State v. Dean

                    SUPREME COURT OF ARIZONA
                              En Banc

STATE OF ARIZONA,                  )   Arizona Supreme Court
                                   )   No. CR-02-0427-PR
                         Appellant,)
                                   )   Court of Appeals
               v.                  )   Division One
                                   )   1 CA CR 01-0827
DONALD GENE DEAN,                  )
                                   )   Maricopa County
                          Appellee.)   Superior Court
                                   )   No. CR-01-002813
                                   )
                                   )   O P I N I O N
                                   )

        Appeal from the Superior Court in Maricopa County
              The Honorable Robert A. Budoff, Judge
                             AFFIRMED


          Opinion of the Court of Appeals, Division One
                203 Ariz. 408, 55 P.3d 102 (2002)
                             VACATED


TERRY GODDARD, ATTORNEY GENERAL                             Phoenix
     By   Randall M. Howe, Chief Counsel,
          Criminal Appeals Section
     and Billie A. Rosen, Section Chief Counsel
          Drug Enforcement and Violent Crimes Section
Attorneys for Appellant

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER              Phoenix
     By   Garrett W. Simpson, Deputy Public Defender
Attorneys for Appellee


H U R W I T Z, Justice

¶1        We granted review in this case to address a recurring

Fourth Amendment issue — whether the search of an automobile is

“incident” to the arrest of a defendant.        In this case, the
search occurred after the defendant was arrested in a house,

some two and one-half hours after he had exited the vehicle.

The    superior       court    held     that     the    search    violated      the    Fourth

Amendment;       the    court      of      appeals     reversed.       For   the      reasons

below, we hold that the superior court correctly found that the

search in this case did not fall within the “search incident to

arrest” exception to the Fourth Amendment’s warrant requirement.

                                                I.

¶2            On February 7, 2001, Phoenix police officers received

a tip that Donald Dean, the subject of two felony drug arrest

warrants,       was    residing       at    a   house    on    East    Cholla    Street    in

Phoenix.        The police set up surveillance of the house and, at

about    6:00    p.m.,    observed          a   Jeep    Grand    Cherokee    leaving      the

residence,       driven       by    a      person      fitting     Dean’s    description.

Several officers followed the Jeep in a marked patrol car; after

a    short    time,    the     officers         activated      their   overhead       lights.

Dean, who was in fact driving the Jeep, did not pull over, but

instead returned to the East Cholla residence and parked in the

driveway.       He jumped out of the Jeep, leaving the keys in the

ignition, and ran into the garage of the house.                                 One of the

officers then took the keys from the Jeep.

¶3            The officers on the scene summoned a tactical team

from    the     Phoenix       Special       Assignment        Unit.     After    obtaining

permission from the owner of the house, the tactical team went



                                                 2
inside.        The team eventually found Dean hiding in the attic,

arrested him, and took him to a waiting patrol car.

¶4             Dean’s arrest occurred approximately two and one-half

hours after he fled the Jeep.                After Dean was arrested, officers

searched       the     Jeep    and     discovered            methamphetamine           in    the

passenger      compartment.          Based       on    this     discovery,       the     police

obtained a warrant to search the residence and, in executing

that       warrant,           discovered             additional         quantities               of

methamphetamine,         marijuana,         drug       paraphernalia,        and    weapons.

Dean was subsequently charged with possession of equipment or

chemicals for the manufacture of dangerous drugs, possession of

dangerous drugs for sale, and possession of drug paraphernalia.

¶5             Dean filed a motion in the superior court to suppress

all evidence seized from the Jeep, alleging unlawful search and

seizure.        The superior court granted the motion to suppress.

The    trial     court    rejected         the       State’s    contentions        that      the

vehicle     was      abandoned       and    that       the     search   was       simply         an

administrative inventory of the vehicle contents.                            The superior

court also rejected the State’s argument that the warrantless

search of the Jeep was incident to Dean’s arrest, noting that

“[t]he    arrest       took    place   two       and    a    half    hours       later      at   a

different location.”

