
USCA1 Opinion

	




                            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
