United States v. Doward

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2249

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

JOHN R. DOWARD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Cyr and Stahl, Circuit Judges,

and DiClerico,* Chief District Judge.

Paul J. Garrity for appellant.

Jean L. Ryan, Assistant United States Attorney, with whom Paul M.

Gagnon, United States Attorney, was on brief.

December 14, 1994

*Of the District of New Hampshire, sitting by designation.

CYR, Circuit Judge. After entering a conditional plea
CYR, Circuit Judge.

of guilty, and reserving the right to appeal an earlier order

rejecting his motion to suppress a .38 caliber handgun seized

incident to his arrest, see Fed. R. Crim. P. 11(a)(2), defendant

John R. Doward was convicted and sentenced in the District of New

Hampshire on a one-count indictment charging possession of a

firearm by a convicted felon, see 18 U.S.C. 922(g)(1),

924(e)(1). Doward contends that a warrantless search of the

hatch area of the two-door Ford Mustang which he was driving

immediately before the arrest violated the Fourth Amendment. See

U.S. Const. amend. IV. We affirm the district court judgment.

I
I

BACKGROUND
BACKGROUND

The relevant facts are not in dispute. On October 18,

1992, Officers James Tareco and Robert Oxley of the Manchester

Police Department stopped the Ford Mustang after it made an

illegal turn. Ten minutes later, a routine license check dis-

closed that Doward was wanted in Ohio on an outstanding arrest

warrant. Doward was ordered out of the car, arrested, hand-

cuffed, and then placed in a nearby police cruiser, awaiting

transport to the police station.

Meanwhile, the male passenger in the right front seat

had been instructed to get out of the Ford Mustang and remain on

the sidewalk as the front and back seat areas were searched.

Although the hatch area was accessible from the back seat,

2

Officer Tareco chose to gain access by unlocking the hatch from

outside the vehicle. The hatch area was found to contain two

partially zipped suitcases. In the first suitcase he searched,

Tareco discovered a gun cleaning kit and ammunition.

During the search, Doward's daughter suddenly emerged

from the gathering crowd and informed Tareco that the Ford

Mustang belonged to her, but the suitcases did not. At this

point, the police van arrived and Doward was transported to the

station. Resuming the search, Officer Oxley seized the loaded

.38 caliber handgun from the second suitcase discovered in the

hatch area. Three minutes had elapsed since Doward's arrest;

thirty seconds since he was transported from the scene. Doward's

daughter was arrested shortly thereafter, when a further check

revealed that she too was wanted on an outstanding arrest war-

rant.

II
II

DISCUSSION
DISCUSSION

The government is required to establish that the hatch-

area search which yielded the .38 caliber handgun came within a

recognized exception to the Fourth Amendment warrant requirement.

See United States v. Jeffers, 342 U.S. 48, 51 (1951). The

government defends the search as "a contemporaneous incident of

[Doward's] arrest." See New York v. Belton, 453 U.S. 454, 460

(1981).

Doward argues that the search which yielded the handgun

3

was not sufficiently contemporaneous with his arrest because the

handgun was seized after he had been removed from the scene, at a

time when there was no conceivable risk that he could have

reached it. Thus, even if the handgun were the fruit of an

automobile passenger-compartment search commenced as a contem-

poraneous incident of his arrest, Doward would urge a per se

suppression rule as to any evidence seized after the arrestee has

been removed from the scene and the security rationale for the

Belton rule no longer obtains. See, e.g., State v. Badgett, 512

A.2d 160, 169 (Conn.) (holding that the right to continue a

Belton search "ceases the instant the arrestee departs the

scene"), cert. denied, 479 U.S. 940 (1986); State v. Fry, 388

N.W.2d 565, 577 (Wis.) (same), cert. denied, 479 U.S. 989 (19-

86).1 Alternatively, Doward argues that the hatch area was not

1Since Doward simply contrasts the present case with those
in which an arrestee remains in close proximity to the vehicle
and continues to pose at least some unpredictable, albeit slight,
risk to the security of the officers or the evidence (e.g.,

arrestee handcuffed in back of guarded police cruiser), we do not
understand him to challenge the great weight of authority which
holds that Belton's bright-line rule applies even in cases where

the arrestee is under physical restraint and at some distance
from the automobile during the search. See, e.g., United States

v. Jackson, 918 F.2d 236, 240 (1st Cir. 1990) (arrestee hand-

cuffed in police cruiser); United States v. White, 871 F.2d 41,

43 (6th Cir. 1989) (in police cruiser); United States v. Karlin,

852 F.2d 968, 970-71 (7th Cir. 1988) (handcuffed in police
cruiser), cert. denied, 489 U.S. 1021 (1989); United States v.

Cotton, 751 F.2d 1146, 1148 (10th Cir. 1985) (handcuffed);

United States v. Collins, 668 F.2d 819, 821 (5th Cir. 1982)

(same); see also Traylor v. State, 458 A.2d 1170, 1174 (Del.