¶6             The    State     timely       appealed          the   suppression            order

pursuant    to       Arizona   Revised      Statutes         (“A.R.S.”)      §     13-4032(6)



                                                 3
(2001).     The court of appeals reversed, holding that the Jeep

search fell within the “incident to arrest” exception to the

Fourth    Amendment’s       warrant        requirement.              State    v.    Dean,       203

Ariz. 408, 409 ¶ 1, 55 P.3d 102, 103 (App. 2002).                                 The court of

appeals reasoned that because the police could have searched the

vehicle    incident       to   an    arrest          if    Dean     had    been    apprehended

either inside the vehicle or directly outside of it, Dean could

not “evade a search by leaving the vehicle before the officers

arrest him.”       Id. at 411 ¶ 10, 55 P.3d at 105.

¶7          Dean     filed     a    petition           for       review,    and    we    granted

review to address the applicability of the “incident to arrest”

exception to the warrant requirement in this situation.                                  We have

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

Constitution,      Arizona        Rule    of     Criminal         Procedure       31.19(c)(3),

and A.R.S. §§ 13-4032(6) and -4033(A)(2) (2001).

                                               II.

¶8          The      Fourth          Amendment              to     the      United        States

Constitution,       made    applicable           to       the    States    through       the    Due

Process    Clause    of     the     Fourteenth            Amendment,       protects      against

“unreasonable searches and seizures,” and provides that search

warrants    shall    be     issued        only       upon       “probable    cause.”           U.S.

Const.    amend.    IV.        Searches          conducted         without    a     judicially

approved    warrant        “are     per    se        unreasonable         under    the    Fourth

Amendment — subject only to a few specifically established and



                                                 4
well-delineated exceptions.”                 Katz v. United States, 389 U.S.

347,       357    (1967)      (internal     citations    omitted).        The     State

suggests         that   the   warrantless     search    of   Dean’s     Jeep    can   be

justified by virtue of three of those “exceptions”:                      (1) because

the    Jeep       was    “abandoned”;       (2)    because   the    search      was   an

administrative “inventory” of its contents; and (3) because the

search was “incident” to Dean’s arrest.1

                                             A.

¶9               The    State’s     first    two    arguments      do   not     require

extended discussion.              The superior court specifically found that

the Jeep, which was parked in the driveway of Dean’s residence,

was not abandoned.             In reviewing an order involving a motion to

suppress, we review the facts in the light most favorable to

sustaining the order, and will not disturb the trial court’s

ruling absent “clear and manifest error.”                     State v. Hyde, 186

Ariz. 252, 265, 921 P.2d 655, 668 (1996).                    See State v. Jones,

203 Ariz. 1, 5 ¶ 8, 49 P.3d 273, 277 (2002) (“Clear and manifest

error . . . is really shorthand for abuse of discretion.”).                           We

find no such error here.



       1
          While Dean argues that the search in this case
violates both the Fourth Amendment and Article 2, Section 8 of
the Arizona Constitution, he presents no separate arguments
based on the state constitutional provision.      We therefore
address his claim only under the United States Constitution.
See State v. Nunez, 167 Ariz. 272, 274 n.2, 806 P.2d 861, 863
n.2 (1991).


                                             5
¶10         The    State’s     attempt      to        justify    the    search    as    an

“inventory” of the Jeep fails on similar grounds.                         While police

have the power to perform a warrantless “administrative” search

of an impounded vehicle for “community caretaking functions,”

see South Dakota v. Opperman, 428 U.S. 364, 368 (1976), such a

search    must    be   “routine,”     and       not    “a   pretext      concealing     an

investigatory police motive.”                   Id. at 376.         The officer who

conducted the search of the Jeep testified at the suppression

hearing that his purpose was “to search for evidence.”                          In light

of that testimony, the superior court did not err in concluding

that the search was not an administrative inventory.2

                                         B.

¶11         We    therefore    turn    to       the    only     remaining   applicable

justification      for   the    warrantless            search    here,    the    “search

incident to arrest” exception.                   In Chimel v. California, 395

U.S. 752 (1969), the Supreme Court explained both this exception

and   its   justifications.           Chimel          involved    the    arrest    of    a

defendant inside his home and the subsequent warrantless search


      2
          Nor does this case involve the so-called “automobile”
exception to the warrant requirement of the Fourth Amendment.
Under that exception, searches of vehicles may be allowed absent
a warrant if the police have “probable cause” to do so.      See
Chambers v. Maroney, 399 U.S. 42 (1970).     The State candidly
conceded at oral argument that the record in this case does not
establish probable cause for the search of the Jeep, and thus
did not argue in this court that the “automobile” exception
applies.



