                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-2006

USA v. Morris
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1750




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                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                No. 05-1750
                                ___________

                      UNITED STATES OF AMERICA


                                      v.

                        GREGORY LYNN MORRIS,

                                      Appellant

                                ___________

         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                             (D.C. No. 03-cr-00218)
                District Judge: The Honorable Arthur J. Schwab
                                 ___________

                       ARGUED: OCTOBER 20, 2005

          BEFORE: SMITH, BECKER, and NYGAARD, Circuit Judges.


                            (Filed: May 5, 2006)
                                 ___________

Gary B. Zimmerman, Esq. (ARGUED)
100 Ross Street, Suite 304
Pittsburgh, PA 15219-2013
              Counsel for Appellant

Michael L. Ivory, AUSA (ARGUED)
Laura S. Irwin, AUSA
Office of United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219
              Counsel for Appellee

                                       ___________

                               OPINION OF THE COURT
                                    ___________

NYGAARD, Circuit Judge.

       Gregory Lynn Morris appeals from an order denying his motion to suppress evidence

of cocaine and crack cocaine discovered during a warrantless search of his pickup truck

following his arrest for drunk driving. Because we conclude that the warrantless search of

the contents of his truck was permissible under the inventory search exception to the warrant

requirement, and that drugs found within a book bag were subject to the inevitable discovery

exception to the exclusionary rule, we will affirm.1

                                             I.

       Appeals alleging violations of the Fourth Amendment search and seizure

protections are heavily fact-oriented. This appeal is no exception. They begin on


1.
  In 2004, a jury convicted Morris of possession with intent to distribute cocaine and
crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), (b)(1)(B)(ii). He was
subsequently sentenced to twenty years in prison.
December 14, 2002, just before midnight, when Wilkins Township Police Officer David

Brokaw saw Morris driving his pickup truck erratically. He followed him for a distance

before stopping him. Morris’ truck and Brokaw’s police car were blocking the right-hand

traffic lane.

        Brokaw’s initial observations led him to believe that Morris was drunk. So he had

Morris try to perform several field sobriety tests, which were also observed by Officer

Robert Lehew who arrived on the scene shortly after Morris was pulled over. Morris

failed these tests and a portable breathalyzer test administered by another officer, Harry

Welsh.

        Brokaw arrested Morris for driving under the influence, in violation of 75 PA.

CONS. STAT. § 3731, and called for a tow truck to impound Morris’ vehicle because its

driver and sole occupant was in custody. Morris consented to a blood test. Brokaw

immediately drove him to Forbes Regional Hospital. Brokaw testified that he did not wait

for the inventory search to be completed or for the tow truck to arrive because he was

aware that over time alcohol dissipates in the bloodstream and because he knew there

were often long waits for blood to be drawn at the hospital’s emergency room on a

Saturday night. Brokaw left the scene with Morris in custody approximately 15 minutes

after the initial traffic stop.
       Because there was no one to take possession of Morris’ truck, and it could not be

left blocking a lane of traffic, the vehicle was impounded. Lehew then performed an

inventory search of Morris’ truck. The inventory took about 15 or 16 minutes. In the

extended cab portion of Morris’ truck, Lehew found a yellow and black book bag which

he opened. Inside the book bag, he found several plastic bags containing white powder

and chunky substances which, based on his experience, he believed were cocaine and

crack cocaine. He detailed these items and all other property he discovered within the

truck on the inventory report form in accordance with the written Wilkins Township

Motor Vehicle Inventory Procedures.

                                            II.

                                            A.