1983) (outside car, handcuffed); State v. Wheaton, 825 P.2d 501,

502-03 (Idaho 1992) (handcuffed in police cruiser); State v.

Miskolczi, 465 A.2d 919, 920-21 (N.H. 1983) (same); State v.

Hensel, 417 N.W.2d 849, 852-53 (N.D. 1988) (same); State v.

Fladebo, 779 P.2d 707, 711-12 (Wash. 1989) (in cruiser); cf.

United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987) (citing

4

subject to a warrantless "contemporaneous" search incident to

arrest, because the hatch area is more akin to an automobile

trunk, which the Belton Court clearly differentiated from the

"passenger compartment." Consequently, he insists, the trial

court was required to conduct a post hoc analysis as to whether

either vehicle occupant could have reached into the hatch area

for a weapon or evidence.

Since Doward's arguments test the temporal and spatial

limits of the bright-line rule announced in Belton, its context

and rationale must be parsed exactingly at the outset. As a

general rule, a lawful custodial arrest may be accompanied by a

warrantless search not only of the arrestee's "person" but the

area within the arrestee's "immediate control" for "any

weapons that the [arrestee] might seek to use in order to resist

arrest or effect his escape [and jeopardize] . . . the officer's

safety," as well as for "evidence on the arrestee's person [or in

'the area into which an arrestee might reach in order to grab a

weapon or evidentiary items'] in order to prevent its concealment

or destruction . . . ." Chimel v. California, 395 U.S. 752, 762-

63 (1969) (invalidating, as overbroad, search of entire residence

in which owner was arrested) (emphasis added). Some years later,

in Belton, supra, the Court outlined the scope of the zone of

"immediate control," see Chimel, 395 U.S. at 763, in the context

of a warrantless security search of an automobile passenger

compartment conducted as a contemporaneous incident of the

United States v. Abel, 707 F.2d 1013, 1015 n. 3 (9th Cir. 1983)).

5

arrests of all its occupants. Belton upheld a warrantless search

of the entire "passenger compartment" against a claim that all

its occupants were outside the vehicle at the time of the search

thus, as a practical matter, no longer within "reach" of any

weapons, evidence or contraband located within the passenger

compartment. Belton, 453 U.S. at 460.

Alluding to the difficulties encountered by lower

courts in adapting for application to arrest-related automo-

bile searches the "immediate control" concept announced in

Chimel, the Belton Court's opinion stressed that its bright-line

rule was designed to foster both privacy and law enforcement

interests: "[T]he protection of the Fourth and Fourteenth

Amendments '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,'" id. at

458 (citation omitted) (emphasis added), especially since police

officers engaged in an arrest on the highway have "only limited

time and expertise to reflect on and balance the social and

individual interests involved in the specific circumstances they

confront." Id. at 458-59 (noting earlier Supreme Court cases

rejecting the view that "there must be litigated in each case the

issue of whether or not there was present one of the reasons

supporting the authority for a search of the person incident to a

lawful arrest") (citation omitted) (emphasis added).

The Belton Court explicitly predicated its bright-line

6

rule on "the 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].'" Id. at 460 (quoting Chimel, 395 U.S. at

763) (emphasis added). Against this pragmatic framework the

Court articulated its bright-line rule: "we hold 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

"examine the contents of any [open or closed] containers found

within the passenger compartment . . . ." Id. (footnote omitted)

(emphasis added).2 Finally, the scope of the "passenger com-

partment" under the bright-line rule announced in Belton would

not encompass the trunk. Id. at 460-61 n.4.

We think Belton leaves no doubt that post hoc analyses

like those presently urged by Doward are precluded. The Belton

majority's circumspect use of the discrete phrase "contemporane-

2The Belton bright-line rule likewise extends to any con-

tainer within the passenger compartment even though its outward
appearance might foreclose the possibility that it could hold a
weapon or evidence: "The authority to search the person incident

to a lawful custodial arrest, while based upon the need to disarm
and to discover evidence, does not depend on what a court may

later decide was the probability in a particular arrest situation

that weapons or evidence would in fact be found upon the person
of the suspect. A custodial arrest of a suspect based on proba-
ble cause is a reasonable intrusion under the Fourth Amendment;
that intrusion being lawful, a search incident to the arrest
requires no additional justification." Belton, 453 U.S. at 461

(citing United States v. Robinson, 414 U.S. 218, 235 (1973))

(emphasis added).

7

ous incident of that arrest," rather than the less expansive

phrase "contemporaneous with that arrest" as Doward would have

us read it plainly implies a greater temporal leeway between

the custodial arrest and the search than Doward advocates.