                                            6
of the home.       The California Supreme Court upheld the search as

“incident to a valid arrest.”                  Id. at 755.          In an opinion by

Justice      Stewart,      the   Supreme       Court       of     the    United      States

reversed.

¶12          Chimel began from the premise that when a search is

conducted without a warrant, “[t]he scope of [a] search must be

‘strictly     tied    to   and   justified       by’       the   circumstances        which

rendered its initiation permissible.”                  Id. at 762 (alteration in

original) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)).                              When

a   search    is   conducted     incident        to    a    valid       arrest,     Justice

Stewart explained, two sets of circumstances justify departure

from the general warrant requirement:

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

Id. at 763.

¶13          Chimel     taught   that   these         twin       aims    of   the    search

incident to arrest exception — officer safety and preservation

of evidence — provide “ample justification” for a warrantless




                                           7
search    “of    the    arrestee’s            person       and   the    area     ‘within      his

immediate control’ — construing that phrase to mean the area

from    within   which        he    might       gain       possession    of    a    weapon     or

destructible evidence.”               Id.        The search in Chimel was of the

defendant’s entire house, taking between forty-five minutes and

an hour after the arrest.                     Because the search “went far beyond

the petitioner’s person and the area from within which he might

have obtained either a weapon or something that could be used as

evidence    against        him,”      the       Court       held    that      there     was    no

constitutional         justification            for    departing        from     the    general

warrant requirement and that the search was unreasonable under

the Fourth Amendment.              Id. at 768.

                                                C.

¶14         Under       the        rule       announced       in    Chimel,        determining

whether a particular area in which evidence was found was within

an arrestee's "immediate control" required an examination of the

facts and circumstances surrounding each arrest.                               This case-by-

case    analysis    “presented            a    significant         burden   to     courts     and

police” when the arrest occurred in or near an automobile and

police had to decide at the time of the arrest which portions of

the    automobile      were    within          the    arrestee’s       immediate        control.

Glasco v. Commonwealth, 513 S.E.2d 137, 143 (Va. 1999) (Lacy,

J., concurring).           In New York v. Belton, 453 U.S. 454 (1981),

the    Supreme     Court      recognized             the    problem,     noting        that   the



                                                 8
“courts have found no workable definition of the ‘area within

the immediate control of the arrestee’ when that area arguably

includes the interior of an automobile and the arrestee is a

recent occupant.”        Id. at 460 (quoting Chimel, 395 U.S. at 763).

Because    a    “‘single   familiar   standard        is   essential    to    guide

police officers,’” id. at 458 (quoting Dunaway v. New York, 442

U.S.   200,     213-14   (1979)),   the       Court   undertook   in    Belton   to

establish such a “workable rule.”              Id. at 460.

¶15            Belton arose from the stop of a speeding vehicle on

the New York State Thruway.                The police officer stopped the

vehicle and, after examining the registration, discovered that

none of the four men inside owned the vehicle or was related to

its owner.       The officer also smelled burnt marijuana and saw an

envelope marked “Supergold” on the floor of the vehicle.                         He

then removed the four individuals from the vehicle, separated

them, and searched the vehicle.                In the back seat he found a

leather jacket belonging to Belton; inside a zipped pocket, the

officer discovered cocaine.         Id. at 455-56.

¶16            The New York Court of Appeals held that because there

was no danger that the arrestee or his confederates could gain

access to the “zippered pockets of an unaccessible jacket,” id.

at 456, the search exceeded the scope justified by the twin

goals of the Chimel exception and was not validly incident to

Belton’s       arrest.     The   Supreme      Court   reversed.        Once   again



                                          9
writing   for     the   Court,   Justice         Stewart    noted    that   “articles

inside 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

ite[m].’”    Id. at 460 (quoting Chimel, 395 U.S. at 763)).                         The

Court therefore 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” and any containers found within

the passenger compartment.            Id.