       The prosecution may demonstrate that evidence seized in a warrantless search is

admissible by showing that it was uncovered pursuant to a routine inventory search. An

inventory search conducted by the police before the vehicle is towed is lawful if the

police have grounds for impounding or otherwise taking custody of the vehicle, and the

search is conducted pursuant to standard police procedures aimed at protecting the

owner’s property and protecting the police from the owner’s later accusations of theft,

loss or damage. See Illinois v. LaFayette, 462 U.S. 640, 643-44; 103 S. Ct. 2605, 2608;

77 L. Ed. 2d 65, 69 (1983).
       Because Morris’ vehicle was blocking a lane of traffic, the officers had no choice

but to impound and eventually remove it. See South Dakota v. Opperman, 428 U.S. 364,

368-69; 96 S. Ct. 3092, 3097; 49 L. Ed. 2d 1000, 1005 (1976) (“The authority of police to

seize and remove from the streets vehicles impeding traffic or threatening public safety

and convenience is beyond challenge.”) Once Morris’ truck was in police custody, the

officers were permitted to inventory the vehicle. See id. at 372; 96 S. Ct. at 3098-99.

       Morris argues that the inventory search was unlawful because the officers

conducting the search failed to follow explicitly the commands of the Wilkins Township

Police Department’s established Vehicle Inventory Policy. Section 8.14.13(c) states:

       The owner or operator of the vehicle shall be asked to remove, if possible,
       all valuables from the vehicle prior to impoundment. If such items cannot
       be removed, they shall be inventoried before the vehicle is removed, and
       the owner/ operator shall be requested to verify the completeness of the
       inventory by signature.

(Emphasis added.)

       Morris argues that because of the use of the word “shall” in the Wilkins Township

Police Department Motor Vehicle Inventory Procedures, the officers on the scene were

unconditionally obligated to permit him to take possession of his book bag before

impounding his vehicle and conducting the inventory search. However, “shall” is

modified by the phrase “if possible.” We read this text to require that an arrestee be given
possession of the valuable items in his or her vehicle before impoundment and inventory

if the officers on the scene are able to do so.

       This was not possible here. By the time the inventory procedure had begun,

Morris had been arrested, handcuffed and was on his way to Forbes Regional Hospital,

and could neither take possession of his valuables nor verify the completeness of the

inventory with his signature. The District Court found that it was reasonable for Brokaw

to transport Morris immediately to the hospital for a blood draw because alcohol quickly

dissipates in the blood, and because there can be long waits at the hospital’s emergency

room. We agree. Moreover, under Pennsylvania law, police officers have only two hours

following the arrest in which to obtain an arrestee’s blood alcohol content. See 75 PA.

CONS. STAT. § 3802(a)(2). It was unquestionably reasonable for the police to transport

him quickly to the hospital to gather evidence for use in a future DUI prosecution.

       The record supports the District Court’s finding that the officers inventoried

Morris’ vehicle in accordance with the standardized method and policies found in Wilkins

Township Police Department Motor Vehicle Inventory Procedures Sections 8.14.10 -

8.14.19 and lawfully discovered the contraband.

                                              B.

       We also note that even evidence that would ordinarily be excluded because the

process by which it was discovered contravened Constitutional strictures may be admitted
if the evidence would have inevitably been discovered. “If the prosecution can establish

by a preponderance of the evidence that the information ultimately or inevitably would

have been discovered by lawful means . . . then the deterrence rationale has so little basis

that the evidence should be received.” United States v. De Reyes, 149 F.3d 192, 195 (3d

Cir. 1998) (quoting Nix v. Williams, 467 U.S. 431, 444; 104 S. Ct. 2501, 2510; 81 L. Ed.

2d 377, 388 (1984)).

       The officers in this case would have inevitably discovered the cocaine even if they

had permitted Morris to take possession of his book bag – or valuables – before

conducting an inventory search. It is undisputed that Morris’ arrest was lawful. Before

being given the book bag, it surely would have been searched incident to his arrest. See

New York v. Belton, 453 U.S. 454, 460; 101 S. Ct. 2860, 2864; 69 L. Ed. 2d 768, 775

(1981), reh’g denied, 453 U.S. 950; 102 S. Ct. 26; 69 L. Ed. 2d 1036 (1981). Moreover,

because the officers had already searched him and found a pocket knife, they were

permitted to search all areas within his control where weapons could have been concealed

and reachable by him. See id. at 460-61; 101 S. Ct. at 2864. Consequently, even if

Morris had been given possession of his book bag, the officers would first have searched

it for their own safety, and the cocaine inside would inevitably have been discovered.

