Glasco v. Commonwealth

Present: All the Justices

TODD M. GLASCO

v. Record No. 980909 OPINION BY JUSTICE CYNTHIA D. KINSER
February 26, 1999
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

After a bench trial on December 5, 1996, Todd M.

Glasco was convicted in the Circuit Court of the City of

Newport News of possession of cocaine with intent to

distribute, in violation of Code § 18.2-248, and possession

of a firearm while in possession of cocaine, in violation

of Code § 18.2-308.4. 1 We granted Glasco this appeal on a

single issue regarding the legality of a search of the

passenger compartment of his vehicle incident to his

arrest. Because we conclude that he was a recent occupant

of the vehicle prior to his arrest, we will affirm the

judgment of the Court of Appeals finding that the search

was lawful.

I.

1
The trial court sentenced Glasco to 12 years
imprisonment, 9 years suspended, on the conviction for
possession of cocaine with intent to distribute; and five
years imprisonment, 4 and one-half years suspended, on the
conviction for possession of a firearm.
 On May 4, 1996, around 11:00 o’clock p.m., Wesley T.

Filer, a uniformed police officer for the City of Newport

News, was on duty and patrolling in a marked police vehicle

when he observed a vehicle that he suspected was being

operated by Glasco. Filer was familiar with both the

vehicle and Glasco because of a recent encounter with

Glasco. Filer had arrested Glasco on an outstanding capias

for failure to pay traffic fines approximately two weeks

prior to this particular evening. Based on his knowledge

that a driver’s failure to pay fines normally resulted in

suspension of that person’s operator’s license and given

his previous arrest of Glasco, Filer suspected that

Glasco’s license to operate a motor vehicle had been

suspended. However, Filer decided not to stop the vehicle

at that time. Instead, he chose to follow the car so that

he could determine whether Glasco was, in fact, the driver.

While following the vehicle, Filer contacted his

dispatcher and requested that a check be made with the

Division of Motor Vehicles (DMV) in order to determine the

status of Glasco’s operator’s license. Before Filer

received a response to his request, Glasco pulled his

vehicle over to the right-hand side of the street and

legally parked it there. Glasco then got out of the

vehicle and began to walk toward a house on the other side

2
of the street. At that point, Filer stopped his police

cruiser approximately 20 to 30 feet behind Glasco’s

vehicle. After activating his rear strobe light and

exiting his police car, Filer called out, “Mr. Glasco, you

don’t have a valid license, do you?” According to Filer,

Glasco then turned around and began walking toward Filer,

at which time Glasco answered, “Come on, Filer, can’t you

just give me a break?” Filer requested Glasco to show some

form of identification. Glasco produced a Virginia

identification card but no operator’s license. In the

meantime, Filer learned, based on the check with DMV, that

Glasco’s operator’s license was, in fact, suspended. Thus,

he charged Glasco with “driving under suspension” and

placed him under arrest.

Incident to the arrest, Filer searched Glasco’s person

and found two small bags containing marijuana in the right,

front pocket of Glasco’s shorts. He also found $650 in

cash and a pager on Glasco’s person. Filer then put Glasco

in the backseat of his police vehicle and asked a backup

police officer, John V. Polak, to search Glasco’s car.

During this search, Polak found a .38 caliber handgun in

the pocket of the driver’s door and a clear, plastic bag

containing, what he thought was and later, when analyzed,

3
proved to be, crack cocaine under the floor mat on the

driver’s side of the vehicle.

At a hearing before the trial court on a motion to

suppress the evidence found during the search of the

vehicle, Filer admitted that he “had no probable cause to

believe” that there was any contraband or narcotics in the

vehicle when he asked Polak to search it. He did, however,

assert that he had a “hunch there might be some narcotics

located in the vehicle” based on information that he had

received in the past regarding Glasco’s involvement with

narcotics, and because he had recovered narcotics from his

person. The trial court concluded that, once Filer found

drugs in Glasco’s pocket, there was “probable cause to

believe possibly there [were] narcotics in the vehicle.”

Accordingly, the court overruled Glasco’s motion to

suppress the evidence recovered during the search of the

vehicle.