¶17         The    “bright-line”       rule       established       in   Belton     thus

relieved police officers from a case-by-case justification as to

whether   the     entire   passenger         compartment      of     a   vehicle,    as

opposed to only a portion of the compartment, was within the

“immediate      control”   of    an    arrestee       who    had     been   a   recent

occupant of the vehicle.              But, although Belton provided clear

guidance with respect to this spatial limitation on the incident

to arrest exception in the context of a vehicle search, it did

not specifically address a number of other questions.                             While

noting that it was undertaking to provide some clarity as to the

scope of a search incident to arrest when the defendant was a

“recent occupant” of a vehicle, id. at 460, the Court did not

undertake to define recent occupancy, other than to note in the

case before it that the search occurred immediately after the



                                            10
arrest and that Belton was a passenger in the car “just before

he was arrested.”            Id. at 462.           And, while stating generally

that    “a     lawful      custodial    arrest      creates       a    situation   which

justifies the contemporaneous search without a warrant of the

person arrested and of the immediately surrounding area,” id. at

461, Justice Stewart did not purport to set forth any rule as to

where the arrestee must be located in relation to the vehicle at

the time of arrest in order to justify a warrantless search of

the passenger compartment.              Again, this was likely because the

defendant in Belton was in close proximity to the car at the

time of arrest.         See id. at 456.

¶18            Justice Stewart made plain in Belton, however, that

the    Court    was   not    retreating      from    Chimel,      but    rather    simply

applying its principles to the particular problem before it.

See Belton, 453 U.S. at 460 n.3 (“[Belton] in no way alters the

fundamental principles established in the Chimel case regarding

the    basic     scope      of    searches    incident       to       lawful   custodial

arrests.”).       Thus, Belton carefully distinguished cases such as

United    States      v.    Chadwick,   433       U.S.   1   (1977),     in    which   the

search of a footlocker occurred an hour after federal agents

gained exclusive control of the item and after the defendants

were securely in custody, and Arkansas v. Sanders, 442 U.S. 753

(1979), which involved a suitcase in the trunk of a taxicab and

thus    not     within      the   defendant’s       “immediate         control.”       See



                                             11
Belton,   453        U.S.   at     461-62.       In    each    case,     Justice      Stewart

emphasized, there was no “arguably valid search incident to a

lawful custodial arrest.”                Id. at 462.

                                              D.

¶19            Because      neither       Belton      nor     any   subsequent        Supreme

Court case has defined just when a defendant is a sufficiently

“recent occupant” of a vehicle so as to allow a search incident

to    arrest    of    the    vehicle’s       passenger        compartment,          state    and

federal courts have struggled to find a workable definition of

the    term.         One    line    of    cases       has   focused      on    the    Court’s

statement       in    Belton       that    its     holding      was      limited      to     the

“particular and problematic context” before it.                                Belton, 453

U.S. at 460 n.3.            Noting that the police officer in Belton had

ordered the driver of the vehicle to stop before the arrest

occurred, see id. at 455, a number of courts have focused on

whether the police had initiated contact with the arrestee while

he was still in the vehicle.

¶20            United States v. Hudgins, 52 F.3d 115 (6th Cir. 1995),

exemplifies this approach.                   Hudgins held that as long as the

police officer “initiates contact” with a defendant “by actually

confronting the defendant or by signaling confrontation with the

defendant, while the defendant is still in the automobile,” and

the    defendant       is    subsequently          arrested,        “a   search       of     the

automobile’s         passenger      compartment        falls    within        the    scope    of



                                              12
Belton    and    will   be   upheld      as   reasonable.”       Id.   at   119.

Conversely, if the defendant voluntarily left the automobile and

began walking away before the police officer initiated contact,

“the case does not fit within Belton’s bright-line rule, and a

case-by-case analysis of the reasonableness of the search under

Chimel becomes necessary.”         Id.

¶21           Under   this   approach,    which   views   a   defendant     as   a

“recent occupant” of a vehicle for purposes of the Belton rule

only when the police initiated contact when the arrestee was

still in the vehicle, state and federal courts have found Belton

inapplicable when the defendant left the vehicle before such

contact, even when the arrest occurred in close proximity to the

car.     See, e.g., United States v. Strahan, 984 F.2d 155 (6th

Cir. 1993); United States v. Fafowara, 865 F.2d 360 (D.C. Cir.

1989); State v. Thomas, 761 So. 2d 1010 (Fla. 2000); People v.

Fernegel, 549 N.W.2d 361 (Mich. Ct. App. 1996); Commonwealth v.