                                            III.
      The inventory search of Morris’ truck was lawful, and Morris’ cocaine would

inevitably have been discovered.

      The Judgment of the District Court will be affirmed.

                                   __________________




SMITH, Circuit Judge, concurring.
               I concur in the judgment affirming the District Court’s order denying

Gregory Morris’s motion to suppress the cocaine and crack cocaine. I write separately

because even if the interpretation of the policy as articulated by Judge Nygaard in his

opinion is wrong, as the dissent contends, the inventory search was not constitutionally

infirm simply because the officers failed to comply with a requirement of the policy.

Instead of the bright-line rule applied by the dissent - i.e., if there is a violation of the

policy, the search is unconstitutional - I submit that the better approach is set forth in

South Dakota v. Opperman, 428 U.S. 364 (1976), and its progeny.

                                                I.

               In Opperman, 428 U.S. at 364, the Supreme Court considered the

constitutionality of an inventory search of a vehicle. The Court acknowledged that

inventory searches are performed “in response to three distinct needs: the protection of

the owner’s property while it remains in police custody; the protection [of] the police

against claims or disputes over lost or stolen property; and the protection of the police

from potential danger.” Id. at 369 (citations omitted). In deciding that these “caretaking

procedures” were constitutionally permissible, the Supreme Court explained that the

probable cause approach is unhelpful unless the “protective procedures are a subterfuge
for criminal investigations.” Id. at 370 n.5. Rather than focusing on whether there is

probable cause to believe the defendant has committed a crime, the inquiry is whether,

considering “all the facts and circumstances,” the inventory search was reasonable under

the Fourth Amendment. Id. at 375. The Court declared that its decisions “point

unmistakenly to the conclusion . . . that inventories pursuant to standard police procedures

are reasonable.” Id. at 372.

              More than a decade later, in Colorado v. Bertine, 479 U.S. 367 (1987), the

Supreme Court revisited the constitutionality of inventory searches. In that case, the

inventory search was conducted pursuant to a policy, but the policy allowed the officers

to either conduct the inventory or remove the vehicle to an impound lot. Bertine argued,

inter alia, that the discretion afforded by the policy to inventory or impound rendered the

search unconstitutional. The Court rejected this argument. It began its analysis by

reiterating that “inventory searches are a well-defined exception to the warrant

requirement of the Fourth Amendment.” Id. at 371. It highlighted Opperman’s finding

that there were strong governmental interests behind the caretaking procedures, and

observed that its “cases accorded deference to police caretaking procedures designed to

secure and protect vehicles and their contents within police custody.” Id. at 372 (citations
omitted). Consistent with this observation, the Bertine Court reasoned that the existence

of an alternative to the inventory did not render the search constitutionally infirm, and

concluded that “reasonable police regulations relating to inventory procedures

administered in good faith satisfy the Fourth Amendment . . . .” Id. at 374 (emphasis

added). In addition, the Court explained that the discretion to inventory or impound the

vehicle did not invalidate the search. It declared that “[n]othing in Opperman or

Lafayette prohibits the exercise of police discretion so long as that discretion is exercised

according to standard criteria and on the basis of something other than suspicion of

evidence of criminal activity.” Id. at 375.

              Thereafter, in Florida v. Wells, 495 U.S. 1 (1990), the Supreme Court

considered whether an inventory search of an automobile and several closed containers

therein was reasonable. The record did not reveal any evidence that a policy governed the

search. Chief Justice Rehnquist reiterated that some discretion is permissible, id. at 4, and

explained that “[o]ur view that standardized criteria or established routine must regulate

the opening of containers is based on the principle that an inventory search must not be a

ruse for general rummaging in order to discover incriminating evidence.” Id. A search

conducted in the absence of a policy, however, is constitutionally infirm. Id. at 5.
              Thus, Opperman and its progeny instruct that the initial inquiry in

reviewing the constitutionality of an inventory search is whether there is a policy that is

sufficiently detailed that it limits the discretion of the officers conducting an inventory

search and precludes such a search from being a subterfuge for investigating other crimes.

