beyond the immediate area
surrounding the home, observing that "[t]his per se approach cannot be
squared with Article 11." 156 Vt. at 8, 587 A.2d at 993. State v. Savva
similarly stands for the principled rejection of "bright-line" rules or
administrative efficiency as adequate grounds for dispensing with the
constitutionally based warrant requirement. 159 Vt. 75, 616 A.2d 774
(1992). Confronted, as in Kirchoff, with several longstanding Supreme Court
precedents-in this case granting police authority to automatically search
closed containers within a vehicle-we nevertheless rejected the high
court's "bright line tests . . . because these tests fail to do justice
to the values underlying Article 11." Savva, 159 Vt. at 87, 616 A.2d at
781 (quotation omitted).

¶ 13. The values illustrated by these and many other decisions of
this Court rest-at their core-on the fundamental principle of limited
government. Article 11's warrant requirement represents one of the
essential checks on unrestrained government determined by the framers-and
confirmed through hard experience-to be necessary to the preservation of
individual freedom. The warrant requirement serves as a check on the
executive power by guaranteeing review by a neutral and detached magistrate
before a search is carried out, thereby deterring "searches on doubtful
grounds" and assuring the people of "an impartial objective assessment"
prior to a governmental invasion. Id. at 86-87, 616 A.2d at 780; see also
State v. Geraw, 173 Vt. 350, 352, 795 A.2d 1219, 1221 (2002) (observing
that the warrant requirement "reflects a deeply rooted historical judgment
that the decision to invade . . . privacy . . . should normally be made by
a neutral magistrate, not by the agent of the search itself"). (FN3)

¶ 14. Searches outside the normal judicial process are, therefore,
presumptively unconstitutional, and permissible only pursuant to a few
narrowly drawn and well-delineated exceptions. Savva, 159 Vt. at 86, 616
A.2d at 780; State v. Meunier, 137 Vt. 586, 588, 409 A.2d 583, 584 (1979).
Such rare exceptions are allowed "only in those extraordinary circumstances
which make the warrant and probable-cause requirement impracticable."
State v. Petrucelli, 170 Vt. 51, 62, 743 A.2d 1062, 1070 (1999) (quotation
omitted). As we explained in Petrucelli, "[e]xceptions to the warrant
requirement must be 'factually and narrowly tied to exigent circumstances
and reasonable expectations of privacy.' " Id. (quoting Savva, 159 Vt. at
87, 616 A.2d at 781). (FN4)

¶ 15. One such exception is the search-incident-to-arrest doctrine.
Although its scope has varied over time, the essential elements of the
doctrine were settled by the United States Supreme Court in the landmark
case of Chimel v. California, 395 U.S. 752 (1969). Reconciling years of
debate, the high court held that, when a suspect has been lawfully
arrested, the police may conduct a warrantless search of the person
arrested for "any weapons that the latter might seek to use" to resist
arrest or facilitate an escape, and "any evidence on the arrestee's person
in order to prevent its concealment or destruction." Id. at 762. In a
famous subsequent passage, the Court observed further that "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." Id.

¶ 16. This so-called "grab rule" defined and limited the doctrine
for more than a decade, and was routinely applied in every state including
Vermont. See, e.g., Meunier, 137 Vt. at 588, 409 A.2d at 584 (citing
Chimel for the principle that a search incident to arrest must be
"reasonable in time and scope"); State v. Mayer, 129 Vt. 564, 567, 283 A.2d
863, 865 (1971) (citing Chimel to uphold a warrantless "protective search"
of defendant for weapons at the time of his arrest); see generally 3 W.
LaFave, Search and Seizure § 7.1, at 502-14 (4th ed. 2004) (reviewing
history and development of search-incident-to-arrest doctrine). In Belton,
453 U.S. at 460, however, the Supreme Court revisited the doctrine in the
context of a motor-vehicle search, explaining that police officers remained
uncertain after Chimel about the precise scope of their authority and
required a more "workable rule." To provide such a bright-line rule, the
Court held that when police officers have arrested the occupant of a
vehicle, they may routinely search its passenger compartment and the
contents of any containers found therein as a "contemporaneous incident of
that arrest." Id. at 460-61. More recently, in Thornton v. United States,
541 U.S. 615, 623-24 (2004), the Supreme Court reaffirmed the rule
announced in Belton, holding that it applied even where the driver had
been arrested, handcuffed, and secured in the back seat of a police
cruiser.

¶ 17. Belton was the subject of sharp criticism when it was
decided, and it has remained controversial ever since. Justice Brennan,
writing in dissent, observed that the rule was "analytically unsound and
inconsistent with every significant search-incident-to-arrest case" with
similar facts in the Court's recent history. 453 U.S. at 468. The Court
had always required that exceptions to the warrant clause be firmly
grounded in, and narrowly tailored to, the extraordinary circumstances
justifying the exception. Plainly, however, an arrestee who has been
secured away from the vehicle is in no position to seize a weapon or
evidence from its interior. See id. at 465-66 (Brennan, J., dissenting )
("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."). Nor, as Justice
Brennan observed, had the Court ever held that mere administrative
simplicity was a sufficient basis for a warrant exception. See id. at 469
("[T]he mere fact that law enforcement may be made more efficient can never
by itself justify disregard of the Fourth Amendment."(quotation omitted)).
Furthermore, as Justice Brennan noted, the need for so-called "bright
lines" was simply unsupported; the search-incident-to-arrest doctrine under
Chimel placed no greater demands on law enforcement officers than other
Fourth Amendment rules requiring the exercise of considered police judgment
in light of the facts and circumstances, as when deciding whether
reasonable suspicion justifies an investigatory stop and frisk, or whether
probable cause supports a warrantless arrest. Id. at 471 ("The standard
announced in Chimel is not nearly as difficult to apply as the Court
suggests."). Indeed, Justice Brennan observed, the bright-line rule forged
by the Belton majority was not even likely to eliminate the continued need
for the exercise of police judgment in determining, for example, the exact
nature of a "contemporaneous" search incident to arrest. Id. at 470
("Would a warrantless search incident to arrest be valid if conducted five
minutes after the suspect left his car? Thirty minutes? Three hours?").

¶ 18. The concerns identified in the Belton dissent have continued
to gather support from courts and commentators alike. Professor LaFave
and others have questioned the warrantless search rationale based on either
safety or simplicity, particularly as studies have shown that the police
almost invariably handcuff and remove arrested drivers from the area of the
vehicle. See 3 LaFave, supra, § 7.1(c), at 525; see also M. Moskowitz, A
Rule in Search of a Reason: An Empirical Reexamination of Chimel and
Belton, 2002 Wis. L. Rev. 657, 697 (suggesting that auto searches following
arrest should require a showing of "particular and unusual facts" that
hinder the police from their usual procedure of "restraining and removing
the suspect from any area that might contain a weapon or evidence"); A.
Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev.
227, 274 (1984) ("[I]f any bright line rule had been necessary to resolve
issues in Belton, it would have been the opposite of the rule that the
Court announced."); E. Shapiro, New York v. Belton and State Constitutional
Doctrine, 105 W. Va. L. Rev. 131, 137 (2002) (noting that "[c]riticism of
Belton has been vigorous and sustained," based principally on the lack of
support for the Court's rationale that "existing law had proven to be so
unworkable that it was necessary to forego Chimel's approach in favor of a
bright-line rule").

¶ 19. In addition, while a majority of states continue to apply the
rule in Belton, a number have either rejected or modified it under their
state constitutions. See Shapiro, supra, 105 W. Va. L. Rev. at 141-42
(listing and discussing the state decisions that have declined to follow
Belton or have applied a modified federal approach). New Jersey,
Pennsylvania, New Mexico, and Nevada have all unequivocally rejected
Belton under their state constitutions, applying instead the familiar
standard predicated upon a showing of necessity to secure the officer's
safety or preserve evidence. See Camacho v. State, 75 P.3d 370, 373-74
(Nev. 2003) (rejecting Belton and concluding that "under the Nevada
Constitution, there must exist both probable cause and exigent
circumstances for police to conduct a warrantless search of an automobile
incident to a lawful custodial arrest"); State v. Eckel, 888 A.2d 1266,
1276-77 (N.J. 2006) (declining to adopt Belton and holding that under the
New Jersey Constitution the search-incident-to-arrest doctrine applies only
"to ensure police safety or to avoid the destruction of evidence"), cert.
granted, 131 P.3d 660 (N.M. Jan. 10, 2006) (No. 29,584); State v. Pittman,
127 P.3d 1116, ¶ 16 (N.M. Ct. App. 2005) ("Because of New Mexico's strong
preference for a warrant, we hold that even after a valid arrest, one of
Chimel's two rationales must be present before an officer may search a
vehicle without a warrant."); Commonwealth v. White, 669 A.2d 896, 902 (Pa.
1995) (invalidating warrantless vehicle search where the arrestee was a
secure distance from his vehicle, and holding that under the Pennsylvania
Constitution the police may search only "the arrestee's person and the area
in which the person is detained in order to prevent the arrestee from
obtaining weapons or destroying evidence").

¶ 20. In our judgment, these decisions more closely reflect the
principles and values underlying Article 11 as expressed in numerous
opinions of this Court than the "abrupt shift in the standard of fourth
amendment protections" represented by the Belton decision. C. Hancock,
State Court Activism and Searches Incident to Arrest, 68 Va. L. Rev. 1085,
1085 (1982). As earlier explained, we have consistently rejected
bright-line rules-however laudable their purpose in easing the burden on
law-enforcement officers-as an adequate basis for relaxing the fundamental
limitation on governmental power represented by the warrant requirement.
Indeed, we have scrupulously maintained the principle-even, as here, in the
face of contrary United States Supreme Court holdings-that any exception to
the warrant requirement must be factually and narrowly tied to the
exigencies that rendered a warrant application impracticable under the
circumstances. Absent such circumstances, Article 11 simply forbids a
warrantless search. As the New Jersey Supreme Court explained in admirably
clear and unambiguous terms in Eckel, a warrantless automobile search based
"solely on the arrest of a person unable to endanger the police or destroy
evidence cannot be justified under any exception to the warrant requirement
and is unreasonable." 888 A.2d at 1277.

¶ 21. The State here offers no serious argument that the warrantless
search in this case was justified as a search incident to arrest on any
basis other than the blanket authority of Belton. Although our dissenting
colleague claims that the search was somehow necessary to protect the
officer's safety or preserve evidence, no persuasive evidence or argument
is offered to demonstrate how defendant-handcuffed in the backseat of the
police cruiser-or his passenger who had left the scene, presented any form
of threat. The dissent's further assertion that the search here was
actually consistent with pre-Belton decisional law is equally unsound.
One need only read the impassioned Belton dissent to understand how
fundamentally at odds that decision was with prior law. Contrary to the
dissent's additional claim, moreover, it is clear that under Chimel and its
progeny a showing of exigent circumstances in the form of a threat either
to officer safety or to the preservation of evidence is essential to
justify a warrantless vehicle search.

¶ 22. Having rejected Belton in favor of the traditional rule
requiring that officers demonstrate a need to secure their own safety or
preserve evidence of a crime, and finding no evidence of either need in
this case, we are compelled to conclude that the trial court order denying
defendant's motion to suppress must be reversed.