Santiago, 575 N.E.2d 350 (Mass. 1991).                 Division Two of our

court    of   appeals   recently   adopted     this   approach   in    State     v.

Gant, 202 Ariz. 240, 244-45 ¶ 11, 43 P.3d 188, 192-93 (App.

2002), cert. granted, 123 S. Ct. 1784 (2003).

¶22           In Gant, the defendant had arrived in his car at a

residence at which police already were present.               Recognizing the

defendant as someone wanted on an outstanding warrant and whose

license was suspended, an officer arrested him after he exited



                                         13
his vehicle.         The officer then searched the vehicle, discovering

a weapon and cocaine inside the car.

¶23            The superior court held the search lawful as conducted

incident to Gant’s arrest, but the court of appeals reversed.

The court of appeals started from the proposition that the rule

announced       in   Belton    was     limited       to    the   “particular       factual

situation in which it arose.”                 Id. at 244 ¶ 11, 43 P.3d at 192.

Because the police officer in Belton had initiated contact with

the defendant while the defendant was still in the automobile,

Gant     concluded          that     Belton        applied       only     under         those

circumstances — when “the officer initiates contact with the

defendant, either by actually confronting the defendant or by

signaling confrontation . . . while the defendant is still in

the     automobile.”           Id.    (quoting        Hudgins,      52    F.3d     at    119

(alteration in original)).

¶24            In Gant, the police officer had not initiated contact

while    the    defendant      was    still    in    the     vehicle;     the    defendant

drove the vehicle to the home where the officer already was

present,       and    the     confrontation          first       occurred       after    the

defendant left the car.               Id. at 242-43 ¶ 3, 43 P.3d at 190-91.

Applying       its   interpretation       of       Belton,    the   court    of    appeals

invalidated the search.              Id. at 246 ¶ 15, 43 P.3d at 194.

¶25            In    dictum,       Gant   “emphasize[d]           that,     when    police

attempt to initiate contact by either confronting or signaling



                                              14
confrontation,          a        vehicle’s    occupant     cannot   avoid   Belton’s

application and create a haven for contraband by simply exiting

the vehicle when officers are seen or approach.”                      Id. at 244-45

¶   11,    43    P.3d       at    192-93.       Under    such   circumstances,   Gant

suggested, the search is incident to an arrest when the suspect

is “subsequently arrested.”                  Id. at 245 ¶ 11, 43 P.3d at 193.

¶26             Adopting the Gant dictum, the court of appeals in this

case held that the search of the vehicle was incident to Dean’s

arrest, notwithstanding that the arrest occurred long after he

left the vehicle and when he was inside the house, because he

fled the vehicle when the police approached after initiating

contact:

          Dean cannot evade the search of the Jeep and the
          discovery of contraband in his vehicle by parking
          the Jeep and running into a house as soon as he
          is confronted by a police officer.     The search,
          therefore, was incident to his arrest . . . .

Dean, 203 Ariz. at 412 ¶ 12, 55 P.3d at 106.                          The court of

appeals reasoned that had Dean not fled the car at the approach

of the police, he would have been arrested in or near the car,

and any subsequent search of the vehicle would then have been

plainly incident to the arrest.                  Id. at 412 ¶¶ 11-12, 55 P.3d at

106.      Because both the time between Dean’s exit of the vehicle

and arrest, and his distance from the vehicle at the time of the

arrest resulted from Dean’s “attempt to evade” police, the court




                                               15
of appeals held that he could not “evade” the warrantless search

of the Jeep.         Id. at 412 ¶ 12, 55 P.3d at 106.

                                               E.

¶27         The analytic approach taken by the court of appeals in

this case and in Gant, under which the applicability of the

Belton   rule        turns   entirely       on      whether    the     police     initiated

contact with the arrestee while he was still in the vehicle, is

not supported by the rationale of either Belton or Chimel.                                  The

search incident to arrest exception explicated in Belton and

Chimel was      designed      to    protect         officer    safety     and    avoid      the

destruction of evidence.             A suspect arrested next to a vehicle

presents    the       same    threat      to        officer    safety     and     the      same

potential      for    destruction      of      evidence       whether    or     not   he    was

alerted prior to arrest of the police’s interest in him.                                   Yet,

under the approach Gant adopted from Hudgins and its progeny,

the   police      would      be    able     to       search    the     entire     passenger

compartment of the automobile only if they initiate contact with

a passenger while the suspect is in the vehicle; in all other

cases,   the    Chimel       “immediate        control”       test    would     apply.       It

makes no sense to have two different rules applicable to arrests

occurring in what is for all relevant intents and purposes the

same situation.