See Wells, 495 U.S. at 5; Bertine, 479 U.S. at 372. Without a policy to guide the

officers, the inventory search is unconstitutional. If the policy exists and satisfies the

requirements of Opperman and its progeny, the next step is to determine if there was

compliance with the policy.

              Compliance with the policy for inventory searches ends the inquiry and

there is no basis for suppressing evidence obtained from such an inventory search. But

contrary to the dissent’s approach, I submit that an inventory search is not constitutionally

invalidated simply because the officers have not rigidly adhered to some term of the

policy. It is my view rather, that if a deviation from the policy has occurred, the next step

in the inquiry must be whether the officers conducting the search acted in good faith by

attempting to comply with the policy and to accomplish the caretaking purpose of such

inventory searches. See Bertine, 479 U.S. at 374 (concluding that “reasonable police

regulations relating to inventory procedures administered in good faith satisfy the Fourth
Amendment . . . .”) (emphasis added); Opperman, 428 U.S. at 369, 370 n.5, 376

(describing the reasons for inventory searches to be performed and pointing out that the

caretaking procedures cannot be used as a means to investigate for evidence of other

criminal activity”).

              As Opperman instructs, the inquiry “as in all Fourth Amendment cases,”

should “look to all the facts and circumstances of [the] case . . . .” 428 U.S. at 375. In

cases such as the one we consider today, the court should determine whether the policy at

issue failed to specify the procedure to be employed for the specific factual scenario

presented in the case, such that the officers conducting the search can reasonably be

excused from following one or more general rules of the policy.

                                             II.

              Here, the policy at issue was detailed and appropriately limited the

discretion of the officers in conducting the search. The policy explained that a “motor

vehicle inventory is an administrative measure” designed to accomplish the caretaking

purposes spelled out in Opperman. It instructed that a search “pursuant to a criminal

investigation or with the intent of discovering evidence of a crime” is not covered by the

policy and is not administrative in nature. The policy required that an inventory search be
conducted of any vehicle seized or impounded, and that such an inventory search should

be conducted in the location at which the vehicle is seized. The owner/operator of the

vehicle to be searched “shall be asked to remove” all valuables or “shall be requested to

verify the completeness of the inventory by signature.” The policy provided that the

search “may extend to all areas of the vehicle in which personal property or hazardous

material may reasonably be found . . . .” In addition, the policy instructed that “[a]ll

closed containers found within the vehicle shall be opened . . . .” In the event a closed

container was locked, the policy addressed how such containers were to be handled.

              The officers arguably did not comply with one of the rules of the policy,

however, because it required the owner/operator to either remove any contents or to

verify the completeness of the inventory. Thus, we must consider whether the police

officers conducted the search in good faith by attempting to comply with the policy

insofar as the circumstances allowed, and whether they otherwise acted with the intent to

fulfill the caretaking purpose of the policy. I conclude that they acted in good faith.

              The policy at issue did not address the factual scenario presented to the

officers, i.e., how an inventory search was to be completed if the owner/operator was not

available at the time the search was to be conducted and was unable to remove or to
verify the completeness of the inventory. In fact, if the vehicle had been removed without

the inventory search being conducted at the roadside, the officers would have arguably

violated the policy’s requirement that the search should be conducted at the location

where the vehicle is seized. Accordingly, the police officers complied with the policy to

the extent that the circumstances would allow.

              Further, other than the fact that Morris was not detained at the site to

remove his property or verify the search, Morris did not identify any other deficiency in

the officers’ search of the truck. The officers’ testimony indicated that the search was

conducted for the purpose of inventorying the contents of the truck and that they did not

anticipate that this arrest involved anything more than a driving under the influence

offense. This evidence supports the District Court’s finding that the search was not

“conducted in bad faith or to investigate for evidence of crimes.” This finding is not

clearly erroneous.

              Accordingly, I conclude that the inventory search, though arguably

violative of one of the general terms of the policy, was not constitutionally infirm given

the circumstances of this case. For that reason, I would concur in the judgment affirming
the District Court’s order denying Morris’s motion to suppress the drugs which were

discovered during the inventory search of his truck.