¶ 23. Although, in our view, the reasons that compel rejection of
Belton apply with equal and obvious force to the so-called "Belton
variation" adopted by several states, and although the State has not argued
otherwise, we defer closing this portion of the discussion to consider this
alternative in light of the dissent's strong endorsement of it. As the
dissent notes, several states have allowed the police to conduct
warrantless searches of automobiles after the occupant has been arrested
in order to obtain evidence related to the crime that formed the basis of
the arrest. As the dissent observes, the rationale of these decisions
appears to be that "the arrest itself provides the probable cause basis for
the search." Post, ¶ 90. The dissent would adopt this approach so long
as the search was for "evidence related to the crime" and limited to the
passenger compartment of the vehicle. Post, ¶ 90. (FN5)

¶ 24. The so-called Belton variation endorsed by the dissent is just
that, a variation of Belton. Although the rationale is different-the
arrest purportedly provides the probable cause to search-the reasoning
remains essentially the same, based on a perceived need to authorize
routine warrantless searches absent any particularized showing that the
delay attendant upon obtaining a warrant is impracticable under the
circumstances. As earlier osbserved, however, such an approach is
fundamentally at odds with Article 11, under which warrantless searches are
presumptively unconstitutional absent a showing of specific, exigent
circumstances justifying circumvention of the normal judicial process. As
we explained in State v. Trudeau, "no amount of probable cause can justify
a warrantless search or seizure absent exigent circumstances." 165 Vt. 355,
360, 683 A.2d 725, 729 (1996) (quoting Horton v. California, 496 U.S. 128,
137 n.7 (1990) (quotation omitted)). Surely this principle applies with
equal or greater force where the probable cause is merely presumed from the
fact of an arrest.

¶ 25. Inherent, too, in the Belton variation are a number of
assumptions that simply do not withstand scrutiny. First, as earlier
discussed, support for the assumption that case-by-case evaluations are
unworkable in the context of warrantless vehicle searches is simply
lacking. Second, the assumption that an arrest automatically provides
probable cause for a search is highly questionable. The finding of probable
cause is a decidedly fact-specific determination, turning on whether the
particular circumstances establish a "nexus between the crime, the suspect,
and the place to be searched." State v. Towne, 158 Vt. 607, 616, 615 A.2d
484, 489 (1992). A driver arrested for DUI may have been drinking at home,
at a friend's, in a restaurant or bar, or at a sporting event, but not
necessarily in his or her car. While the facts-e.g., the strong odor of
intoxicants coming from inside the vehicle or an actual admission by the
suspect-might indicate the presence of alcohol in the vehicle, the arrest
itself does not invariably establish the requisite nexus to search.
Nothing about the fact that the search occurs in a vehicle, moreover, would
justify a reduced probable-cause standard. Indeed, while we have
acknowledged that vehicles support a somewhat diminished expectation of
privacy, this is not to say-and we have never held-that they carry no
expectation of privacy, or that an arrest of the driver obviates the need
to establish specific probable cause to search.

¶ 26. The dissent's additional assumption of administrative
simplicity is equally questionable. The dissent would permit searches only
for evidence "related to the crime" for which the suspect was arrested.
Post, ¶ 90. Would this permit a vehicle search following an arrest of the
driver on an outstanding warrant for failure to appear? What if the
underlying charges on the outstanding warrant related to possession of
cocaine? Would an arrest for assaulting an officer during a routine
vehicle stop authorize a search, and if so, for what? Does the nature of
the arrest define the scope of the search, i.e, would an arrest based on
possession of stolen televisions authorize a search under the car seat?
The so-called bright-line rule advocated by the dissent raises as many
questions as it answers. It most assuredly does not, however, commend
itself as superior to the traditional search-incident-to-arrest rule in any
respect.

¶ 27. Finally, in view of the dissent's strenuous claims to the
contrary, we take the opportunity to explain the necessity of today's
holding. Our dissenting colleague proffers essentially three separate
doctrinal exceptions to the warrant requirement as more suitable
"independent grounds" of decision. Post, ¶ 40. It is, of course, a
fundamental tenet of judicial restraint that courts will not address
constitutional claims-least of all novel or unresolved constitutional
claims-when adequate lesser grounds are available. See In re Sealed
Documents, 172 Vt. 152, 156, 772 A.2d 518, 523 (2001) (noting "[o]ur
tradition of addressing issues of constitutional significance only when the
matter is squarely and necessarily presented").

¶ 28. First, it is asserted that the parking-meter head discovered
behind the driver's seat was "in plain view" and therefore-as patent
contraband-provided an independent basis to search the car under the
well-settled plain-view exception to the warrant requirement. Post, ¶¶
42-51. The claim is predicated upon the investigating officer's
statement, in response to a question from the trial court, that the parking
meter was visible from outside the vehicle. As noted, however, the search
here did not proceed from a plain-view observation of the parking meter.
Indeed, the officer repeatedly acknowledged that he did not see the parking
meter during his initial contact with defendant outside the vehicle; he
became aware of its existence only during the more probing search inside
the car. The trial court addressed this seeming anomaly by finding
unequivocally that the officer discovered the parking meter during the
search incident to arrest, while noting that it "was arguably exposed to
plain view." (FN6)

¶ 29. Thus, the facts underlying the dissent's proposed plain-view
analysis may be characterized, at best, as uncertain. The legal basis,
however, can only be described as dubious. The dissent relies on a single
statement in Trudeau, 165 Vt. at 358, 683 A.2d at 727, quoting Horton v.
California, 496 U.S. at 136, to the effect that an "essential predicate"
underlying the plain-view doctrine is that "the officer did not violate the
Fourth Amendment in arriving at the place from which the evidence could be
plainly viewed." (Emphasis added.) Nothing in either decision, however,
remotely suggests that the underscored language was intended by this Court
or the United States Supreme Court to establish a constructive plain-view
standard, to be satisfied whenever an officer asserts in hindsight that the
evidence could have been plainly viewed, although in fact it was not. On
the contrary, in both cases, as indeed in virtually every case dealing with
the doctrine that we have uncovered, the plain-view exception was based on
the officer's actual observation of the evidence in question.

¶ 30. This is hardly surprising, as it is the police officer's
perception of the object which establishes, in each case, its "plain-view"
status. As the high court explained in Texas v. Brown, the plain-view
doctrine is predicated on two principles: first, "that when an officer has
observed an object in plain view" from a legal vantage point the owner's
privacy interests are forfeited; and second, that requiring a warrant once
the police "have obtained a first-hand perception of [the object] would be
a needless inconvenience" 460 U.S. 730, 739 (1983) (quotation omitted).
Thus, as the Court observed, "our decisions have come to reflect the rule
that if, while lawfully engaged in an activity in a particular place,
police officers perceive a suspicious object, they may seize it
immediately." Id. (emphasis added). This basic rule has been applied in
every case to come before the Court, including those where the objects in
question were observed through aerial surveillance, or with the aid of
illumination. See, e.g., Florida v. Riley, 488 U.S. 445, 448-49 (1989) (
search upheld where police in helicopter were able to observe with the
"naked eye" marijuana growing in greenhouse); California v. Ciraolo, 476
U.S. 202, 213-15 (1986) (police observed marijuana visible to "naked eye"
from aircraft); Brown, 460 U.S. at 739 (use of flashlight to enhance
visibility did not invalidate seizure of drugs observed by officers). To
modify the doctrine by allowing the seizure of objects which the officers
did not observe-as advocated by the dissent-would eviscerate its
fundamental evidentiary and legal grounding.

¶ 31. In essence, therefore, the dissent proposes that we forgo
addressing an issue-the scope of the search-incident-to-arrest doctrine in
the context of a vehicle search-that the police officers here expressly
relied on, that the parties briefed and argued at trial and on appeal, that
formed the core of the trial court's decision, and that-as explained
earlier-has been the subject of extensive discussion and debate among
courts and commentators. Instead, the dissent urges that we address a
novel constitutional issue based on questionable facts and even less legal
support. With respect, we fail to see how this proposed alternative makes
any sense, or serves any sound jurisprudential purpose.

¶ 32. The dissent also claims that defendant's failure to provide a
valid driver's license, registration, or insurance card, coupled with
irregularities in the vehicle's plates and bill of sale, authorized the
police to conduct a warrantless search for proof of ownership. The
argument is unpersuasive. It relies, essentially, on the so-called
"automobile exception" to the warrant requirement, which-as we have
elsewhere explained-requires a showing of both probable cause that the
vehicle contains evidence of a crime, and exigent circumstances suggesting
that the evidence may be lost during the delay attendant upon obtaining a
warrant. See Savva, 159 Vt. at 89-90, 616 A.2d at 782 (holding that
warrantless search of bags found within car "was not supported by exigent
circumstances because a less intrusive option was available" and therefore
must be invalidated); State v. Girouard, 135 Vt. 123, 129, 373 A.2d 836,
840 (1977) (describing the "well-delineated preconditions" to the
automobile exception as "1) probable cause to believe that the vehicle
contains evidence of crime and 2) exigent circumstances").

¶ 33. Neither requirement was satisfied here. Despite the officer's
suspicion that the car might have been stolen, he did not arrest defendant
on that basis and identified no ground, much less probable cause, to
believe that proof of ownership might be discovered behind or underneath
the driver's seat, where the parking meter and glass jar containing
marijuana were found. Even if it were assumed, however-as the dissent
urges-that the inadequate proof of ownership established probable cause to
believe that the car was stolen, the circumstances did not establish that
element of urgency essential to the execution of a warrantless search. The
officer readily acknowledged that he had no concerns about the possibility
of evidence inside the vehicle being removed or destroyed. Indeed, prior
to the search, the officers had not observed any evidence of a crime in the
vehicle, let alone evidence that might conceivably be lost or destroyed.
(FN7)

¶ 34. Furthermore, defendant was under arrest, the car was not on a
public highway but safely parked in a commercial lot, and the police had
determined that it would be grounded, i.e, locked and kept there until they
determined its ownership. Hence, there was no exigency compelling an
immediate search rather than a subsequent warrant application. In Trudeau,
the principal case on which the dissent relies, the police had observed
evidence in plain view within the vehicle that related directly to the
offense for which defendant was arrested. Indeed, we analyzed Trudeau as a
plain-view case, not an automobile-exception case, emphasizing that the
officers violated no privacy rights of the defendant when they observed an
open beer can in plain view on the floor of the defendant's car before
arresting him for DUI. 165 Vt. at 358, 683 A.2d at 727-28. Here, in
contrast, the officers had no indication that defendant's vehicle contained
any contraband or evidence of a crime. Furthermore, the record in Trudeau
revealed the presence of two additional passengers in the vehicle who also
appeared to be intoxicated and who had remained near the vehicle during the
police encounter, although they had not been arrested. This was sufficient
to suggest that they might have had not only the opportunity, but the
incentive, to seek access to the vehicle to remove the evidence the police
had observed therein, and thus established the exigency necessary to forgo
a warrant. Trudeau, 165 Vt. at 357, 361, 683 A.2d at 726, 729. Neither
circumstance was present here. The police had not observed any evidence of
a crime in the vehicle, and there was nothing to indicate that the
passenger, who had been questioned by the police and had departed, would
have any reason to return to the vehicle or ability to remove its contents.
Accordingly, we are not persuaded that the automobile exception provides a
viable basis to uphold the trial court decision. (FN8)

¶ 35. Finally, the dissent proposes in a footnote that the search
here could be validated as an inventory search under the
inevitable-discovery doctrine. Courts have approved inventory searches of
lawfully impounded vehicles to protect the owner's property while in police
custody, see, e.g., Colorado v. Bertine, 479 U.S. 367, 372-73 (1987), and
have upheld the admission of evidence that the police would have
"inevitably discovered" during such a search. United States v. Seals, 987
F.2d 1102, 1107-08 (5th Cir. 1993). The doctrine has no application here
because, prior to the illegal search, the officer testified that they had
determined only to "ground" the vehicle, i.e., to leave it in place in the
private lot where it was parked. The decision to impound the vehicle was
not made until after the warrantless search, and was based on the evidence
obtained during that illegal search. Accordingly, there was no legal basis
to impound the vehicle, and hence no grounds for applying the
inevitable-discovery doctrine.

