                                     File Name: 05a0917n.06
                                    Filed: November 18, 2005

                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 04-2528

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                         ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
LLEWELLYN DARRELL JONES,                                   COURT FOR THE EASTERN
                                                           DISTRICT OF MICHIGAN
       Defendant-Appellant.


                                                      /

BEFORE:        DAUGHTREY and COLE, Circuit Judges, and JOHN G. HEYBURN II,
               Chief District Judge*

       JOHN G. HEYBURN II, CHIEF DISTRICT JUDGE. The defendant, Llewellyn Jones,

pleaded guilty to possessing a firearm while subject to a personal protection order, in violation of

the provisions of 18 U.S.C. § 922(g)(8). In that plea, he explicitly reserved the right to challenge

the district court’s denial of his motion to suppress the firearm officers recovered from his vehicle.

Jones now asserts that the search of his van and the resulting seizure of the weapon violated the

Fourth Amendment because “the vehicle was outside the area from within which defendant could

obtain a weapon or destroy evidence,” and “because it was not reasonable to believe that evidence

relevant to the crime of arrest would be found in the vehicle.” Although the United States Supreme


       *
         The Honorable John G. Heyburn II, Chief United States District Judge for the Western
District of Kentucky, sitting by designation.
No. 04-2528
United States v. Llewellyn Darrell Jones
Page 2

Court case Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127 (2004), expressly declined to

resolve either of those two questions definitively, we believe that its holding requires that we affirm

the denial of Jones’s motion to suppress.

                                                  I.

       On appeal, the government and the defendant no longer contest the underlying facts. Jones

was charged in December 2003 with uttering and publishing counterfeit currency and an arrest

warrant was issued. In an effort to serve that warrant, law enforcement officials followed Jones from

his home to the Genessee County (Michigan) Circuit Courthouse where he was late for an

appointment in another case. When the defendant parked his car in a private parking lot near the

courthouse, the officers attempted to prevent Jones from leaving the area. As the defendant exited

his vehicle, Special Agent Ryan Van Dusen of the United States Secret Service approached him

within “a matter of seconds, enough for him to shut the door and walk away from the car” and

arrested him approximately “10 to 15 feet” from the defendant’s vehicle. Jones was then handcuffed

and physically restrained from returning to his car. Van Dusen took the defendant’s keys, unlocked

the vehicle, and observed a handgun underneath the driver’s seat. Another law enforcement officer

confiscated the weapon before Jones’s car was impounded.

       Jones was indicted for a violation of 18 U.S.C. § 922(g)(8).1 Jones moved to suppress the

gun that served as the basis for the federal offense, alleging that the search for and seizure of the



       1
        Pursuant to the provision of 18 U.S.C. § 922(g)(8), a person subject to a court order like
the one issued against Jones may not “ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or . . . receive any firearm or
ammunition which has been shipped or transported in interstate or foreign commerce.”
No. 04-2528
United States v. Llewellyn Darrell Jones
Page 3

weapon violated his Fourth Amendment protections. The district judge denied that motion, relying

in part upon the Supreme Court’s decision in Thornton. Jones then entered a conditional guilty plea,

explicitly reserving the right to challenge on appeal the decision denying his motion to suppress.

                                                  II.

       We review a district court's factual findings on a suppression motion for clear error and its

legal conclusions de novo. United States v. Haynes, 301 F.3d 669, 676 (6th Cir. 2002). Moreover,

on appeal, the court “must consider the evidence in the light most favorable to the government.”

Id.    The Government concedes that a warrantless search occurred when Van Dusen searched

Jones’s van.    Federal courts have long recognized that “[w]arrantless searches are per se

unreasonable under the fourth amendment, except in a few carefully delineated instances.” United

States v. Radka, 904 F.2d 357, 360 (6th Cir. 1990) (citing Katz v. United States, 389 U.S. 347, 357

(1967)). The Government contends that the exception recognized in New York v. Belton, 453 U.S.

454 (1981), and interpreted in Thornton applies in this case. We agree.

       In Belton, 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.” Belton, 453 U.S. at 460. The defendant in that case

was stopped for a traffic offense and was subsequently ordered out of the car and arrested. Id. at

454-55. Even though the defendant was physically outside the vehicle at the time it was searched,

the Court held that the officers had conducted a valid search incident to arrest. Id. at 462-63.

       In Thornton, the Court addressed a situation in which the defendant was not in his vehicle

at the time the police arrived at the scene. Instead, as in this case, the defendant parked his car and
No. 04-2528
United States v. Llewellyn Darrell Jones
Page 4

excited the vehicle shortly before being accosted by the police. Thornton, 541 U.S. at __, 124 S.Ct.