Becker, Circuit Judge, dissenting.

              I would hold that the search of Morris’ vehicle was not a valid inventory

search because police officers departed from their own written procedures. Furthermore,

because the government did not raise the search incident to arrest and inevitable discovery

arguments in the District Court, I would remand the case to allow the District Court to

consider these arguments in the first instance and to develop the record further.

I.            Inventory Search
              The majority concludes that Officer Lehew performed a valid inventory search

under South Dakota v. Opperman, 428 U.S. 364 (1976), and its progeny because the search

complied with standard police procedures. This conclusion, however, is based on a

misreading of § 8.14.13(c) of the Wilkins Township Motor Vehicles Inventory Policy, quoted

in the majority opinion.

              The pivotal question is whether the phrase “if possible” in the first sentence of

this provision modifies “remove” or “shall be asked.” If, as the majority concludes, “if

possible” modifies “shall be asked,” then Lehew did not have to ask Morris to remove all

valuables from his car. On the other hand, if “if possible” modifies “remove,” then the

phrase “shall be asked” is unqualified. Under this second reading, Wilkins Township police

must always ask a suspect before removing objects from the car. It would follow that Lehew

was not permitted to remove objects from Morris’ car without asking him.

              Under the last antecedent rule, “a limiting clause or phrase . . . should

ordinarily be read as modifying only the noun or phrase that it immediately follows.”

Barnhart v. Thomas, 540 U.S. 20, 26 (2003). “If possible” follows on the heels of “remove,”

and therefore modifies “remove” under the last antecedent rule of construction. Therefore,

Lehew violated § 8.14.13(c).
              This would be the better reading even if the first sentence of § 8.14.13(c) were

read in isolation. But in fact the second sentence further supports the conclusion that “if

possible” modifies “remove.” That sentence explains what an officer should do in the event

that it is not possible to remove an object. Such an explanation only makes sense if the first

sentence is read as distinguishing between situations in which objects can and cannot be

removed.

              The police also violated § 8.14.13’s requirement that the owner of the vehicle

“verify the completeness of the inventory by signature.” Officer Lehew admitted as much:

              Q.     In this case, neither you, nor Brokaw, followed that
                     policy, to have Morris verify by signature or refusal of
                     signature, whichever it may have been? You didn’t have
                     that opportunity in violation of your policy?

              A.     He was not on scene to be able to sign it; that’s correct.
              ...

              Q.     Is there anything in your policy that provides to waive
                     the signature or to deviate from your policy because a
                     defendant is taken from the scene?

              A.     No. There is nothing in our policy that states that.
              Clearly, then, Lehew did not follow the Inventory Policy in that he did not ask

Morris to remove his valuables and did not ask Morris to verify the inventory by signature.



              Where, as here, a formal, written policy does exist, and where officers violate

that policy, the inventory search is not restricted in the manner required by Colorado v.

Bertine, 479 U.S. 367 (1987). In United States v. Bridges, 245 F. Supp. 2d 1034, 1037 (S.D.

Iowa 2003), the District Court held an inventory search invalid for failing to comply with

written procedures, even where an officer testified that it was “standard operating procedure

. . . to impound a vehicle for many unwritten reasons not contained in the policy.” See also

United States v. Maple, 348 F.3d 260, 263-65 (D.C. Cir. 2003) (invaliding an automobile

search where the police failed to follow their own procedures). I therefore conclude that the

search cannot be upheld as a valid inventory search.2


2.
 The concurrence contends that we should first “determine whether the policy at issue
failed to specify the procedure to be employed for the specific factual scenario presented
in the case.” Concurring Op. at 4. But the Inventory Policy does not cite any example of
specific factual circumstances in which the removal of valuables and signature
requirements apply. Thus, if the requirements only apply where the policy “specif[ies]
the procedure to be employed for the specific factual scenario presented,” then the
requirements would, quite literally, never apply. Such a reading would nullify the
                                                                               (continued...)
                II. Inevitable Discovery and Search Incident to Arrest

              In the District Court, the government did not raise search incident to arrest or

inevitable discovery arguments, and the District Court did not rule on these issues. However,

the government now argues, and the majority concludes, that Morris’ cocaine would have

inevitably been discovered if the police had followed the Inventory Policy.