¶ 36. In closing, we believe that it is essential to be as clear
about what this case concerns as what it does not. Although the dissent
repeatedly and emphatically asserts that our holding somehow removes
important safety protections for law-enforcement officers, it cites not one
shred of evidence in the record nor a single statistic, relevant
public-safety study, or other empirical evidence outside the record to
support the claim. Indeed, as we have explained, the evidence and
authorities demonstrate that, far from removing safety protections, our
holding is entirely consistent with existing, standard police procedures
and removes no essential safeguards. We yield to no one on this Court in
our commitment to the safety of Vermont law-enforcement officers in the
field. Strident assertions, however, are no substitute for proof. In the
absence of a demonstrated need, we are not at liberty to disregard the
fundamental constitutional requirement of a search warrant. By limiting
the exercise of arbitrary governmental power, this constitutional safeguard
protects the police no less than the public. (FN9)

¶ 37. Justice Robert Jackson once observed that "[w]hen the right
of privacy must reasonably yield to the right of search is, as a rule, to
be decided by a judicial officer, not by a policeman or Government
enforcement agent." Johnson v. United States, 333 U.S. 10, 14 (1948). Any
other rule, he explained, "would reduce the [right] to a nullity" and leave
us secure in our homes and persons "only in the discretion of
[law-enforcment] officers." Id. Where, as here, the sole justification
for dispensing with the fundamental safeguard of personal liberty
represented by the warrant requirement is law-enforcement efficiency, we
have consistently ruled in favor of liberty. As our own Justice Larrow
once observed, "[t]his seems a slight price to pay for the fundamental
rights preserved by" the Constitution. State v. Connolly, 133 Vt. 565,
571, 350 A.2d 354, 368 (1975).

Reversed.

FOR THE COURT:

______________________________________
Associate Justice

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Dissenting

¶ 38. DOOLEY, J., dissenting. This has turned into one of the
most important decisions from this Court, in large part because the
majority has decided to render a broad and unnecessary constitutional
ruling. The circumstances presented in this case are, with variations,
played out every day many times throughout the state as law-enforcement
officers interact with drivers who are dangerous to others and may be
dangerous to the officers. Indeed, stopping and approaching a vehicle,
particularly as here in the middle of the night, is one of the most
dangerous activities in which police officers engage. In these
circumstances, the officers must act quickly and decisively and cannot
become constitutional law scholars to determine what actions are
appropriate, particularly to protect their own safety. Such circumstances
led a broad range of commentators to urge the adoption of a bright-line
standard to determine the perimeters of lawful searches following
automobile stops-a bright line that can be easily applied by the officer
and understood by the citizen. In New York v. Belton, 453 U.S. 454 (1981),
the United States Supreme Court responded with a bright-line test. Belton
in turn has led to a large number of state constitutional law decisions
confronting the issues of whether a bright-line test is appropriate and, if
so, where the bright line should be drawn. As a result, there are many
thoughtful alternatives from which to choose.

¶ 39. In my judgment, the Court's decision removes an important
safety protection for officers, while offering little additional privacy to
motorists whose vehicles and vehicle interiors are already on display to
the public. Thus, the decision makes the job of an officer who stops a
vehicle at two o'clock in the morning, as this officer did, more dangerous.
To a large extent, the decision will preclude searches of vehicles made
pursuant to the arrest of the driver or occupant, leaving weapons,
contraband and evidence for which the occupant was arrested inaccessible to
the officer. In general, the majority reaches this result by arguing that
the only law-enforcement interest involved is administrative efficiency,
which must give way to the legitimate privacy interests of citizens. In my
opinion, this analysis trivializes the very important safety and
evidence-gathering interests that are at stake in this decision, while
exaggerating the privacy interests. I cannot subscribe to this result,
especially where the gain in legitimate privacy protection is so limited.

¶ 40. Before addressing the perimeters of the
search-incident-to-arrest exception under Article 11 of the Vermont
Constitution, I emphasize that the majority's broad constitutional holding
is wholly unnecessary because the search of defendant's vehicle in this
case is fully justified under principles this Court has already adopted.
There are two independent grounds under which we should affirm the trial
court's denial of defendant's motion to suppress, and the search is also
justified by pre-Belton jurisprudence from this state and others. First,
undisputed testimony and the court's findings demonstrate that the stolen
parking meter found in the vehicle defendant was operating was in plain
view at the time the police lawfully stopped and approached the vehicle,
and thus the seizure of the parking meter and other evidence plainly
visible in the open passenger compartment of the vehicle was justified
under the plain-view exception to the warrant requirement. Second,
defendant's failure to produce a valid driver's license, a vehicle
registration card, or any proof of insurance, coupled with irregularities
concerning the vehicle's plates and bill of sale, created a reasonable
suspicion that the car had been stolen and authorized the police to conduct
a limited warrantless search of the vehicle to look for proof of ownership.
Third, the search is justifiable even under the search-and-seizure law
existing prior to the Belton bright-line rule.

¶ 41. The majority passes over the first ground and ignores the
second ground in part because it views the facts most favorably to
defendant and ignores the trial court's findings, contrary to our standard
of review. See State v. Simoneau 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d
1280 (stating that motion to suppress involves mixed question of fact and
law, and that reviewing court must accept trial court's findings unless
they are clearly erroneous). The relevant facts are as follows. At two
o'clock in the morning, the arresting officer observed defendant traveling
at an excessive speed and driving erratically. After pulling the vehicle
over, the officer noted that defendant had bloodshot eyes and smelled of
alcohol. Defendant was unable to produce a valid driver's license, car
registration, or proof of insurance, and the bill of sale he produced did
not have a buyer's name on it. Moreover, a computer search revealed that
defendant's Texas driver's license had been suspended, that defendant had a
multi-state arrest record, and that the license plates on the vehicle had
been assigned to a different car. When defendant failed to satisfactorily
perform dexterity tests administered by the officer, he was arrested for
DUI, handcuffed, and placed inside the police cruiser. The passenger in
the car was then allowed to leave the scene, and the officer conducted a
limited search of the vehicle, which revealed a stolen parking meter, an
empty beer can, and drugs. A sample of defendant's breath provided at the
police station revealed a blood-alcohol content of .162, more than double
the legal limit.

¶ 42. With these facts in mind, I first examine the plain-view
exception to the warrant requirement. For that exception to apply, (1) the
officer must have lawfully been in a " 'place from which the evidence could
be plainly viewed;' " (2) the item must be plainly visible and its
incriminating nature must be immediately apparent; and (3) " 'not only must
the officer be lawfully located in a place from which the object can be
plainly seen, but he or she must also have a lawful right of access to the
object itself.' " State v. Trudeau, 165 Vt. 355, 358, 683 A.2d 725, 727
(1996) (quoting Horton v. California, 496 U.S. 128, 136-37 (1990))
(emphasis added).

¶ 43. Here, notwithstanding the majority's suggestion to the
contrary, the evidence was undisputed that the stolen parking meter was in
plain view from outside the vehicle defendant was operating at the time of
the stop. The officer at the scene testified unequivocally on direct
examination that a parking meter was laying uncovered on the floor of the
vehicle behind the driver's seat in plain view from outside the vehicle.
In response to a direct question from the court, the officer again
testified that "the parking meter head was visible from outside the
vehicle." During cross-examination of the officer, defense counsel
questioned whether the parking meter head was actually visible from outside
the car, given that the officer had acknowledged not noticing it until he
opened the car door to search the vehicle. The officer reiterated that the
parking meter head was uncovered and plainly visible from outside the car.
In the end, defendant did not attempt to dispute that fact. The district
court stated in its decision that the seized parking meter was "arguably"
exposed to plain view, and, in response to defendant's motion for
reconsideration, the court elaborated that "the stolen parking meter was
readily visible through the car windows given its size and nature." Thus,
the majority incorrectly states that the record is at best "uncertain" with
respect to whether the parking meter was in plain view.

¶ 44. Nor was there any dispute that the officer had made a lawful
stop and was lawfully positioned outside the vehicle in a location from
which the parking meter was visible. Further, the incriminating nature of
the disconnected parking meter was manifest.

¶ 45. Hence, two issues remain concerning the applicability of the
plain-view exception in this case. The first is whether the officer had to
have actually seen the parking meter while he was in a lawful position, or
whether it was sufficient that the parking meter was in plain view from
where the officer was legally positioned moments earlier, even though he
did not actually notice the parking meter until he commenced the challenged
search by opening the car door. In my view, it is immaterial that the
officer did not happen to notice the plainly visible parking meter before
he began searching the car. The test, as quoted above, is whether the item
" 'could be' " plainly viewed from a lawful location. Trudeau, 165 Vt. at
358, 683 A.2d at 727 (quoting Horton, 496 U.S. at 136). This objective
test is consistent with the general rule that search-and-seizure analysis
is not subjective, and that an inquiry into the reasonableness of
particular police conduct is a purely objective one. See United States v.
Messino, 871 F. Supp. 1035, 1039 (N.D. Ill. 1995) ("[T]he Supreme Court's
rejection of the inadvertency requirement for a plain view seizure in
Horton v. California can be read as a rejection of subjective inquiry as an
element of plain view analysis in general."); see Horton, 496 U.S. at 138
("[E]venhanded law enforcement is best achieved by the application of
objective standards of conduct rather than standards that depend upon the
subjective state of mind of the officer.").

¶ 46. An objective test is also consistent with the theoretical
underpinning of the plain-view exception-that there can be no reasonable
expectation of privacy in items left in plain view of officers lawfully
positioned to see them. In this case, defendant chose to place a stolen
parking meter on the floor of his vehicle in a location that made it
plainly visible from outside the car. Although the officer in this case
did not happen to notice the parking meter until he opened the car door to
commence a search of the vehicle, the parking meter was plainly visible
from the officer's lawful position outside the car, and the officer may
well eventually have seen the parking meter even if he had decided not to
search the vehicle.

¶ 47. The majority cites Texas v. Brown, 460 U.S. 730 (1983), for
the principle that an officer must have actually seen the evidence in plain
view before conducting any search, but Brown did not even address that
issue. Indeed, it was undisputed in Brown that the seized items were in
plain view-the only issue was whether the incriminating nature of those
items was immediately apparent. Id. at 740-41. The majority believes that
we would be eviscerating the "fundamental evidentiary and legal grounding"
of the plain-view rule by allowing the admission of a parking-meter head
that, for example, was tied to a roof-rack in plain view or displayed
prominently on a dashboard but not initially noticed by officers occupied
with other concerns. Yet, as the Court observed in Brown, "[t]here is no
legitimate expectation of privacy shielding that portion of the interior of
an automobile which may be viewed from outside the vehicle by either
inquisitive passersby or diligent police officers." Id. at 740 (citations
omitted). Here, defendant had no legitimate expectation of privacy in the
parking-meter head, given that he chose to leave it in a place that was
plainly observable from outside his vehicle.