At 2129. The Court held that “so long as an arrestee is the sort of ‘recent occupant’ of a vehicle

such as petitioner here, officers may search that vehicle incident to the arrest.” Id. 541 U.S. at __,

124 S.Ct. at 2132 (footnote omitted).

       At issue in this case is whether Jones is “the sort of ‘recent occupant’” envisioned by the

Thornton majority. The Court expressly declined to define the term, see id., 541 U.S.__, 124 S.Ct.

at 2131 n.2, and although the Court noted that “an arrestee's status as a ‘recent occupant’ may turn

on his temporal or spatial relationship to the car at the time of the arrest and search,” id., 541 U.S.

__, 124 S.Ct. at 2131, the Court never specified the physical distance between the defendant and his

car at the time he was arrested or the amount of time that had elapsed since he had exited his car.

                                                  A.

       Jones argues that he was not a “recent occupant” of his vehicle, because he was not within

reaching distance of the van at the time he was arrested. Citing Chimel v. California, 395 U.S. 752

(1969), Jones argues that unless “recent occupant” is limited to persons within reach of their

vehicles, the Belton exception would extend beyond its justification and permissible scope. In

Chimel the Court held that a lawful search incident to arrest was justified by two concerns: (1) “to

remove any weapons that the latter might seek to use in order to resist arrest or effect his escape;”

and (2) “to search for and seize any evidence on the arrestee’s person in order to prevent its

concealment or destruction.” Id. at 763. Accordingly, the Court held that an officer may search “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.
No. 04-2528
United States v. Llewellyn Darrell Jones
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        However, twelve years later, the Belton court found the Chimel approach unworkable as

applied to the arrest of an occupant of a motor vehicle. Belton, 453 U.S. at 460. The defendant in

that case had, prior to the search of the car, been removed from the vehicle, arrested and isolated.

See id. at 456. Thus, there was little, if any, chance that he could have grabbed either evidence or

a weapon under the watchful eyes of the law enforcement officers. Nevertheless, the Court held that

the search of the defendant’s car was permissible. Id. at 462-63.

        Similarly, in Thornton, the defendant had been handcuffed and placed in the back seat of the

patrol car before the officers began the search of his vehicle. Thornton, 541 U.S. __, 124 S.Ct. at

2129. Thus, “[t]he risk that he would nevertheless ‘grab a weapon or evidentiary ite[m]’ from his

car was remote in the extreme.” Id., 541 U.S. at __, 124 S.Ct. at 2133 (Scalia, J., concurring in the

judgment). The majority recognized that “not all contraband in the passenger compartment is likely

to be readily accessible to a ‘recent occupant.’” Id., 541 U.S. at __, 124 S.Ct. at 2132. However,

the Court held that the search was justified by a concern for officer safety. The Court reasoned that

“[a] custodial arrest is fluid and ‘[t]he danger to the police officer flows from the fact of the arrest,

and its attendant proximity, stress, and uncertainty.’” Id., 541 U.S. at __, 124 S.Ct. at 2131 (citation

and emphasis omitted).

        The Court emphasized that in applying the Belton exception, courts should avoid rules that

require officers to make subjective, fact-specific determinations in the field; rather, Thornton

stressed “[t]he need for a clear rule, readily understood by police officers.” Id., 541 U.S. at __, 124

S.Ct. at 2132. Consequently, Thornton made clear that the Belton exception is not dependent upon

“estimates of what items were or were not within reach of an arrestee at any particular moment.”
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United States v. Llewellyn Darrell Jones
Page 6

Id.

       Given the Supreme Court’s directive in Thornton, the search of the defendant’s vehicle is

permissible under the Fourth Amendment. The defendant had exited his vehicle seconds before the

officers approached him and he stood just ten to fifteen feet away while they searched it. Although

an arrestee’s status as a “recent occupant” may depend on “his temporal or spatial relationship to

the car at the time of the arrest and search,” Thornton., 541 U.S. __, 124 S.Ct. at 2131, it does not

require that he be within reach of the automobile. That the vehicle was outside the defendant’s

“grab area” after he was arrested and handcuffed does not require suppression of the evidence found

upon entry of the vehicle.

                                                 B.

       There is also no merit to Jones’s second claim that the search must be invalidated because

there was no reason to believe evidence of a crime would be hidden within the vehicle. As the

Supreme Court made clear in Thornton, “[o]nce an officer determines that there is probable cause

to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence

by searching the entire passenger compartment.” Id., 541 U.S. at __, 124 S.Ct. at 2131. Indeed, in

Belton, the Court quoted with approval that portion of its decision in United States v. Robinson, 414

U.S. 218, 235 (1973), that stated “[a] custodial arrest of a suspect based on probable cause is a

reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident

to the arrest requires no additional justification.” (emphasis added). Thus although Jones’s

approach was adopted by Scalia in his concurring opinion in the Thornton decision, Thornton, 541

U.S. at ___, 124 S.Ct. at 2137 (Scalia, J., concurring in the judgment), the question is not open for
No. 04-2528
United States v. Llewellyn Darrell Jones
Page 7

lower courts such as ours to reconsider.

       The judgment of the district court is AFFIRMED.