              Under the inevitable discovery doctrine, “[i]t is the government's burden to

show that the evidence at issue would have been acquired through lawful means.” United


2.
 (...continued)
Inventory Policy.
         Rather than listing every conceivable factual circumstance, the Inventory Policy
states a categorical rule. The owner “shall be asked to remove” valuables and he “shall
be requested to verify the completeness of the inventory by signature.” This mandatory
language contains no exceptions and therefore applies in all circumstances.

          To the extent that the concurrence suggests that we should consider the good
faith of the officers even if they violated the Inventory Policy, I cannot agree. Where
police violate their own procedures in circumstances such as these, courts invalidate the
search without any inquiry into subjective motivations. As the D.C. Circuit stated, “the
salient point is that whatever his good intentions, the officer failed to follow established
police policy and procedures.” Maple, 348 F.3d at 265 (emphasis added); Bridges, 245 F.
Supp. 2d at 1037 (invalidating an inventory search for failure to follow procedures even
though the “officer. . . may have been motivated solely by the reasons offered and not by
the hope of finding evidence of illegal activity”).
          Permitting the police to violate their own policies would effectively replace
judicial examination of written procedures, which Bertine requires, with an analysis of the
subjective intent of individual officers. See Bertine, 479 U.S. at 374 n.6 (“Our decisions
have always adhered to the requirement that inventories be conducted according to
standardized criteria.”) (citing Illinois v. Lafayette, 462 U.S. 640, 648 (1983); Opperman,
428 U.S. at 374-375). Applying Supreme Court doctrine, I would avoid questions of
subjective intent by objectively focusing on compliance with a written policy.
States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998). Here, “lawful means” would

require compliance with § 8.14.13(c), which mandates that police ask the suspect to remove

valuables from the vehicle. It appears that Lehew could have complied with this requirement

in two ways. First, he could have asked Morris to inventory the car before Morris was taken

to the hospital. Second, Lehew could have decided not to conduct an inventory search.

Section 8.14.6 of the Inventory Policy suggests that police are never required to conduct an

inventory search: “Legal Authority to Inventory: An authorized member of this agency may

conduct a motor vehicle inventory without a warrant or probable cause . . .” (emphasis

added.)

              The majority simply assumes that faced with this choice, Lehew would decide

to conduct the inventory search with Morris present, even though this would delay taking

Morris to the hospital for a blood-alcohol test. Given the officers’ desire to take Morris to

the hospital as soon as possible, I cannot view this decision as inevitable. In fact, Officer

Brokaw testified that he was anxious to get Morris to the hospital before his blood-alcohol

level began to drop.

              While the Inventory Policy suggests that he could have chosen not to perform

the inventory, Lehew’s testimony complicates matters: “We have a policy saying when we

have someone in custody, there is no other driver with the vehicle, we have to do an

inventory report.” (emphasis added.) If Lehew had no choice but to conduct an inventory,
then the only way to comply with the Inventory Policy would have been to inventory the car

with Morris present, a process that would have led to the discovery of the drugs.

              Because it is unclear from the record whether Lehew had discretion not to

conduct an inventory search, and because application of the inevitable discovery doctrine

turns on this determination, I would remand the case to the District Court for a determination

whether the evidence would inevitably have been discovered.

              In light of my disagreement with the majority, I must reach the government’s

final argument, that the police officers performed a valid search incident to arrest. I have

serious doubts that the search incident to arrest exception to the warrant requirement,

emanating from New York v. Belton, 453 U.S. 454, 460 (1981), should apply to this case,

where Lehew searched Morris’ car while Morris was en route to the hospital with Brokaw.