¶ 48. The second issue regarding application of the plain-view
exception to this case is whether there were exigent circumstances that
allowed the officer to seize the plainly visible incriminating item.
According to the majority, there were no exigent circumstances because the
passenger had left the scene, the driver had been secured in the patrol
car, the vehicle was to be impounded, and the officer was not concerned
that evidence might be removed from the car. Once again, however, the
majority provides an inaccurate statement of the facts in finding the
absence of exigent circumstances. The majority states that the vehicle was
to be impounded, but fails to indicate when the police decided that they
had grounds to impound the car. The undisputed testimony of the arresting
officer was that the decision to impound the vehicle or to leave it at the
scene safely off of the highway-which the officer called "grounding"-was
based on the results of the initial search of the vehicle and was not made
before the search commenced. (FN10)

¶ 49. In other words, at the time of the initial search, no
determination had been made that defendant's car warranted seizure or,
alternatively, that it would be left at the scene. (FN11) The fact that
the passenger had been released and had left the scene increased the
possibility that she or someone else could return to the car and remove
evidence in the event the car were left at the scene. As the trial court
stated, "the other occupant was not arrested and the true owner's identity
was not known, and therefore the lawful owner might have returned to remove
the vehicle and the contraband in it." Finally, the officer's testimony
that he was not concerned about evidence being removed or destroyed does
not demonstrate the lack of exigent circumstances because it is an
objective view of the circumstances, not the officer's subjective
motivation, that determines whether there was an exigency permitting the
officers to seize incriminating items left in plain view.

¶ 50. In sum, the release of the passenger, the uncertainty over
ownership of the vehicle, and the possibility of the police leaving the car
by the roadside constituted exigent circumstances allowing the officers to
conduct a warrantless seizure of incriminating evidence left in plain view
in the vehicle. On this point, this case should be controlled by State v.
Trudeau, 165 Vt. at 361, 683 A.2d at 729, a factually similar case in which
we found exigent circumstances because defendant's vehicle "would have
remained in a public parking lot, and the two other occupants of the
vehicle, neither of whom were arrested, would have had access to the
vehicle and the evidence contained therein." The majority makes a vain
attempt to distinguish Trudeau, but cannot do so. Here, as in Trudeau,
there was a passenger who could have accessed the vehicle, which may have
been left unattended at the scene of the stop.

¶ 51. Thus, all three elements of the plain-view exception were
satisfied in this case. On these facts, I would affirm the decision not to
suppress the evidence found in the search of the car under Article 11 of
the Vermont Constitution, without reaching the search-incident-to-arrest
issue. (FN12) Cf. State v. Savva, 159 Vt. 75, 88, 616 A.2d 774, 781 (1992)
(recognizing "a separate and higher expectation of privacy for containers
used to transport personal possessions than for objects exposed to plain
view within an automobile's interior").

¶ 52. As a second ground for affirming the denial of defendant's
motion to suppress in this case, I would find that the search was proper
where the circumstances indicated that the vehicle might have been stolen.
One of the leading commentators on the law of search and seizure supports
case law holding that it is reasonable for a police officer to make a
limited warrantless search of a vehicle to determine ownership of the
vehicle or to investigate the possible theft of the vehicle. 3 LaFave,
supra, § 7.4(d)-(e), at 662-66. According to LaFave:

The better view is that if the driver has been given an
opportunity to produce proof of registration but he is unable to
do so, and even if he asserts that there is no such proof inside
the car, the officer is not required to accept such an assertion
at face value, at least when [the suspect's] previous conduct
would . . . cast doubt upon his veracity; at that point, the
officer may look for registration papers on the dashboard, sun
visor and steering column and, if not found in those places or
seen in plain view, in the glove compartment, [and] all places
where it may reasonably be found.

Id. at 663 (internal quotations and citation omitted); accord In re Arturo
D., 38 P.3d 433, 446 (Cal. 2002) (accepting LaFave reasoning and finding
officer justified in conducting warrantless search of passenger
compartment, including under seats, for evidence of vehicle's ownership).
LaFave describes as "sound" the basic principle that if an officer has
probable cause to believe that a vehicle has been the subject of a theft,
he may make a limited warrantless entry of the vehicle and search areas he
reasonably believes might contain evidence of ownership. 3 LaFave, supra,
§ 7.4(e), at 664-66.

¶ 53. As noted, in this case defendant was unable to produce a valid
driver's license, car registration, or proof of insurance. See 23 V.S.A.
§§ 301, 307 (motor vehicle shall not be operated on highway unless vehicle
is registered and registration is carried in some easily accessible place
in vehicle); 23 V.S.A. § 1012(b) (operator "shall produce his or her
operator's license and the registration certificate for the motor
vehicle"). Further, the vehicle's license plates did not match the
vehicle, see 23 V.S.A. § 513 (owner of motor vehicle shall not attach to
vehicle number plates not assigned to that vehicle), and the bill of sale
defendant showed to police did not indicate that defendant was the owner of
the vehicle. See 23 V.S.A. § 1012(a) (operator shall give "name and
address of the owner of the motor vehicle"). Given these circumstances,
the police officer had a responsibility to assure himself that the vehicle
had not been stolen.

¶ 54. The majority insists that no exigent circumstances existed,
relying heavily on the fact that defendant had been placed in custody. To
the extent that question is relevant in these circumstances, however, this
Court has held that "[t]he mere placing of a suspect vehicle's occupants in
custody does not extinguish exigency, if it otherwise exists." State v.
Girouard, 135 Vt. 123, 132-33, 373 A.2d 836, 842 (1977). Here, the
possibility that the vehicle had been stolen created exigent circumstances
authorizing the officer to conduct a limited warrantless search to look for
documents indicating its ownership. See People v. Todd, 35 Cal. Rptr. 2d
790, 794 (Ct. App. 1996) (given officer's duty to ascertain owner of
vehicle to determine whether to release or impound vehicle, "statute
authorizing an officer to inspect vehicle registration also authorizes the
officer to enter a stopped vehicle and conduct a warrantless search for the
required documents" within constitutional limits); State v. Holmgren, 659
A.2d 939, 940 (N.J. Super. Ct. App. Div. 1995) (driver's failure to produce
vehicle's registration or proof of insurance supported reasonable suspicion
that vehicle was stolen and authorized police "to conduct a limited
warrantless search of areas in the vehicle where such papers might normally
be kept by an owner"). This would be true regardless of the officer's
actual motivation underlying the search. See Todd, 35 Cal. Rptr. 2d at 794
(as long as search was legally authorized, officer's "subjective intentions
for his activities are not relevant").

¶ 55. The majority repeatedly relies upon the purported subjective
motivations of the arresting officer in this case, and yet it is well
settled that "subjective intent alone . . . does not make otherwise lawful
conduct illegal or unconstitutional." Scott v. United States, 436 U.S.
128, 136 (1978). Indeed, "the fact that the officer does not have the
state of mind which is hypothecated by the reasons which provide the legal
justification of the officer's actions does not invalidate the action taken
as long as the circumstances, viewed objectively, justify that action."
Id. at 138; see Whren v. United States, 517 U.S. 806, 812 (1996) (noting
that the Supreme Court has repeatedly rejected the notion "that an
officer's motive invalidates objectively reasonable behavior under the
Fourth Amendment"); United States v. Robinson, 414 U.S. 218, 221 n.1, 236
(1973) (holding that a traffic violation arrest would not be rendered
invalid merely because it was a pretext for a narcotics search, and
further, that a lawful post-arrest search of a person would not be rendered
invalid merely because it was not motivated by officer-safety concerns).
Cf. State v. Lussier, 171 Vt. 19, 23-24, 757 A.2d 1017, 1020 (2000) ("In
determining the legality of a stop, courts do not attempt to divine the
arresting officer's actual subjective motivation for making the stop;
rather, they consider from an objective standpoint whether, given all of
the circumstances, the officer had a reasonable and articulable suspicion
of wrongdoing.").

¶ 56. The majority's emphasis on the officer's subjective motivation
highlights the problem with decisions that have the effect of turning
police officers into constitutional law scholars who have to predict the
developing law and how this Court will rule. The officer understood he
could search incident to the DUI arrest and gave answers related to that
justification. The majority is requiring that he also understand the law
relating to whether he was dealing with a stolen car and answer that he was
searching for evidence of ownership of the vehicle. The reality is that
officers will not invariably give the right constitutional law answer in
describing the purposes of the search. The only reasonable rule has to be
that the validity of the search must be based on the objective evaluation
of the circumstances and not our evaluation of the level of constitutional
law knowledge of the searching officer.

¶ 57. The majority also incorrectly contends that the officer did
not observe any evidence of a crime in the vehicle. The officer's
affidavit and testimony indicated that defendant was speeding and driving
erratically. After the stop occurred, the officer smelled a faint odor of
alcohol emitting from the vehicle. Further, defendant exhibited signs of
intoxication, and he failed dexterity tests, which led to his arrest for
driving while intoxicated. Thus, there was evidence that defendant had
committed several crimes connected with the vehicle.

¶ 58. In short, either of the two grounds discussed above, and
certainly both in combination, provided adequate grounds for the police to
search the vehicle without a warrant for evidence of the crimes-DUI and
stealing a parking meter or possessing a stolen meter-or to determine the
ownership of the vehicle. Thus, we need not reach broad constitutional
questions in this case.

¶ 59. This leads me to the majority's broad constitutional holding
that rejects the decision of the United States Supreme Court in Belton, 453
U.S. 454. Before I address Belton, however, I emphasize that the
majority's broad holding is unnecessary even if we hold that neither the
stolen car nor plain-view exceptions apply. The majority rejects Belton
in favor of the so-called "case-by-case" approach taken in Chimel v.
California, 395 U.S. 752 (1969), but, in my view, an analysis under Chimel
would not result in overturning the trial court's decision in this case.
Chimel allows police to search areas within the reach of suspects
contemporaneously with arrests to protect themselves and to prevent the
destruction of evidence. 395 U.S. at 766. (FN13) The officer in this case
testified specifically that he searched only in that area. As a practical
matter, officers protect themselves by conducting searches after suspects
have been arrested and secured. Yet that did not prevent courts from
permitting searches and seizures conducted contemporaneously with the
arrest within the area of control described in Chimel, even when the
suspect had been secured before the actual search or seizure. See, e.g.,
United States v. Dixon, 558 F.2d 919, 922 (9th Cir. 1977) (permitting,
under Chimel, a search and seizure of items on a vehicle's floorboard while
other officers patted down and handcuffed the suspect outside of the
vehicle); United States v. Sanders, 631 F.2d 1309, 1313-14 (8th Cir. 1980)
(permitting, under Chimel, a search and seizure that was conducted within
the immediate vicinity of the suspects' vehicle and that "was substantially
contemporaneous with the arrest," even though the officers had secured
control over the suspects).

¶ 60. Moreover, in many encounters involving vehicle stops, as in
the one before us, there are several suspects or passengers. In those
cases, officers may search the area within the reach of any or all of those
persons. See State v. Mayer, 129 Vt. 564, 567-68, 283 A.2d 863, 865 (1971)
(relying on Chimel to permit search on ground that either the defendant or
the defendant's girlfriend could have reached a weapon at the time of the
defendant's arrest). Here, the passenger apparently remained in the car
while the officer was administering field dexterity tests to defendant.
Under these circumstances, Chimel would have allowed the officer to search
the open inner compartment of the vehicle contemporaneously with
defendant's arrest to protect himself and to preserve potential evidence.
Thus, even if Belton had never been decided, and this Court were required
to analyze the case under Chimel, I would affirm the trial court's denial
of defendant's motion to suppress.