Before the Court of Appeals, Glasco challenged the

sufficiency of the evidence to support his convictions and

the legality of both the initial encounter with the police

officer and the subsequent search of his vehicle incident

to his arrest. With regard to the issue before this Court,

the Court of Appeals concluded that the search of Glasco’s

automobile incident to arrest was lawful because it was

4
“contemporaneous with the arrest and the arrestee’s recent

occupancy of the vehicle.” Glasco v. Commonwealth, 26 Va.

App. 763, 773, 497 S.E.2d 150, 154 (1998). 2 Thus, the Court

of Appeals affirmed the judgment of the trial court. Id.

at 776, 497 S.E.2d at 156.

II.

We begin our analysis of a search incident to arrest

with the decision of the United States Supreme Court in

Chimel v. California, 395 U.S. 752 (1969). In that case,

the Court defined the parameters of a lawful search

incident to arrest:

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. A
gun on a table or in a drawer in front of one who is
arrested can be as dangerous to the arresting officer
as one concealed in the clothing of the person
arrested. There is ample justification, therefore, for
a 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.

2
The Court of Appeals also upheld the initial stop of
Glasco and found sufficient evidence to support Glasco’s
convictions.

5
Id. at 762-63.

Several years after the Chimel decision, the Supreme

Court acknowledged that the extent of the area that is

within an arrestee’s control and thus subject to being

searched had been construed in different ways. United

States v. Robinson, 414 U.S. 218, 224 (1973). With regard

to the search of a vehicle incident to arrest, the Supreme

Court later stated that the “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 its recent occupant.”

New York v. Belton, 453 U.S. 454, 460 (1981). Thus, the

Court established a “bright-line” rule to govern such

searches: “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.

Using this rule, the Court upheld the legality of the

automobile search at issue in Belton. The police officer

in that case had stopped a vehicle, in which Belton was a

passenger, for travelling at an excessive rate of speed.

Id. at 455. After directing Belton and the other occupants

to get out of the automobile, the officer arrested them for

6
unlawful possession of marijuana. Incident to the arrest,

he searched the interior passenger compartment of the

vehicle. Id. at 456. During the search, the police

officer found cocaine in the pocket of Belton’s jacket that

had been lying on the back seat of the car. Id.

Belton established a two-part inquiry for determining

the legality of a search of a vehicle incident to arrest:

(1) whether the defendant was the subject of a lawful

custodial arrest; and (2) whether the arrestee was the

occupant of the vehicle that was searched. People v.

Savedra, 907 P.2d 596, 598-99 (Colo. 1995). The present

appeal involves the second part of the inquiry and requires

that we address the scope of the terms “occupant” and

“recent occupant” as used by the Supreme Court in Belton.

Glasco contends that the search of his vehicle

violated his Fourth Amendment right against unreasonable

searches and seizures because he was not a recent occupant

of the vehicle at the time of his arrest. He had parked

his vehicle and was walking across the street when Filer

first initiated contact with him. Further, argues Glasco,

he was sitting in the back seat of Filer’s police cruiser,

parked 20 to 30 feet behind Glasco’s vehicle, when Polak

actually searched the vehicle. Thus, according to Glasco,

7
he was not in a position to seize a weapon out of the

vehicle or to destroy evidence in it.

Initially, we conclude that certain facts in this case

do not render the search of Glasco’s vehicle outside the

parameters of a lawful search incident to arrest. The fact

that Glasco was not physically in the vehicle when he was

arrested or when Polak searched the vehicle does not mean

that Glasco was not a recent occupant of the vehicle. The

defendant in Belton likewise was outside the vehicle when

the police officer arrested him and conducted the vehicle

search. 453 U.S. at 457. “A police officer may search the

passenger compartment of an automobile incident to the

lawful custodial arrest . . . even if the arrestee has been

separated from his car prior to the search.” United States

v. Mans, 999 F.2d 966, 968-69 (6th Cir. 1993); accord United

States v. Snook, 88 F.3d 605, 608 (8th Cir. 1996); United

States v. Milton, 52 F.3d 78, 80 (4th Cir. 1995); United

States v. Franco, 981 F.2d 470, 473 (10th Cir. 1992); United

States v. Karlin, 852 F.2d 968, 971 (7th Cir. 1988).