¶28         Moreover,        the   singular          focus    on     whether    the     police

initiated contact before the defendant departed the vehicle runs



                                               16
counter to one of the purposes underlying Belton.                          The Supreme

Court sought in that case to create a workable definition of the

area within the “immediate control” of a recent occupant of a

vehicle,     both    to     provide    a       “familiar    standard”       to    police

officers and to avoid case-by-case litigation as to whether the

entire passenger compartment, or only a portion thereof, was

within the scope of a search incident to arrest.                           See Belton,

453   U.S.    at    458-60.      But,       by    defining       “recent    occupancy”

entirely in terms of whether the defendant was formally made

aware of the police presence before leaving the vehicle, Gant

and the opinion below would return the courts to the very sort

of inquiry that Belton abjured in every case in which contact

was not so initiated before the arrest.3

¶29          For    these    reasons,      a     number    of    courts    have       found

initiation     of     contact     by       the     police       irrelevant       to    the

determination whether an arrestee was a “recent occupant” of a

vehicle under Belton.          See, e.g., United States v. Thorton, 325


      3
          Michigan v. Long, 463 U.S. 1032 (1983), suggests in
dictum that the Supreme Court did not mean to limit Belton to
cases in which the police initiated contact while the defendant
was in the vehicle.    That case involved a defendant who met
police officers at the scene of an accident, where his vehicle
had swerved off the road into a ditch.        In that case, in
upholding a search of the vehicle under the principles set forth
in Terry v. Ohio, 392 U.S. 1 (1968), the Court also specifically
noted that if the officers had arrested the defendant for
various traffic violations, they could have searched the
passenger compartment of the car under Belton.    Long, 463 U.S.
at 1035 n.1.


                                           17
F.3d 189, 194-95 (4th Cir. 2003); United States v. Sholala, 124

F.3d 803, 817 (7th Cir. 1997); Glasco, 513 S.E.2d at 141-42; see

also Gant, 202 Ariz. at 244 n.3, 43 P.3d at 192 n.3 (recognizing

a     split    in    authority    and    collecting        cases   rejecting      the

“initiating contact” construction of Belton).                  We agree with the

general analytical approach taken in these decisions.                         Belton

made clear that its holding “in no way alters the fundamental

principles established in the Chimel case.”                  Belton, 453 U.S. at

460 n.3.       Thus, the appropriate inquiry focuses on the critical

factors of when and where the custodial arrest took place.                       “[A]

search can be incident to an arrest only if it is substantially

contemporaneous with the arrest and is confined to the immediate

vicinity of the arrest.”             Stoner v. California, 376 U.S. 483,

486 (1964).

¶30            The    correct    rule,   we   believe,      was    stated   by    the

Supreme Court of Virginia in Glasco.                  In upholding a vehicle

search as incident to a lawful arrest, the Virginia court stated

that a defendant is “a recent occupant of a vehicle within the

limits    of    the    Belton    rule”   when   he    is    arrested    “in      close

proximity to the vehicle immediately after the [defendant] exits

the automobile.”          Glasco, 513 S.E.2d at 142.               While concepts

such a “close proximity” and “immediately after” are of course

subject to factual analysis, they directly correspond to the

rationales behind the search incident to arrest exception, which



                                         18
is designed to protect officer safety and preserve evidence.                                            At

the   same    time,      the      Glasco         test    is    faithful         to     the       general

notions that the Fourth Amendment disfavors warrantless searches

and   that    any     exceptions            to    that       general      rule        are       narrowly

limited in light of their underlying justifications.