¶ 61. This leads me to the principal basis for my dissent, which
does require an in-depth analysis of the perimeters of the
search-incident-to-arrest exception to warrantless searches under Article
11 of the Vermont Constitution. Assuming this to be the controlling issue
under the circumstances of this case, I would still affirm the district
court's denial of defendant's motion to suppress because, in my view, the
values underlying Article 11 do not prohibit police from conducting
warrantless searches of the passenger compartment of automobiles following
the arrest of the operator for an offense involving the use of the vehicle.
The district court found both the automobile and search-incident-to-arrest
exceptions to be applicable in this case. The court explained that exigent
circumstances existed because the police had released defendant's companion
without ascertaining whether she had keys to the vehicle, and ownership of
the vehicle had not been established. The court also cited the
"well-established" principle that police can lawfully conduct a warrantless
search of a person and his immediate surroundings following a valid stop
and arrest.

¶ 62. In support of its decision, the district court relied on
Belton, the leading federal case addressing the search-incident-to-arrest
exception in the context of an automobile stop. The question before the
Court in that case was the following: "When the occupant of an automobile
is subjected to a lawful custodial arrest, does the constitutionally
permissible scope of a search incident to his arrest include the passenger
compartment of the automobile in which he was riding?" Belton, 453 U.S. at
455. The Court accepted review of this issue because the lower courts had
been struggling with whether or how to apply Chimel in cases involving
arrests following automobile stops. Prior to Chimel, the Court had allowed
a full warrantless search of a suspect's home or vehicle following the
suspect's arrest. See 3 LaFave, supra, § 7.1(a), at 502 (discussing cases
leading to Belton decision). In Chimel, the Court overruled that line of
cases in the context of a search of a home, reasoning that the warrantless
search of a suspect's home following his arrest is unreasonable under the
Fourth Amendment if it extends beyond the area in which the suspect could
either reach a weapon that would endanger the arresting officers or conceal
or destroy evidence that could be used against him. 395 U.S. at 768.

¶ 63. Following the decision in Chimel, the lower courts were
divided on whether, or the extent to which, that holding applied in the
context of the search of an automobile following the arrest of its
occupant. See 3 LaFave, supra, § 7.1(a), at 503-04. Recognizing that the
lower courts had found the holding in Chimel "difficult to apply in
specific cases," particularly automobile stops, the Court in Belton
reasoned that Fourth Amendment protections " 'can only be realized if the
police are acting under a set of rules which, in most instances, makes it
possible to reach a correct determination beforehand as to whether an
invasion of privacy is justified in the interest of law enforcement.' "
Belton, 453 U.S. at 458-59 (quoting LaFave, "Case-by-Case Adjudication"
Versus "Standardized Procedures": The Robinson Dilemma, 1974 S. Ct. Rev.
127, 142). According to the Court, a "single, familiar standard is
essential to guide police officers, who have only limited time and
expertise to reflect on and balance the social and individual interests
involved in the specific circumstances they confront.' " Belton, 453 U.S.
at 458 (quoting Dunaway v. New York, 442 U.S. 200, 213-14 (1979)).

¶ 64. The Court concluded, however, that "no straightforward rule
ha[d] emerged" from the litigated federal or state cases regarding "the
proper scope of a search of the interior of an automobile incident to a
lawful custodial arrest of its occupants." Belton, 453 U.S. at 459. Based
on its conclusion that articles within the passenger compartment of an
automobile are "generally, even if not inevitably" within an area in which
a suspect could reach a weapon or evidence, the 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." Id. at 460. In addition,
the Court held "that the police may also examine the contents of any
containers found within the passenger compartment, for if the passenger
compartment is within reach of the arrestee, so also will containers in it
be within his reach." Id. In Thornton v. United States, the Court further
concluded "that Belton governs even when an officer does not make contact
until the person arrested has left the vehicle." 541 U.S. 615, 617 (2004).
Thus, in the context of automobile searches following a lawful arrest, the
Court rejected a case-by-case application of the Chimel rule in favor of a
workable, bright-line rule that provides guidance to police officers.

¶ 65. The majority rejects the analysis of Belton, particularly the
adoption of a bright-line rule, as an "abrupt shift in the standard of
fourth amendment protections." Ante, ¶ 20. The so-called "abrupt shift"
is actually none at all. Belton creates a bright-line rule allowing
warrantless searches incident to the roadside arrest of automobile
occupants. The majority recognizes that the "search-incident-to-arrest
doctrine" is an established exception to the warrant requirement. Ante, ¶
15. Moreover, this Court has adopted this exception. See State v.
Meunier, 137 Vt. 586, 588, 409 A.2d 583, 584 (1979) (quoting both the
Fourth Amendment and Article 11, and stating that reasonable warrantless
searches incident to arrest are permissible); State v. Greenslit, 151 Vt.
225, 227, 559 A.2d 672, 673 (1989) ("It is axiomatic that a search incident
to a lawful arrest is constitutional.").

¶ 66. The use of a bright-line rule for searches incident to arrest
is explained in United States v. Robinson where the Court rejected a
case-by-case adjudication of "whether or not there was present one of the
reasons supporting the authority for a search of the person incident to
arrest." 414 U.S. at 235. The Court explained that neither its own "long
line of authorities" nor "the history of practice in this country and
Europe" compelled such a result. Id. It stated: "A police officer's
determination as to how and where to search the person of a suspect whom he
arrested is necessarily a quick ad hoc judgment which the Fourth Amendment
does not require to be broken down in each instance into an analysis of
each step in the search." Id. The Court further explained that the Chimel
holding, on which the majority relies in this case, allows searches in
areas within the immediate control of the arrestee in a home. Id. at 226.
Thus, Chimel itself establishes a bright-line rule, one that the majority
apparently endorses here. (FN14)

¶ 67. But even if we were not dealing with the definition of an
accepted bright line-as opposed to creating a new one-I would reject the
majority's holding that our precedents prohibit bright-line rules. In
fact, our interpretations of Article 11, and the federal court
interpretations of the Fourth Amendment, are essentially the same on this
point. At its strongest, the federal policy on the propriety of
bright-line rules was recently stated in United States v. Drayton: "[F]or
the most part per se rules are inappropriate in the Fourth Amendment
context. The proper inquiry necessitates a consideration of all the
circumstances surrounding the encounter." 536 U.S. 194, 201 (2002)
(citation and internal quotation omitted). The majority is correct that
two of our decisions have rejected federal search-and-seizure decisions
because they embodied specific bright-line rules. See Savva, 159 Vt. at
87, 616 A.2d at 781; State v. Kirchoff, 156 Vt. 1, 8, 587 A.2d 988, 993
(1991). (FN15) Neither decision, however, categorically rejects
bright-line rules. Indeed, as noted above, the majority's endorsement of
Chimel would be inconsistent with such a rejection.

¶ 68. On the other hand, in circumstances where there was a need
for certainty, we adopted what is essentially a bright-line rule in State
v. Martin, 145 Vt. 562, 571, 496 A.2d 442, 448 (1985), a decision upholding
the constitutionality of DUI roadblocks under Article 11 in controlled
circumstances. We held that "[a]s a general rule, a DUI roadblock will
pass constitutional muster if" it meets six specific and objective
standards, one of which is that "the discretion of the officers in the
field, as to the method to be utilized in selecting vehicles to be stopped,
is carefully circumscribed by clear objective guidelines established by a
high level administrative official." Id. The majority's assertion that
"we have consistently rejected bright-line rules," ante, ¶ 20, is a gross
exaggeration.

¶ 69. Hence, the proper question is not whether Belton should be
rejected because it embodies a bright-line rule, but rather, whether a
bright-line rule is justified in the circumstances and whether Belton
embodies a reasonable bright line. I believe that the answer to the first
part of the question is clearly yes. Although I believe that the Belton
bright line is misplaced-and thus the answer to the second part of the
question is no-I believe that the search in this case is within a
reasonably drawn line so that the Belton misplaced line does not affect the
outcome.

¶ 70. The reasons for a bright-line rule in cases like the present
are best explained by Professor LaFave, as quoted in Belton, who explained
that because the Fourth Amendment is "primarily intended to regulate the
police in their day-to-day activities," it "ought to be expressed in terms
that are readily applicable by the police in the context of law enforcement
activities in which they are necessarily engaged." Belton, 453 U.S. at 458
(quoting LaFave, "Case-by-Case Adjudication" Versus "Standardized
Procedures": The Robinson Dilemma, 1974 S. Ct. Rev. at 141). He stated
that although rules that require "subtle nuances and hairline distinctions"
might be "the sort of heady stuff upon which the facile minds of lawyers
and judges eagerly feed," such rules "may be literally impossible of
application by the officer in the field." Id. (internal quotations
omitted). Similarly, in writing for the majority, Justice Souter recently
reiterated the Court's recognition of the government's "essential interest
in readily administrable rules" in this context because:

[A] responsible Fourth Amendment balance is not well served by
standards requiring sensitive, case-by-case determinations of
government need, lest every discretionary judgment in the field be
converted into an occasion for constitutional review. Often
enough, the Fourth Amendment has to be applied on the spur (and in
the heat) of the moment, and the object in implementing its
command of reasonableness is to draw standards sufficiently clear
and simple to be applied with a fair prospect of surviving
judicial second-guessing months and years after an arrest or
search is made.

Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001) (internal citation
omitted).

¶ 71. I can think of no greater example of the need to apply
constitutional search-and-seizure rules "on the spur (and in the heat) of
the moment" than during a roadside stop of an automobile of a likely
intoxicated driver in the middle of the night. Nor are there many
recurrent law-enforcement activities that are more dangerous for the
officer involved. For this reason, the case for a bright-line rule
involving automobile searches incident to an arrest is a strong one.

¶ 72. There is an additional reason why a bright-line rule is
appropriate for automobile searches incident to the arrest of an occupant
of a vehicle. In applying search-and-seizure law, courts have unanimously
recognized that a vehicle is fundamentally different from a home in the
sense that its mobility, its function as transportation on public highways,
and its extensive regulation (1) increase the likelihood of the existence
of exigent circumstances justifying warrantless searches and (2) result in
frequent contact between the vehicle's occupants and government authorities
or members of the public in both criminal and noncriminal contexts, thereby
reducing the expectation of privacy in items placed in the open passenger
compartment of the vehicle. See 3 LaFave, supra, § 7.2(b), at 548.

¶ 73. People regularly expose the interior of their vehicles to
public view by driving them on public streets and parking them in public
places. Indeed, the many windows in the vehicle leave little in the
interior of the passenger compartment, apart from that placed in closed
containers, outside of public view, and thus there is little expectation of
privacy in the passenger compartment of an automobile.