Similarly, the fact that Glasco was sitting in the

back seat of Filer’s police cruiser when Polak searched the

vehicle, thus arguably not in a position to seize a weapon

or destroy evidence, does not change the result.

“[O]fficers may conduct valid searches incident to arrest

8
even when the officers have secured the suspects in a squad

car and rendered them unable to reach any weapon or destroy

evidence.” United States v. Willis, 37 F.3d 313, 317 (7th

Cir. 1994); accord United States v. Patterson, 993 F.2d

121, 123 (6th Cir. 1993); United States v. Cotton, 751 F.2d

1146, 1149 (10th Cir. 1985); Gundrum v. State, 563 So.2d 27,

28-29 (Ala. Crim. App. 1990); State v. Weathers, 506 S.E.2d

698, 699 (Ga. App. 1998); but see United States v. Vasey,

834 F.2d 782, 788 (9th Cir. 1987).

The pivotal fact in this case is that Glasco had

voluntarily exited the vehicle before Filer initiated any

contact with him, either by confronting Glasco directly or

by signaling confrontation with the lights or siren on the

police cruiser. Other courts that have considered the

question whether an arrestee in this situation is still a

recent occupant of a vehicle have reached differing

conclusions.

A number of jurisdictions have held that an arrestee

is an occupant of a vehicle only when the police officer

arrests or at least initiates contact with the defendant

while the defendant is inside the automobile. See United

States v. Hudgins, 52 F.3d 115, 119 (6th Cir.), cert.

denied, 516 U.S. 891 (1995) (“[W]here the defendant has

voluntarily exited the automobile and begun walking away

9
from the automobile before the officer has initiated

contact with him, the case does not fit within Belton’s

bright-line rule.”); State v. Vanderhorst, 419 So.2d 762,

763-64 (Fla. Dist. Ct. App. 1982) (holding Belton not

applicable where defendant was attaching tow rope to

vehicle when police approached and arrested him for DUI);

Commonwealth v. Santiago, 575 N.E.2d 350, 353 (Mass. 1991)

(holding search of vehicle did not qualify as search

incident to arrest because defendant had already exited

automobile when officers apprehended him); People v.

Fernengel, 549 N.W.2d 361, 362-63 (Mich. App. 1996)

(finding Belton not applicable when defendant voluntarily

left vehicle before police initiated contact).

Other courts have reached contrary results. See

Snook, 88 F.3d at 608 (holding that arrestee was occupant

of vehicle even though he had voluntarily stepped out of

car as police officer arrived); Willis, 37 F.3d at 317

(ruling that Belton applied where police officer saw

arrestee sitting in vehicle and then sneaking out of it

before officer initiated any contact with arrestee); United

States v. Arango, 879 F.2d 1501, 1506 (7th Cir. 1989),

cert. denied, 493 U.S. 1069 (1990) (finding that defendant,

who was first detained by police while walking away from

vehicle, then fled, was arrested one block from vehicle,

10
and was then returned to vicinity of vehicle by police, was

recent occupant under Belton); State v. McLendon, 490 So.2d

1308, 1309-10 (Fla. Dist. Ct. App. 1986) (extending Belton

to justify vehicle search where driver voluntarily got out

of vehicle and was arrested inside service station twenty

to thirty feet away from vehicle); Savedra, 907 P.2d at 599

(“Belton can include situations where the occupant of a

vehicle anticipates police contact and exits the vehicle

immediately before that contact occurs.”); People v.

Bosnak, 633 N.E.2d 1322, 1326 (Ill. App. 1994) (holding

that arrestee was recent occupant of vehicle under Belton

rule where police officer followed vehicle but did not

initiate contact until arrestee parked vehicle and walked

ten yards away). 3

As previously stated, the justification for a search

incident to arrest is to confiscate weapons that could

3
Additionally, we infer from the Supreme Court’s
decision in Michigan v. Long, 463 U.S. 1032 (1983), that
initial contact by a police officer before an arrestee
exits a vehicle is not required. In that case, the
defendant met the police officers at the rear of his
vehicle after he had swerved off into a ditch. Id. at
1035. Although the court upheld the legality of the
officer’s subsequent search of the defendant’s vehicle
based on the principles enunciated in Terry v. Ohio, 392
U.S. 1 (1968), the Court also stated that “[i]t is clear .
. . that if the officers had arrested Long for speeding or
for driving while intoxicated, they could have searched the