Moreover, the temporal limitation urged by Doward would undermine

Belton's bright-line rule by requiring courts to second-guess the

security assessments made by law enforcement officers at the

scene.3

Nor is the variant urged by Doward consonant with the

bright-line rule as the Court articulated it. Nothing in the

majority opinion even remotely implies that law enforcement

officers must discontinue a passenger-compartment search

properly initiated as a contemporaneous incident of an occupant's

arrest the instant the arrestee is transported from the scene.

As must be the usual case in automobile-related arrests, Belton

and the three passengers were no longer in the vehicle when the

automobile search began. Although their location outside the

vehicle virtually eliminated any chance that they could "reach"

3We need not consider whether the time span between an
automobile-related arrest and the initiation of a warrantless

search of the passenger compartment might become so protracted as
to raise judicial eyebrows in an exceptional case, see, e.g.,

United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987) (dis-

tinguishing invalid automobile search, occurring 30-45 minutes
after arrest, from searches which "followed closely on the heels
of the arrest"), since this is anything but an exceptional case.
The officers initiated the three-minute contemporaneous search

immediately after Doward was placed under arrest, and completed
it within thirty seconds after he was transported from the scene.

Compare United States v. Lugo, 978 F.2d 631, 634 (10th Cir. 1992)

(invalidating search initiated after arrestee left scene) with

United States v. McCrady, 774 F.2d 868, 871-72 (8th Cir. 1985)

(upholding search initiated after arrestee left scene).

8

into the passenger compartment for any purpose, the Court con-

spicuously passed up the opportunity to limit its bright-line

rule by requiring that the warrantless search cease once all

occupants were removed from the passenger-compartment.4 In-

stead, the Belton majority opted to relax Chimel's residence-

related arrest rationale in automobile-related arrests lest its

fact-intensive inquiries immerse the courts in second-guessing

security decisions made by law enforcement officers in rapidly

evolving circumstances fraught with unpredictable risks to life

and limb. See, e.g., United States v. Karlin, 852 F.2d 968, 971

(7th Cir. 1988) (hindsight-based probability determinations would

eviscerate Belton bright-line rule); see also United States v.

McCrady, 774 F.2d 868, 871-72 (8th Cir. 1985) (upholding search

initiated after arrestee had left the scene).5

4Indeed, as the dissent noted, see Belton, 453 U.S. at 468

(Brennan, J., dissenting), "the result would presumably be the
same even if [the police officer] had handcuffed Belton . . . in
the patrol car . . . ." See also supra note 1.

5Although such considerations are not determinative, the
unpredictable developments ultimately confronting the officers in
this case clearly vindicate the Belton rationale. The male

passenger in the Ford Mustang remained in close proximity to the
vehicle during the arrest and the ensuing search. Moreover,
Doward's daughter, who also unbeknownst to the officers was
subject to an outstanding arrest warrant, unexpectedly approached
the officers from out of the gathering crowd. With only two
officers available to search the vehicle and deal with this
potentially dangerous situation, a decisional rule which would
require judicial second-guessing of the need to continue the
passenger-compartment search after Doward had been transported
from the scene would eviscerate Belton's bright-line rule.

Furthermore, the Belton rationale would be undermined were a

temporal limit to be drawn, as Doward urges, after Officer

Tareco's valid warrantless search of the first suitcase had
disclosed the gun cleaning kit and ammunition, which afforded
reasonable cause to believe that the passenger compartment would

9

Doward further contends, in the alternative, that the

hatch area was not subject to contemporaneous search under the

bright-line rule announced in Belton, as it is more akin to an

automobile trunk, which Belton was careful to differentiate from

the "passenger compartment." See Belton, 453 U.S. at 460-61 n.4.

Consequently, he argues, the district court was required to

determine whether any vehicle occupant could have reached into

the hatch area while inside the Ford Mustang. And he asks this

court to take judicial notice that the Ford Mustang hatchback he

was driving had large interior dimensions which would make it

impossible to reach into the hatch area from his position in the

front seat.

We believe Belton unmistakably forecloses all such post

facto inquiries on actual "reachability." As we have noted, the

Court expressly predicated its bright-line rule on "the general-

ization 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].'"

Id. at 461 (citation omitted) (emphasis added). Thus, the only

question the trial court asks is whether the area searched is

generally "reachable without exiting the vehicle, without regard

to the likelihood in the particular case that such a reaching was

possible." 3 Wayne R. Lafave, Search and Seizure: A Treatise on

be found to contain a loaded firearm, a core concern undergirding
both Chimel and Belton.

10

the Fourth Amendment 7.1(c), at 16-17 (2d ed. 1987) (collecting

cases) (emphasis added). The uncovered hatch area in this two-

door Ford Mustang unlike a trunk generally is accessible

from within the passenger compartment. Consequently, it is

immaterial to the present analysis that the police elected to

gain access by opening the outside lock on the hatch.

The district court judgment is affirmed.
The district court judgment is affirmed.

11