¶ 74. Consequently, similar to other courts, we have consistently
emphasized within our Article 11 jurisprudence the distinction between
searches of homes and cars. See State v. Geraw, 173 Vt. 350, 352-53, 795
A.2d 1219, 1221 (2002) (holding that our case law "underscore[s] the
significance of the home as a repository of heightened privacy
expectations"). This distinction is particularly highlighted in a pair of
cases we decided fifteen years ago. In State v. Blow, 157 Vt. 513, 520,
602 A.2d 552, 556 (1991), we held that obtaining evidence without a warrant
through surreptitious electronic monitoring in the defendant's home
violated Article 11. See also Geraw, 173 Vt. at 351, 795 A.2d at 1220
(holding that Article 11 prohibits secret recording of police interviews
conducted in suspect's home). In so holding, we stated that one of the
core values embodied by Article 11 is "the deeply-rooted legal and societal
principle that the coveted privacy of the home should be especially
protected." Blow, 157 Vt. at 518, 602 A.2d at 555.

¶ 75. In contrast, in State v. Brooks, 157 Vt. 490, 494, 601 A.2d
963, 965 (1991), we held that the warrantless, electronic participant
monitoring of individuals conversing through the open windows of cars
parked alongside each other in a public lot did not violate the protections
provided by Article 11. See also State v. Bruyette, 158 Vt. 21, 37, 604
A.2d 1270, 1278 (1992) (Dooley, J., concurring, joined by Allen, C.J., and
Gibson, J.) (suggesting that secret monitoring of conversation between
defendant and his girlfriend in parked car was outside protection of
Article 11). In distinguishing Blow, we stated that "[t]he distinction
between the reasonable expectation of privacy within the home and outside
of it is well-grounded in the law and in our culture." Brooks, 157 Vt. at
493, 601 A.2d at 964. We further explained that our refusal to subject
participant monitoring of individuals in their cars to the same strict
standards applied to such monitoring within the home is "simply a
reflection of the [less restrictive] standards that apply to nonhome
searches generally." Id.; see State v. Charpentier, 962 P.2d 1033, 1037
(Idaho 1998) (stating that extensive regulation of automobiles on public
highways does not directly address issue of automobile searches, but is
"indicative of the fact that the automobile is not comparable to the home"
in that "the expectation of privacy within the automobile falls far short
of that accorded the sanctuary of the home").

¶ 76. The acknowledgment of a reduced expectation of privacy in
automobiles, as opposed to homes, is incorporated directly into the
automobile exception and indirectly into the search-incident-to-arrest
exception to the warrant requirement. With regard to the automobile
exception, although we have not followed federal law in allowing
warrantless searches of automobiles based on probable cause absent a
particularized showing of exigent circumstances, Trudeau, 165 Vt. at 361,
683 A.2d at 729 (rejecting notion that mobility of automobiles is per se
exigent circumstance allowing warrantless search), we have acknowledged
that automobiles often may present exigent circumstances, and that "people
may have a lesser expectation of privacy in their vehicles, which are
exposed at least in part to the public eye." Savva, 159 Vt. at 83, 616
A.2d at 778.

¶ 77. In Savva, we identified the issue before us as "whether
defendant had a reasonable expectation of privacy, not in the vehicle as a
whole, but specifically in the contents of a brown paper bag in which the
drugs, contained in plastic bags, were found," and we acknowledged that
"Article 11's requirement for an expectation of privacy may not be met" if
a container's contents were discernable. Id. at 89-90, 616 A.2d at 782
(emphasis added). In reversing the district court's denial of defendant's
motion to suppress, we concluded that the lesser expectation of privacy in
vehicles does not carry over to sealed containers within the vehicle, as
the United States Supreme Court had held. Id. at 87, 616 A.2d at 781.
Accordingly, we recognized "a separate and higher expectation of privacy
for containers used to transport personal possessions than for objects
exposed to plain view within an automobile's interior." Id. at 88, 616
A.2d at 781. Thus, our holding in Savva is narrowly restricted to closed
containers within vehicles and, in fact, recognizes a diminished
expectation of privacy in items placed in the open passenger compartment of
vehicles.

¶ 78. Like the automobile exception, Belton's bright-line rule
allowing police to search the passenger compartment of a vehicle following
the lawful arrest of its occupants is based, at least in part, on the
mobility of, and reduced expectation of privacy in, automobiles. See
Girouard, 135 Vt. at 132-33, 373 A.2d at 842. Yet, the majority has simply
ignored this distinction, holding that a rule created for the home in
Chimel should be applied without any modification to an automobile. This
is the real "abrupt shift in the standard of Fourth Amendment protections"
in this case.

¶ 79. It is important to understand that the majority has not only
refused to adopt a bright-line rule, but it has gone as far in the opposite
direction as is realistically possible by requiring a showing of exigent
circumstances on a case-by-case basis. Anyone who reads both the
majority's and the dissent's analysis of the presence of exigent
circumstances in Trudeau, and the majority's attempt to distinguish Trudeau
from this case, will immediately recognize that it is difficult to predict
whether exigent circumstances can be found. Many courts have noted that
"exigent circumstances" are difficult to define even in the context of
deliberate and painstaking review based on appellate hindsight. See State
v. Aviles, 891 A.2d 935, 944 (Conn. 2006) (recognizing that the term
exigent circumstances "does not lend itself to a precise definition")
(quotation and citation omitted); State v. Clark, 654 P.2d 355, 360 (Haw.
1982) (same); State v. Wren, 768 P.2d 1351, 1356 (Idaho Ct. App. 1989)
(same); State v. Nishina, 816 A.2d 153, 162 (N.J. 2003) (same). Requiring
a showing of exigent circumstances on a case-by-case basis in the context
of a search incident to a highway arrest is not a workable policy.

¶ 80. The majority asks that a lone police officer who stops a
vehicle at two o'clock in the morning not only be a constitutional law
expert but also exercise twenty-twenty hindsight on whether a majority of
this Court will find exigent circumstances. (FN16) No law enforcement
system can operate this way safely and effectively. The majority's
case-by-case exigent circumstances regime is the equivalent of holding that
a vehicle cannot be searched incident to an arrest of an occupant of the
vehicle.

¶ 81. In the majority's view, the only advantage to a bright-line
rule is "law-enforcement efficiency" and "administrative simplicity." As I
said in the opening of this dissent, the majority has trivialized very
important interests in officer safety and evidence gathering, making them
seem insignificant when balanced against the privacy interests of citizens.
But we have not always been so hostile to the realities of limited
resources available for law enforcement functions. In State v. Oakes, in
response to an argument that a consensual search of defendant's home had
been discontinued and required new authority to be recommenced, we
explained:

The discontinuity of the investigation was, in some measure, due
to the limitations implicit in police work in most Vermont
villages. The small manpower of the local force must, of
necessity, be supplemented by the personnel and the expertise the
state police can furnish, once they arrive. . . . Delay, or
interruption of police presence at the premises, on this account,
does not undercut the right of the police to complete, within a
reasonable time, their investigative work, or require a renewed
authority to enter.

129 Vt. 241, 251, 276 A.2d 18, 25 (1971). Similarly, the realities of lone
officers stopping vehicles in the middle of the night necessarily must
inform the choices available to the officer to protect his or her safety
and discharge the law-enforcement function.

¶ 82. As for the majority's main objection to a bright-line rule
authorizing a search of a vehicle-that the arrested occupant is often
restrained such that he or she could never reach a weapon or destroy
evidence by the time the search occurs-the best response is to examine the
nature of automobile stops. The majority attributes the circumstance of a
secured suspect to the recent decision in Thornton, 541 U.S. 615, but it
was also true in Belton and virtually every search-incident-to-arrest case
in the automobile context. It was also probably true in Chimel and
virtually every search-incident-to-arrest case where the search goes beyond
the person. The reason is simple: no police officer should or would ever
leave a suspect who is to be arrested unrestrained while the officer
conducts a search. See M. Moskovitz, A Rule in Search of a Reason: An
Empirical Reexamination of Chimel and Belton, 2002 Wis. L. Rev. 657, 676,
696 (describing "common sense" need of police to restrain suspect upon
arrest). Self-protection generally demands restraint of the suspect first.
Thus, the majority's objection is really to the "grab rule" of Chimel and
not to the bright line established in Belton. See id. at 677.

¶ 83. There are very important reasons for a "grab rule," and they
are particularly strong for vehicle searches, which often involve more than
one occupant of the vehicle. To ensure their safety, police must be
cognizant of the potential threat posed not only by the suspect, but also
by the suspect's companions. For example, in an early post-Chimel Vermont
case, Mayer, defendant was arrested in a motel room also occupied by his
female companion. 129 Vt. at 566, 283 A.2d at 864. The search incident to
the arrest of defendant recovered a gun located under the pillows to the
bed occupied by the female companion. Id. In response to the argument
that the police had searched outside the "grab area," this Court said:

Upon entering the motel room . . . it was an essential security
function for the enforcement officers to search the accused and
the area within his reach. It was equally reasonable that the
protective search extend to the area within reach of his female
companion. It appears that the weapon was within the grasp of
both. Until the weapon was secured, either occupant of the room
had the capability of impeding the arrests and endangering the
lives of those present.

Id. at 567-68, 283 A.2d at 865. Just as the officer was permitted to
search the motel bed in Mayer, the officer in this case must be able to
search the passenger compartment of defendant's vehicle, which was occupied
by defendant's companion while defendant was performing dexterity tests.
Even if the issue were solely personal security, it is unacceptable to put
the officer in the position of making a constitutional calculation of
whether the restrained defendant can reach a gun or whether another
occupant is likely to do so.

¶ 84. The majority tries to avoid these security interests by
"factualizing" the case, see generally W. LaFave, Being Frank About the
Fourth: On Allen's Process of "Factualization" in the Search and Seizure
Cases, 85 Mich. L. Rev. 427 (1986), to say there is no security concern.
Thus, in its introductory paragraph it characterizes the question in this
case as: "whether law-enforcement officers may routinely search a motor
vehicle without a warrant, after its occupant has been arrested,
handcuffed, and secured in the back seat of a police cruiser, absent a
reasonable need to protect the officers' safety or preserve evidence of a
crime." Ante, ¶ 1. In fact, its categorical rejection of Belton and any
alternative to Belton that involves a bright-line review represents a far
broader holding than its statement of the issue admits. Thus, its holding
is much broader than the facts of this case and involves many instances
where security of the officer is the prime concern.

¶ 85. The majority responds that there is no proof that stopping
vehicles is inordinately dangerous. In fact, the evidence is powerful.
Relying on a published study, the United States Supreme Court noticed and
relied upon that danger in Adams v. Williams, 407 U.S. 143, 148 n.3 (1972):
"[A]pproximately 30% of police shootings occurred when a police officer
approached a suspect seated in an automobile." The Court reiterated and
relied on this evidence in Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)
(noting the "inordinate risk confronting an officer as he approaches a
person seated in an automobile") and more recently in Michigan v. Long, 463
U.S. 1032, 1048-49 (1983). The United States Court of Appeals recently
amplified and updated the statistics in United States v. Holt, 264 F.3d
1215, 1223 (10th Cir. 2001) (en banc) (noting that "in 1999, 6048 officers
were assaulted during traffic pursuits and stops and 8 were killed," based
on FBI statistics). The court concluded from the evidence:

The terrifying truth is that officers face a very real risk of
being assaulted with a dangerous weapon each time they stop a
vehicle. The officer typically has to leave his vehicle, thereby
exposing himself to potential assault by the motorist. The
officer approaches the vehicle not knowing who the motorist is or
what the motorist's intentions might be. It is precisely during
such an exposed stop that the courts have been willing to give the
officers wide latitude, to discern the threat the motorist may
pose to officer safety.