11
endanger the safety of the arresting police officer and to

prevent the destruction of evidence. Chimel, 395 U.S. at

763; Agnello v. United States, 269 U.S. 20, 30 (1925). The

Supreme Court’s purpose for enunciating the Belton “bright-

line” rule was twofold. The Court wanted to create a

straightforward definition of the area that is within the

immediate control of the arrestee, thus providing “‘[a]

single familiar standard . . . 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)). The Court also sought to eliminate the need for

litigation in every case to determine whether the passenger

compartment of a vehicle is within the scope of a search

incident to arrest. McLendon, 490 So.2d at 1309-10.

Given these reasons, we are not persuaded by the

authorities that have decided that an arrestee is an

occupant or recent occupant of an automobile only if the

police officer initiates contact with the arrestee before

that person exits the vehicle. That kind of limitation

assumes that an individual, who voluntarily gets out of an

__________________
passenger compartment under [Belton].” 463 U.S. at 1035

12
automobile, is not aware of the presence of a police

officer, or having such knowledge, it did not prompt the

person to exit the vehicle. We do not believe that those

assumptions are always warranted. Moreover, a

knowledgeable suspect has the same motive and opportunity

to destroy evidence or obtain a weapon as the arrestee with

whom a police officer has initiated contact. That suspect

could also conceal evidence in the vehicle and effectively

prevent an officer from discovering it by getting out of

his or her automobile.

Thus, as in the present case, when a police officer

observes an automobile, follows it because of his or her

prior knowledge regarding the vehicle and its suspected

driver, and arrests the driver in close proximity to the

vehicle immediately after the driver exits the automobile,

we conclude that the arrestee is a recent occupant of the

vehicle within the limits of the Belton rule. Accordingly,

the search of the passenger compartment of Glasco’s vehicle

was a lawful search incident to arrest.

For these reasons, we will affirm the judgment of the

Court of Appeals.

Affirmed.

__________________
n.1.

13
JUSTICE LACY, with whom JUSTICE KOONTZ joins, concurring.

In this case the trial court denied Glasco's motion to

suppress the evidence obtained as a result of the search of

Glasco's car because it found that the police officer had

probable cause to conduct the search. The trial court

specifically held that the search was not justified as a

search incident to arrest. As I explain in this opinion, I

believe the trial court was correct on both rulings.

Therefore, although I disagree with the opinion of the

Court of Appeals and the opinion of the majority of this

Court regarding the validity of the search, I concur in the

result reached by the majority affirming the conviction of

the defendant.

I. Search Incident to Arrest

The majority concludes that the search of the vehicle

in this case was a valid search incident to arrest because

it came within the rule announced in New York v. Belton,

453 U.S. 454 (1981). That rule, as stated by the Supreme

Court is: "[W]hen 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

(footnotes omitted).

14
 To reach its conclusion in this case, the majority

applies the rule in Belton to facts different from those

recited in that case in that the arrestee here was not an

occupant of the vehicle when arrested. This nonconforming

fact, standing alone, is not fatal, however, because in

Belton itself the defendant was not an occupant of the

vehicle when arrested; he had gotten out of the vehicle at

the direction of the arresting officer just prior to the

arrest. Due to this discrepancy between the rule as stated

in Belton and the facts of Belton, references in that

opinion to a "recent occupant" of a vehicle, see id., have

been incorporated into the rule itself. However, nothing

in Belton specifically defined what circumstances qualified

an arrestee as a "recent occupant."

Consequently, from its inception, application of the

so-called "bright line" Belton rule has not provided clear

resolution of search issues in cases with facts that do not

mirror the facts in Belton or the precise words of the

rule. To date, the U.S. Supreme Court has not addressed

whether arrestees with these varying types of connections

to the vehicle searched are "recent occupants" of the

15
vehicles under Belton. 4 However, other federal and state

jurisdictions have considered a variety of factual

circumstances.