              In Belton, which involved the search of an automobile after the suspects had

exited the vehicle, the Supreme Court announced the following rule: “[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.” 453 U.S. at 460. The Courts of Appeals have extended Belton to great lengths,

in some cases upholding searches that occur while the suspect is handcuffed, in a police
cruiser at the scene of the crime, or both.3 However, courts are divided on the precise issue

in this case, whether a search incident to arrest is valid when, at the time of the search, police

have transported the suspect away from the scene of the crime.

                 In United States v. Lugo, 978 F.2d 631, 635 (10th Cir. 1992), the Tenth Circuit

held that a search is not contemporaneous with an arrest where the suspect has been

transported from the scene of the crime. The court explained:

                 In this case, when the search of Lugo’s truck began, Lugo was
                 no longer at the scene. He was handcuffed and sitting in the
                 back seat of a patrol car proceeding toward Green River. Once
                 Lugo had been taken from the scene, there was obviously no
                 threat that he might reach in his vehicle and grab a weapon or
                 destroy evidence. Thus, the rationale for a search incident to
                 arrest had evaporated. [The police officer’s] inventory was not
                 contemporaneous because it was remote in time and in place as
                 regards Lugo and his truck being in entirely different locations,
                 and no exigency existed.

Id. at 635.4

3.
     See United States v. Doward, 41 F.3d 789, 791 n.1 (1st Cir. 1994) (collecting cases).
4.
 The Tenth Circuit has repeatedly reaffirmed this holding. See United States v. Edwards,
242 F.3d 928, 937-38 (10th Cir. 2001) (holding that a search that occurred when the
suspect was handcuffed in a police car, after being arrested 100-150 feet away from his
vehicle, was not a valid search incident to arrest); United States v. Dennison, 410 F.3d
1203, 1209 (10th Cir. 2005); United States v. Walker, No. 00-1513, 2002 U.S. App.
                                                                               (continued...)
              In United States v. McLaughlin, 170 F.3d 889, 891-92 (9th Cir. 1999), the

Ninth Circuit reached the opposite conclusion, stressing that the Belton rule is categorical:

              Because it is a bright-line rule that may be invoked regardless of
              whether the arresting officer has an actual concern for safety or
              evidence, we have held that the applicability of the Belton rule
              does not depend upon a defendant’s ability to grab items in a car
              but rather upon whether the search is roughly contemporaneous
              with the arrest.

              The First Circuit decided a similar issue in Doward, where it upheld a search

that began while the suspect was on the premises but continued after he was transported

away. 41 F.3d at 791. The Court reasoned that Belton established a bright-line rule designed

to prevent courts from second guessing police officers’ decisions. Id. at 792-93. The court

noted that although there was no real risk in Belton that suspects already outside the car

would be able to reach back into the passenger compartment, Belton still upheld the search.

Id. at 793.

              Subsequent to Doward, Lugo, and McLaughlin, the Supreme Court decided

Thornton v. United States, 541 U.S. 615 (2004), which extends Belton, holding that police



4.
 (...continued)
LEXIS 2707 (10th Cir. Feb 20, 2002).
may conduct a search incident to arrest of the passenger compartment, even when police

make contact only after the suspect leaves the vehicle. In Thornton, the suspect was

handcuffed and placed in the back of a police car, but, in contrast to this case, the police car

had not left the scene of the arrest. Id. at 618. At all events, the question whether

handcuffing the arrestee and placing him in the patrol car affected the applicability of the

search incident to arrest doctrine was not within the Court’s grant of certiorari. As the Court

emphasized, “[t]he question presented—‘[w]hether the bright-line rule announced in New

York v. Belton is confined to situations in which the police initiate contact with the occupant

of a vehicle while that person is in the vehicle,’—does not fairly encompass” such questions.

Id. at 624 n.4 (citation omitted).

              I am inclined to adopt the Tenth Circuit’s approach and conclude that Lehew

did not perform a valid search incident to arrest. Indeed, I have serious doubts that the search

incident to arrest doctrine discussed in Belton and Thornton can be stretched so far as to

encompass the present situation, in which the suspect has been carried away in handcuffs

from the scene of the crime. However, since the issue was not dealt with in the District

Court, I would remand the case to allow the District Court to address it in the first instance.
For these reasons, I respectfully dissent.