An officer in today's reality has an objective, reasonable basis
to fear for his or her life every time a motorist is stopped.
Every traffic stop, after all, is a confrontation. The motorist
must suspend his or her plans and anticipates receiving a fine and
perhaps even a jail term. That expectation becomes even more real
when the motorist or a passenger knows there are outstanding
arrest warrants or current criminal activity that may be
discovered during the course of the stop. Resort to a loaded
weapon is an increasingly plausible option for many such motorists
to escape those consequences, and the officer, when stopping a car
on a routine traffic stop, never knows in advance which motorists
have that option by virtue of possession of a loaded weapon in the
car.

Id. at 1223 (internal quotation and citation omitted). (FN17)

¶ 86. Here, in addition to issues of safety, there was the
potential of lost evidence. The single officer who initiated the stop had
to leave the passenger in the darkened vehicle while the defendant
performed the dexterity tests. We know that the passenger did not use a
weapon at that time, although she could have done so, but we do not know
what evidence she may have removed from the vehicle. Although the officer
testified that she had left the scene by the time of the search, it is
impossible to know how far away she went in the middle of the night. For
all the officer knew, she could have returned later to remove evidence.
Moreover, if there had been no vehicle search and defendant had been
released after DUI processing as normally occurs, he could have returned
and driven the vehicle away.

¶ 87. My point is that, irrespective of the timing of the arrest or
search, or the restraint or release of passengers for whom there is no
probable cause to arrest, a bright-line rule is necessary to protect the
officer and the evidence at the scene. See State v. Watts, 127 P.3d 133,
137 (Idaho 2005) (stating importance of knowing that "when an arrest has
been made of the occupant or occupants of an automobile . . . the
automobile can be left untended with the assurance that any weapons,
evidence of crime or contraband have been removed from the reach of the
passersby or confederates in unlawful activity"). The limited expectation
of privacy in the passenger compartment of the automobile, as opposed to a
home, justifies a bright-line rule to search the full extent of the
passenger compartment.

¶ 88. As the majority reluctantly acknowledges, most states have
followed Belton and embraced a bright-line rule for searches incident to
arrest. See Vasquez v. State, 990 P.2d 476, 483 n.3 (Wyo. 1999) (citing
cases accepting and rejecting Belton); see also Stout v. State, 898 S.W.2d
457, 460 (Ark. 1995) (declining to diverge from Belton rule under Arkansas
Constitution because of great difficulty in balancing competing interests
in this area and because of workable nature of Belton rule); State v.
Waller, 612 A.2d 1189, 1193-94 (Conn. 1992) (reaffirming that Belton rule
governs under state constitution even if arrestee was handcuffed and placed
in police cruiser before search); State v. Sanders, 312 N.W.2d 534, 539
(Iowa 1981) (concluding that Belton rule "strikes a reasonably fair balance
between the rights of the individual and those of society"); State v.
Murrell, 764 N.E.2d 986, 991-92, 993 (Ohio 2002) (overruling previous case
law and joining majority of other states in adopting Belton under state
constitution); Charpentier, 962 P.2d at 1037 (adopting Belton under Idaho
Constitution as clear rule that gives guidance and protection to police
without unduly restricting public's expectation of privacy); State v. Fry,
388 N.W.2d 565, 574-75 (Wis. 1986) (adopting Belton under Wisconsin
Constitution as simple and reasonable rule that fosters uniformity and
predictability).

¶ 89. Indeed, notwithstanding "the drumbeat of scholarly opposition
to Belton," State v. Eckel, 888 A.2d 1266, 1272-73 (N.J. 2006), the vast
majority of state courts have recognized the reduced expectation of privacy
in automobiles and the need for a bright-line rule to allow vehicle
searches following a lawful arrest. See generally E. Shapiro, New York v.
Belton and State Constitutional Doctrine, 105 W. Va. L. Rev. 131 (2002)
(discussing jurisdictions accepting, modifying, and rejecting Belton). For
example, the Washington Supreme Court drew a bright-line rule slightly
narrower than that in Belton under its state constitution by holding that
immediately following an arrest, even if the suspect has been handcuffed
and placed in a patrol car, the police may "search the passenger
compartment of a vehicle for weapons or destructible evidence," but may not
search a locked container or glove compartment. State v. Stroud, 720 P.2d
436, 441 (Wash. 1986).

¶ 90. Other states, such as New York, Oregon, and Wyoming, have
relied on the reasoning underlying both the automobile and
search-incident-to-arrest exceptions to allow police to conduct limited
searches of the passenger compartment of automobiles following an arrest to
obtain evidence related to the crime for which the suspect was arrested.
(FN18) For example, the Supreme Court of Oregon has "expanded the
justification for a search incident to arrest beyond considerations of the
officer's safety and destruction of evidence to permit a reasonable search
when it is relevant to the crime for which defendant is being arrested."
State v. Lowry, 667 P.2d 996, 1003 (1983) (internal quotations and citation
omitted). Under this approach, in essence, the arrest itself provides the
probable cause basis for the search. See State v. Fesler, 685 P.2d 1014,
1016 (Or. Ct. App. 1984).

¶ 91. Similarly, although the New York Court of Appeals did not
adopt Belton's bright-line test under its state constitution, it recognized
that "when the occupant of an automobile is arrested, the very
circumstances that supply probable cause for the arrest may also give the
police probable cause to believe that the vehicle contains contraband,
evidence of the crime, a weapon or some means of escape." People v.
Blasich, 541 N.E.2d 40, 43 (N.Y. 1989). In light of the inherent mobility
of, and reduced expectation of privacy in, automobiles, the court held that
police may contemporaneously search the passenger compartment of a vehicle,
including any containers found therein, following a valid arrest if they
have reason to believe that the vehicle may contain evidence related to the
crime for which the occupant was arrested. Id. at 43-44.

¶ 92. In particular, courts have employed this rule following
arrests for DUI. For instance, while rejecting the full reach of Belton,
the Wyoming Supreme Court held that its state constitution authorized
police to search the passenger compartment of a vehicle for evidence of
DUI, the offense for which the driver was arrested. Vasquez, 990 P.2d at
488. According to the court, "[t]he characteristics of a driving while
under the influence arrest for suspected alcohol intoxication permit a
search of the passenger compartment of the vehicle for any intoxicant,
alcohol or narcotic, as evidence related to the crime of driving while
intoxicated." Id.; see also State v. Brody, 686 P.2d 451, 453 (Or. Ct.
App. 1984) (holding that once officers arrested suspect for DUI, it was
reasonable for them to search cab for evidence of crime, but not to expand
search to closed containers).

¶ 93. This brings me to what should be the question in this case if
we reach a broad constitutional holding: Where should the bright line be
established? I believe that a bright-line rule allowing officers to search
the passenger compartment of vehicles for evidence of the crime for which
an occupant of the vehicle was lawfully arrested is completely consistent
with our case law and the values Article 11 protects. It would be
inconsistent with Article 11, however, to grant a broader authorization for
searches of automobiles because in Savva we held that a warrant was
necessary before police could search items or areas-such as closed
containers or compartments-in which a person had demonstrated a legitimate
expectation of privacy. I see no reason to revisit Savva and thus would
not adopt the full extent of the Belton holding allowing essentially a
complete search of a vehicle, including any closed containers within the
vehicle, following an arrest. But, as the majority of state courts have
recognized, a bright-line rule allowing searches of a vehicle's passenger
compartment, most of which can be viewed from outside the vehicle, does not
unduly infringe upon reasonable expectations of privacy of those operating
motor vehicles on our highways.

¶ 94. When an operator or occupant of a vehicle is arrested for DUI,
a crime that is committed with the vehicle, it is eminently reasonable to
allow police to conduct a warrantless search of the open passenger
compartment of the vehicle for evidence related to the crime, such as
alcohol or other drugs. (FN19) There is plainly a logical inference
supporting a conclusion that the passenger compartment may contain evidence
of the crime. See State v. Towne, 158 Vt. 607, 616, 615 A.2d 484, 489
(1992) (rejecting more-likely-than-not standard for probable cause, and
instead requiring only nexus between crime, suspect, and place to be
searched). Moreover, as we have often recognized, the occupant of a
vehicle has a only a limited expectation of privacy in items placed in the
passenger compartment of a vehicle. See 3 LaFave, supra, § 7.2(c), at 563
("[P]erhaps a warrantless search of a vehicle is sometimes reasonable even
if there is lacking that amount of particularity concerning what is sought
which would be needed to search a house or apartment."); Murrell, 764
N.E.2d at 992 ("Concerns about a possible lack of probable cause to conduct
a search in a Belton situation are eased by the fact that probable cause
must have been present to arrest the occupant of the vehicle in the first
place.").

¶ 95. In this case, defendant was lawfully arrested after he showed
indicia of intoxication and failed dexterity tests. A police check
revealed that the records of the Department of Motor Vehicles did not show
defendant as the registered owner of the vehicle. Furthermore, defendant
was unable to produce a bill of sale with his name on it and had only a
vague explanation for how he had obtained the vehicle's plates. Finally,
the vehicle's passenger was released from the scene, and, until they
completed the initial search of the passenger compartment of the vehicle,
the police were unsure whether they were going to impound, or merely
ground, the vehicle. Under these circumstances, it was entirely reasonable
for the officers to conduct a brief, warrantless search of the open
passenger compartment of the vehicle to secure any evidence related to
defendant's arrest for DUI and to determine the owner of the vehicle.
Where the vehicle is essentially the instrument of the serious offense of
drunken driving, police should be allowed to search the passenger
compartment of the vehicle to prevent the loss of evidence related to that
offense.

¶ 96. The majority's opinion suggests that the arresting officer was
on a fishing expedition, but even assuming the relevance of the officer's
subjective motivation, he expressly testified that his initial concern was
"evidence of the [DUI] in relation to the [DUI] arrest-whether it's beer
bottles, prescription pills, drugs, that sort of thing that would have
impaired that particular person." The majority also questions the officer's
motives by noting that the seized beer bottle was never kept as evidence.
Yet, this Court has explicitly rejected this rationale in almost exactly
the same context in a previous decision. See Trudeau, 165 Vt. at 360, 683
A.2d at 728 (stating that it was irrelevant with respect to officer's
motives that police did not retain partially full beer can as evidence
following DUI arrest, given that State's reliance on officer's testimony
regarding beer can made retention of can as physical evidence unnecessary).
In my view, the officer's actions in this case were reasonable and did not
violate values protected by Article 11.

¶ 97. In conclusion, I repeat that the broad constitutional ruling
of the majority is wholly unnecessary if we decide this case under the
settled law that is applicable. If we must decide the constitutional
question, however, I cannot accept the majority's answer. The rule that
the majority announces today will seriously impede legitimate
law-enforcement activities and increase the danger to law-enforcement
officers, without providing any real benefit for the privacy interests of
Vermont citizens. Accordingly, I would affirm the district court's denial
of defendant's motion to suppress. I respectfully dissent.

____________________________________
Associate Justice

------------------------------------------------------------------------------
Dissenting

¶ 98. REIBER, C.J., dissenting. I respectfully dissent from the
majority's holding that the search in this case was unconstitutional. I
agree with the majority that the search was not justified by the plain-view
exception to the warrant requirement, ante, ¶¶ 28-31, or by the
search-incident-to arrest doctrine, ante, ¶¶ 15-26. However, I concur
with my dissenting colleague's position that the search was justified by
the circumstances indicating that the vehicle might have been stolen, and
would affirm on that narrow ground, as articulated ante, ¶¶ 52-54.