As indicated by the majority, the analysis and results

reached in those jurisdictions are far from uniform. Some

jurisdictions have applied the Belton rule to validate a

search of a vehicle only when the officer arrests or

initiates contact with the arrestee while he or she is

still in the automobile. Other jurisdictions have extended

the Belton rule through a broader interpretation of "recent

occupant," thus validating searches of vehicles where the

arrestee voluntarily left the vehicle and proceeded some

distance from the vehicle before arrest. We have not

previously considered this issue.

The majority resolves this case by simply reviewing

the two lines of cases from other jurisdictions, rejecting

the more restrictive approach, and, without further

consideration of the specific facts of this case in light

of the rationales used by those jurisdictions adopting a

more expansive application of the Belton rule, concluding

4
In Michigan v. Long, 463 U.S. 1032 (1983), the
defendant had crashed the car in a ditch and was standing
near the opened driver's side door when the police made the
arrest. As the majority recognizes, the statements in that

16
that the defendant here was a "recent occupant of the

vehicle" under Belton, thus validating the search of his

vehicle as a search incident to arrest. In my opinion,

determining whether, under the facts of this case, Glasco

is a "recent" occupant of the vehicle and thus subject to

the Belton rule, requires an examination of Fourth

Amendment principles in general and those involved in

Belton in particular.

The Fourth Amendment to the United States Constitution

protects persons from unreasonable searches by the

government. The Supreme Court has interpreted this to mean

that before the police may search any area in which a

suspect has a reasonable expectation of privacy, see Katz

v. United States, 389 U.S. 347, 357 (1967), the police must

have probable cause to believe that the area to be searched

contains evidence of criminal activity by the suspect and

must obtain a search warrant from a neutral magistrate.

See United States v. Harris, 403 U.S. 573 (1971). The

Supreme Court has recognized that citizens have a

reasonable expectation of privacy while in their vehicles.

Delaware v. Prouse, 440 U.S. 648, 667 (1979).

__________________
opinion regarding the application of Belton to the facts of
that case were dicta.

17
 Certain exceptions to the warrant requirement have

been recognized, such as the right of the police to search

the person of the arrestee incident to arrest, see Weeks v.

United States, 232 U.S. 383, 392 (1914), and the area

within his control. See Carroll v. United States, 267 U.S.

132, 158 (1925). The justifications for this exception to

the warrant requirement are the need to insure the safety

of the arresting officer by allowing him to disarm the

suspect to take him into custody and the need to preserve

evidence. See, e.g., United States v. Richardson, 414 U.S.

218, 234 (1973).

In Chimel v. California, 395 U.S. 752 (1969), the

Supreme Court reversed the trend of a series of cases that

had broadened the scope of a warrantless search incident to

arrest. 395 U.S. at 768 (overruling United States v.

Rabinowitz, 339 U.S. 56 (1950) and Harris v. United States,

331 U.S. 145 (1947)). In Chimel, the Court limited the

permissible scope of searches incident to arrest to the

area "'within [the arrestee's] immediate control' —

construing that phrase to mean the area from within which

[the arrestee] might gain possession of a weapon or

destructible evidence." Id. at 763. Only when the search

is thus limited is it reasonable under the Fourth

Amendment, according to the Court, in light of the

18
rationale for the exception to the warrant requirement

recognized in prior cases — safety of the police and

preservation of evidence. Id. at 763-64.

Following Chimel, determining whether a particular

area in which incriminating evidence was found was within

an arrestee's "immediate control" required an examination

of the facts and circumstances surrounding each arrest.

Such a case-by-case analysis, particularly in the area of

vehicle searches, presented a significant burden to courts

and police.

The Belton "bright line" rule was created by the

Supreme Court to relieve this burden. Belton, 453 U.S. at

459-60. The Court created the rule following a survey of

federal circuit court cases decided after Chimel in which

the police arrested a vehicle occupant and searched the

vehicle. The survey revealed to the Court that whenever a

vehicle occupant was arrested, "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, citing Chimel, 395 U.S. at 763. Based on this

recurring fact pattern, the Supreme Court adopted a factual

presumption that, if the arrestee is an occupant of the

19
vehicle, the arrestee can reach in the vehicle and get a

weapon or destroy evidence. Following Belton, a showing of

the actual fact of occupancy would automatically provide

the presumed fact of access to the passenger compartment

which is required by Chimel as a prerequisite for a

warrantless search of a vehicle incident to arrest. The

Supreme Court made it clear that its holding was "in no way

alter[ing] the fundamental principles established in the

Chimel case regarding the basic scope of searches incident

to lawful custodial arrests." 453 U.S. at 460 n. 3.