¶31           In    determining          whether         a    search      was     “substantially

contemporaneous”           with    an       arrest       of    a       recent    occupant          of   a

vehicle, the courts have reached a wide variety of results under

a broad array of factual circumstances.                                 Compare, e.g., United

States   v.        Arango,      879     F.2d      1501,        1504-07         (7th       Cir.    1989)

(upholding     a     search       of    a   defendant’s             car   as     incident         to    an

arrest made of the defendant after he walked nine blocks away

from the vehicle), with United States v. Vasey, 834 F.2d 782,

787-88   (9th       Cir.     1987)       (invalidating             a    search       of     a   vehicle

occurring     thirty       to     forty-five           minutes         after    the       defendant’s

arrest); see also United States v. Strahan, 984 F.2d 155, 159

(6th Cir. 1993) (holding that an arrestee was not a “recent

occupant”     of     a     vehicle       when      arrested            thirty    feet       from       the

vehicle);     People       v.     Saverda,         907       P.2d      596,     599    (Col.       1995)

(holding an arrestee to be a “recent occupant,” despite a five-

minute lapse in time between the arrestee exiting the vehicle

and the subsequent search); Gauldin v. State, 683 S.W.2d 411,

414   (Tex.    Crim.       App.        1984)     (holding          that    defendant            who    had

parked truck and was sitting inside a restaurant when confronted



                                                  19
by police was not a “recent occupant” of a truck); State v.

Vanderhorst, 419 So. 2d 762, 764 (Fla. Dist. Ct. App. 1982)

(finding defendant no longer a recent occupant where he had left

his car, walked three miles home, requested a ride back to the

car, and was attempting to rescue the car when police arrived).

But we have been able to discover no case, and the State has

cited none, in which a search of the passenger compartment of a

vehicle was upheld under Belton when the driver was arrested as

long after he left the vehicle and as far from vehicle as was

the defendant here.

¶32         Under any reasoned analysis, Dean simply was not a

“recent occupant” of the Jeep for Belton purposes when he was

arrested.    He had not occupied the vehicle for some two and one-

half hours, and his arrest occurred not in close proximity to

the car, but instead inside the house.             Under the circumstances

of this case, neither of the justifications for a warrantless

search of the vehicle — protection of the arresting officers and

preservation of evidence — is present.

¶33         While     the   bright-line     rule    announced       in   Belton

relieves the police of demonstrating that a particular portion

of the passenger compartment is within the “immediate control”

of an arrestee, it does not purport to dispense with all such

analysis as to whether the police may search the vehicle at all.

Here,   given   the   physical   distance    of    the   arrestee    from   the



                                    20
vehicle at the time of arrest and the long lapse of time between

the arrest and Dean’s exit from the vehicle, the search simply

cannot be characterized as “incident” to the arrest and excepted

from the general requirement that a warrant be obtained.

¶34              We    therefore    hold     that    when,    as    here,     the    arrest

occurs long after the defendant had left the vehicle and far

from       the    vehicle,      the   warrant        requirement        of    the    Fourth

Amendment applies.              Because, as Chimel and Belton teach, the

Constitution requires a warrant except under those exigencies

that allow otherwise, the issue is not whether the defendant has

“evaded” a search by departing the vehicle, but rather whether

the totality of the facts still presents the kind of situation

that justifies dispensing with the warrant requirement.4                            In this

case, the facts do not support such a result.

                                             IV.

¶35              For    the    foregoing     reasons,        we    conclude     that    the

warrantless           search   of   Dean’s    Jeep    cannot       be   justified      as   a

       4
          Whether the defendant “fled” the vehicle is no more
relevant to the Belton analysis than a defendant’s flight from a
home would be relevant to the determination of whether a search
of that home after the defendant was arrested miles away was
incident to that arrest.     Indeed, by its very nature, flight
from the vehicle tends to minimize the dual concerns that
underlie the search incident to arrest exception — police safety
and protection of evidence. Flight may, of course, be relevant
to establish other exceptions to the Fourth Amendment warrant
requirement, such as whether the defendant has abandoned the
vehicle, whether an administrative inventory of the vehicle is
necessary, or whether sufficient probable cause exists to
justify a warrantless search under the automobile exception.


                                              21
search incident to arrest.       Accordingly, we vacate the opinion

of the court of appeals and reinstate the order of the superior

court suppressing the evidence seized in this search.           This case

is   remanded   to   the   superior    court   for   further   proceedings

consistent with this opinion.




                                  Andrew D. Hurwitz, Justice



CONCURRING:


                                           _
Charles E. Jones, Chief Justice


                              ______
Ruth V. McGregor, Vice Chief Justice


                                           _
Rebecca White Berch, Justice


                                           _
Michael D. Ryan, Justice




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