____________________________________
Chief Justice

------------------------------------------------------------------------------
Footnotes

FN1. The officer testified several times to the effect that "the car wasn't
going to be driven because we had no documentation of who it belonged to,
that it was registered or that it was insured." In other words, the
decision to "ground" the car was made before the initial search, based on
the lack of proof of ownership. Later, based on the evidence obtained
during the search, the officers determined that the vehicle would be
impounded and a warrant obtained for a more thorough search. With respect,
the dissent is simply mistaken in asserting that the decision to ground the
vehicle was made after the search.

FN2. The full text of Article 11 reads:

That the people have a right to hold themselves, their houses,
papers, and possessions, free from search or seizure; and
therefore warrants, without oath or affirmation first made,
affording sufficient foundation for them, and whereby by any
officer or messenger may be commanded or required to search
suspected places, or to seize any person or persons, his, her or
their property, not particularly described, are contrary to that
right, and ought not to be granted.

Vt. Const. ch. I, art. 11.

FN3. The dissent's assertion that State v. Martin, 145 Vt. 562, 496 A.2d 442
(1985), represents "essentially a bright-line rule" adopted by this Court,
post, ¶ 68, is well wide of the mark. There, we rejected the claim that
DUI roadblocks "constitute a per se violation of the Fourth Amendment," id.
at 565, 496 A.2d at 445, adopting instead a balancing test "directly
related to the characteristics of the DUI roadblock in each case." Id. at
570, 496 A.2d at 448 (emphasis added). This is the opposite of a
bright-line standard.

FN4. Although the word "unreasonable" does not appear in the text of Chapter
I, Article 11 of the Vermont Constitution, see supra, note 2, we have
consistently construed the provision to forbid only unreasonable searches
and seizures. State v. Record, 150 Vt. 84, 85, 548 A.2d 422, 423 (1988).
As discussed above, we have also consistently held that warrantless
searches are presumptively unreasonable unless justified by a
well-recognized exception. State v. Mountford, 171 Vt. 487, 493, 769 A.2d
639, 646 (2000), abrogated on other grounds by Brigham City, Utah v.
Stuart, 126 S. Ct. 1943 (2006).

FN5. As the dissent notes, this variation also appears to have been endorsed
by Justice Scalia in a concurring opinion in Thorton. While sharply
criticizing Belton, Justice Scalia nevertheless opined that, "[i]f Belton
searches are justifiable, it is not because an arrestee might grab a weapon
or evidentiary item from his car, but simply because the car might contain
evidence relevant to the crime for which he was arrested." 541 U.S. at 629
(Scalia, J., concurring).

FN6. The dissent asserts that we mischaracterize the record "with respect to
whether the parking meter was in plain view." Post, ¶ 43. Not so. The
officer's testimony was clear, unequivocal, and undisputed that he did not
observe the parking meter from outside the vehicle, and was unaware of its
existence until it was discovered during the vehicle search.

FN7. Contrary to the assertion of the dissent, we neither "emphasize" nor
"repeatedly" rely on the office's subjective perception that he did not
feel threatened or pressed to preserve evidence. We merely note the
officer's testimony in this regard as further proof of the absence of
evidence of exigent circumstances in this case.

FN8. To be sure, other courts have held that, under the traditional
automobile exception to the warrant requirement, a driver's failure to
produce documentation of ownership may establish a reasonable suspicion
that the vehicle is stolen and thereby establish the basis for a limited
search of the vehicle in those places, such as the glove compartment or sun
visor, where such documents are normally stored. See, e.g., State v.
Holmgren, 659 A.2d 939, 940 (N.J. Super. Ct., App. Div. 1995) (holding that
failure to produce registration allows search of vehicle for evidence of
ownership "confined to the glove compartment or other area where a
registration might normally be kept in a vehicle") (quotations omitted);
State v. Barrett, 406 A.2d 198, 200 (N.J. Super. Ct. Law Div. 1979)
(invalidating search of vehicle for registration where there was "no
expectation that any indicia of title would be found in the rear of the
vehicle"). Other courts have even held that such proof of ownership might
be found in places other than the glove compartment, such as under seats.
In re Arturo D., 38 P.3d 433, 446-47 (Cal. 2002). These cases rely,
however, on either the Fourth Amendment or a state equivalent under which
exigent circumstances have not been deemed to be an essential element of a
warrantless automobile search. As noted, our law is directly to the
contrary.

FN9. The study to which the dissent refers, post, ¶ 85, and which has been
cited by the United State Supreme Court on several occasions, shows the
high frequency of shootings of police officers as they "approach a suspect
seated in an automobile." Adams v. Williams, 407 U.S. 143, 148 n.3 (1972).
That is not the situation here. Indeed, the study in question is
particularly inapposite in the search-incident-to-arrest context, where
studies have shown that, in fact, police officers invariably remove
suspects from anywhere near their vehicles and often-as here-handcuff and
place them in the back seat of the police cruiser, where there is no risk
of their gaining access to a weapon or evidence in the detained vehicle.
See M. Moskovitz, A Rule in Search of Reason: An Empirical Reexamination of
Chimel and Belton, 2002 Wis. L. Rev. 657, 676 (2002) (observing that a
survey of police practices reveals that "Belton's generalization that
articles inside the relatively narrow compass of the passenger compartment
of an automobile are in fact generally, even if not inevitably, within the
area into which an arrestee might reach in order to grab a weapon or
evidentiary item is-at least in general-false" (quotation omitted));_3
LaFave, supra, § 7.1(c) at 525 (observing that, because "the police can,
and typically do, immediately remove the arrestee from the vehicle," close
and lock his or her vehicle, and place him or her in handcuffs, "the
'difficulty' and 'disarray' the Belton majority alluded to has been more
the product of the police seeing how much they could get away with (by not
following the above-mentioned procedures) than their being confronted with
inherently ambiguous situations").

FN10. Despite the majority's criticism in footnote one, I emphasize that the
officers did not decide what to do with the car until after the search.
Moreover, because "grounding" simply involves leaving the car where it is
stopped, anyone could come along and drive the car away. Grounding in that
sense does not involve a seizure at all.

FN11. Ironically, the majority's version of the facts brings us to another
clearly applicable ground to validate the search. If, as the majority
suggests, the arresting officer had determined from the onset of his
encounter with defendant that the vehicle was to be seized and impounded,
then the evidence could have been admitted pursuant to the
inevitable-discovery rule, which is an exception to the exclusionary rule.
Under that rule, illegally obtained evidence will not be suppressed if the
prosecution demonstrates that the seized evidence would have been obtained
inevitably even if there had been no statutory or constitutional violation.
United States v. Mendez, 315 F.3d 132, 137 (2d Cir. 2002); Nix v. Williams,
467 U.S. 431, 440 (1984) (noting that the "vast majority of all courts,
both state and federal, recognize an inevitable discovery exception to the
exclusionary rule" (internal quotation omitted)). Here, the trial court
declined to apply that rule because the officer was unable to testify as to
any established written policy that the South Burlington Police Department
had regarding inventory searches of impounded cars. Ironically, in the
case that the trial court relied on, which has similar facts to the instant
case, the United States Court of Appeals for the Second Circuit admitted
evidence pursuant to the inevitable-discovery rule based on the police
department's unwritten inventory search policy. Mendez, 315 F.3d at
138-39. In any event, the purpose of requiring an established policy is to
assure that police have limited discretion in terms of how inventory
searches are conducted, not necessarily to foreclose application of the
inevitable-discovery rule in the absence of such a policy. See 6 W.
LaFave, Search and Seizure § 11.4(a), at 278-79 (4th ed. 2004) (noting that
"[c]ircumstances justifying application of the 'inevitable-discovery' rule
are most likely to be present" where evidence would have been revealed
pursuant to standardized procedures or established routines). Here, even
if the South Burlington Police Department had imposed the most severe
limitations imaginable with respect to inventory searches, any inventory of
the impounded vehicle would have immediately revealed the parking-meter
head laying in plain view. Therefore, if the arresting officer had in fact
determined before he searched the vehicle that it was to be impounded,
admission of the incriminating evidence in this case would have been
admissible under the inevitable-discovery rule.

FN12. After opening the car door, the investigating officers also observed
(1) a glass jar containing a green leafy substance on the floor behind, not
underneath, the driver's seat, and (2) a small pipe easily visible in an
open compartment of a side door.

FN13. After opening the car door, the investigating officers also observed
(1) a glass jar containing a green leafy substance on the floor behind, not
underneath, the driver's seat, and (2) a small pipe easily visible in an
open compartment of a side door.

FN14. I say "apparently endorses" because the majority also requires a
showing of exigent circumstances in the individual case, a requirement
wholly inconsistent with Chimel and the cases that apply it, including
Robinson.

FN15. I do not think that State v. Sprague, 2003 VT 20, 175 Vt. 123, 824
A.2d 539, the main case relied on by the majority, should be seen as an
example of a rejection of a federal decision because it embodied a
bright-line rule. If the issue is the bright-line nature of the federal
rule, the decision essentially trades one bright-line rule for another. It
does not call for application of the totality of the circumstances to
determine whether an exit order is constitutionally valid.

FN16. Without attempting to explain how an officer will make the decisions
the majority requires, the majority simply responds that "support for the
assumption that case-by-case evaluations are unworkable in the context of
warrantless vehicle searches is simply lacking." Ante, ¶ 25. At some
point, the obvious needs no further support.

FN17. The majority responds to the clear evidence of danger to officers with
the argument that the evidence is irrelevant because defendant was under
arrest in the police car when the vehicle was searched. As I emphasized
above, however, no reasonable officer will leave a suspect unrestrained in
order to conduct a search. On the other hand, many suspects will return to
their vehicles, and many vehicles will be left with passengers. The rule
that the majority announces today will leave the officer exposed to danger
in either of these circumstances. The statistics in Holt, 264 F.3d at
1223, are based on circumstances where, as is the case in the vast majority
of jurisdictions, the officer can reduce or eliminate the risk from
passengers and returning operators by searching for weapons. If the risk
shown by the statistics is so great with the power to search, it must be
even greater without the power to search.

FN18. This approach is also favored by Justice Scalia, who proposed it in a
dissent joined by Justice Ginsburg. Thornton, 541 U.S. at 630 (Scalia, J.,
dissenting). As Justice Scalia explained:

There is nothing irrational about broader police authority to
search for evidence when and where the perpetrator of a crime is
lawfully arrested. The fact of a prior lawful arrest
distinguishes the arrestee from society at large, and
distinguishes a search for evidence of his crime from general
rummaging. Moreover, it is not illogical to assume that evidence
of a crime is most likely to be found where the suspect was
apprehended.

Id. Thus, Justice Scalia would allow a search of a vehicle following the
arrest of its occupants "where it is reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle." Id. at
632. This approach has gained some favor on the Supreme Court, and,
according to one leading commentator, there is a "distinct possibility"
that Justice Scalia's position will eventually win the day. 3 LaFave,
supra, § 7.1(c), at 534. The Scalia approach would allow a search in this
case, and indeed evidence related to the crime of DUI was found.

FN19. The majority criticizes this rule by raising hypothetical questions
about its scope and extent, as if any legal rule was ever beyond debate.
In my opinion, this criticism is an application of the observation of
Justice Rehnquist that "[o]ur entire profession is trained to attack
'bright lines' the way hounds attack foxes." Robbins v. California, 453
U.S. 420, 443 (1981) (Rehnquist, J., dissenting).