Turning to the task at hand, although the cases from

other jurisdictions addressing this issue are informative,

our task is to independently consider and apply the

principles of Chimel and Belton to determine whether, under

the facts of this case, Glasco was a "recent occupant" of a

vehicle for purposes of the Belton rule. A review of the

cases surveyed and cited by the Supreme Court in Belton as

supporting the factual presumption of access to the

vehicle created in that case reveals that in all but one

case, the arrestee was arrested while in the vehicle, and

in all the cases the search of the vehicle occurred after

the arrestees exited the vehicles at the direction of the

police and while they were still within close proximity of

the vehicles. United States v. Rigales, 630 F.2d 364, 366

20
(5th Cir. 1980); United States v. Benson, 631 F.2d 1336,

1337 (8th Cir. 1980), vacated, 453 U.S. 918 (1981); United

States v. Sanders, 631 F.2d 1309, 1312-13 (8th Cir. 1980);

United States v. Dixon, 558 F.2d 919, 922 (9th Cir. 1977);

United Stated v. Frick, 490 F.2d 666, 668 (5th Cir. 1973).

These fact patterns along with the facts in Belton suggest

that in using the phrase "recent occupant" in Belton, the

Supreme Court was referring to persons arrested under these

or similar circumstances.

For purposes of this case, however, we need not engage

in speculation as to whether the fact patterns surveyed in

Belton would be the only circumstances under which the

search of a vehicle incident to arrest under the Belton

rule could pass Fourth Amendment scrutiny. To resolve this

case, we need only look to one of the "fundamental

principles" of Chimel cited in and unaltered by Belton:

The scope of a warrantless search must be "'strictly tied

to and justified by' the circumstances which rendered its

initiation permissible." Belton, 453 U.S. at 457

(citations omitted). If there is no connection shown

between a person's occupancy of a vehicle and his arrest,

then extending the scope of the search incident to arrest

to the vehicle is neither "tied to" nor "justified by"

circumstances of the arrest. Thus, to qualify as a valid

21
warrantless search incident to arrest, at a minimum, some

connection must exist between occupancy of the vehicle and

the circumstances of the arrest. 5 Whether such a connection

exists will depend on the facts of each case.

At the time of the arrest in this case, Glasco had

lawfully parked his vehicle, crossed the street, and was

thirty feet away from the vehicle, heading toward the home

of a friend. The police had not initiated any contact with

Glasco prior to that time. The record contains no

indication that Glasco was aware of the police when he

parked and exited his vehicle.

This case is not a case in which the police have

officially engaged and are following a suspect and in which

the suspect stops his vehicle, gets out of it, runs away

from the police, and is arrested at some point away from

the vehicle. See, e.g., White v. Commonwealth, 24 Va. App.

446, 482 S.E.2d 876 (1997). Those circumstances may

suggest some connection between the circumstances

surrounding the arrest and the arrestee's occupancy of the

5
By "circumstances of the arrest," I do not mean the
grounds for arrest. The "'danger to the police officer
flows from the fact of the arrest, and its attendant
proximity, stress, and uncertainty, and not from the
grounds for arrest.'" Knowles v. Iowa, __ U.S. __, No. 97-
7597, Dec. 8, 1998, 67 U.S.L.W. 4027, 4028, citing United
States v. Robinson, 414 U.S. 218, 234 n.5 (1973).

22
vehicle. In this case, there is no evidence that Glasco

was aware of the police presence or took any action as a

result of the police presence while he was in his vehicle

or when he stopped, parked, and exited the vehicle. He was

neither approached nor arrested by the police until he had

completely left the area of the vehicle, crossed the street

and was proceeding toward the house of a friend. When

approached by the police, Glasco did reverse his course and

take steps toward the police, but there is nothing in the

record that indicates Glasco was heading back to the

vehicle. On these facts, there is simply no connection

between Glasco's occupancy of his vehicle and his arrest.

Therefore, in the absence of such a connection, there is no

basis to deem Glasco a "recent occupant" for purposes of

the Belton rule.

The majority expresses a concern for adopting a

rationale that might give a suspect the opportunity "to

conceal evidence in the vehicle and effectively prevent an

officer from discovering it by getting out of his or her

automobile." While the concealment of evidence is a valid

concern of law enforcement, the Fourth Amendment

nevertheless reflects the belief held in our system of

government that the right to be free from unreasonable

governmental searches supersedes the interest of the police

23
in unfettered access to one's home, person, or automobile,

even to recover evidence concealed therein. As the Supreme

Court stated in Chimel:

We are not dealing with formalities.
The presence of a search warrant serves a
high function. Absent some grave emergency,
the Fourth Amendment has interposed a
magistrate between the citizen and the
police. This was done not to shield
criminals nor to make the home a safe haven
for illegal activities. It was done so that
an objective mind might weigh the need to
invade that privacy in order to enforce the
law . . . . We cannot be true to that
constitutional requirement and excuse the
absence of a search warrant without a
showing by those who seek exemption from the
constitutional mandate that the exigencies
of the situation made that course
imperative.

395 U.S. at 761, citing McDonald v. United States, 335 U.S.

451, 455-56(1948).

Therefore, the mere ability of a citizen to put

evidence out of the reach of law enforcement by placing it

within an area protected by the right to privacy is not

sufficient to justify a warrantless search. 6

Furthermore, as I have previously indicted, we do not

need to draw a "bright line rule" to apply in circumstances

where an arrestee is a "recent occupant" of a vehicle for

6
Of course, under the analysis I suggest here, action
by a vehicle's occupant shown to be taken in response to

24
purposes of the Belton presumption. Our responsibility is

to look at the facts of this case and to determine whether

the arrestee's occupancy of the vehicle was sufficiently

connected with the circumstances of his arrest to justify

application of the Belton rule. For the reasons stated

above, it is my opinion that the rule set out in the Belton

case is not applicable to the facts of this case.

II. Probable Cause

The trial court held that the search of Glasco's

vehicle did not violate Glasco's Fourth Amendment rights

because the police officer had probable cause to conduct the

search. Glasco appealed this holding to the Court of

Appeals and argued before that court that probable cause to

search the vehicle did not exist. He made the same

arguments in this Court. 7

Whether probable cause exists is a question of law and

fact and is reviewed de novo on appeal. Ornelas v. United

__________________
police presence may subject the actor to search of the
vehicle under Belton.
7
Neither the majority opinion nor the opinion of the
Court of Appeals addresses this issue. The Commonwealth
did not address the issue in its brief in this Court, but
at oral argument, counsel for the Commonwealth "conceded"
that probable cause to search Glasco's vehicle did not
exist. However, concessions in respect to conclusions of
law are not binding upon the parties or the court. Tuggle
v. Commonwealth, 230 Va. 99, 111 n.5, 334 S.E.2d 838, 846
n.5 (1985).

25
States, 517 U.S. 690, 699 (1996). The evidence at trial

established that, upon searching Glasco incident to his

arrest for driving under a suspended license, the officer

found two small bags of marijuana, a pager, and $650 in

cash. Six hundred dollars of the $650 was in six separate

folds. The currency in each fold amounted to $100. The

police officer testified that "I had no probable cause to

believe [contraband or narcotics were in the vehicle], but I

did have a hunch there might be some narcotics located in

the vehicle." The officer had received information in the

past that Glasco was involved in narcotics and his "hunch"

was based on finding the marijuana when he searched Glasco.

The officer's statement that he did not have probable

cause is not dispositive. Subjective motivations of the

officer do not affect the probable cause Fourth Amendment

analysis. Whren v. United States, 517 U.S. 806, 813

(1996). The probable cause determination is whether the

facts, viewed from the standpoint of an objectively

reasonable police officer, amount to probable cause. Id.

Applying that standard, the items found as a result of the

search of Glasco, including the manner in which the

currency was packaged, along with the officer's knowledge

of Glasco's involvement with narcotics, were sufficient to

provide the officer with probable cause to believe Glasco

26
was selling or trafficking narcotics and that additional

narcotics would be found in the vehicle.

For these reasons I concur in the result reached by

the majority.

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