Affirmed by Supreme Court, May 24, 2004



Petition for cert granted by S. Ct.
order filed 11/3/03.
                               PUBLISHED

             UNITED STATES COURT OF APPEALS

                   FOR THE FOURTH CIRCUIT

4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
     Plaintiff-Appellee,

      v.                                                  No. 02-4382

MARCUS THORNTON,
     Defendant-Appellant.
4444444444444444444444444444444444444444444444448

            Appeal from the United States District Court
           for the Eastern District of Virginia, at Norfolk.
                Rebecca Beach Smith, District Judge.
                            (CR-01-235)

                     Argued: February 24, 2003

                       Decided: April 3, 2003

   Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

____________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Widener and Judge Williams joined.

____________________________________________________________

                              COUNSEL

ARGUED: Walter Bruce Dalton, Assistant Federal Public Defender,
Norfolk, Virginia, for Appellant. Laura Marie Everhart, Assistant
United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:
Frank W. Dunham, Jr., Federal Public Defender, Norfolk, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Norfolk, Vir-
ginia, for Appellee.

____________________________________________________________
                               OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

    A jury convicted Marcus Thornton of possession with intent to dis-
tribute cocaine base and two firearm offenses. On appeal, he chal-
lenges only the district court's refusal to suppress a firearm found in
his automobile, maintaining that it was not legally obtained pursuant
to a "search incident to arrest." For the reasons that follow, we affirm.

                                   I.

   At a pretrial suppression hearing, the parties produced the follow-
ing evidence.

   On July 21, 2001, Officer Deion L. Nichols, of the Norfolk, Vir-
ginia Police Department, driving in an unmarked police cruiser,
observed a gold Lincoln Town Car pull to his left that "wouldn't
come all the way up to [him]." Assuming that the driver of the Lin-
coln suspected that he was a police officer, Officer Nichols pulled
over to a side street and made a right turn. After the Lincoln passed
him, Officer Nichols ran a check on the tags. The check revealed that
the tags had been issued to a 1982 Chevy two-door car rather than a
Lincoln Town Car. Officer Nichols followed the Lincoln, intending
to pull it over. The Lincoln was driven into a parking lot, however,
before Officer Nichols "had a chance to do so." Thornton parked the
Lincoln and exited the vehicle. Officer Nichols "pulled in behind him
and exited [his] vehicle." Officer Nichols, who was in uniform, then
approached Thornton, asked him for his driver's license, and told him
that his tags did not match the registered vehicle.

    Thornton "appeared nervous" and "right away started rambling,"
"licking his lips," and "sweating." He told Officer Nichols that "some-
one had just given him the car." "For officer safety," Officer Nichols
asked Thornton if he had any narcotics or weapons on him. Thornton
said no. The officer then asked him if there were any weapons or nar-
cotics in the car. Thornton again said no. Officer Nichols, "again for
officer safety," patted Thornton down, after asking if he could do so.
Officer Nichols felt a "bulge" in Thornton's front left pocket. The

                                   2
officer "didn't know what it was, so [he] just kind of casually asked
Thornton, `Do you have any illegal narcotics on you?'" Thornton said
that he had "a bag of weed." Officer Nichols then asked him if he
could have the bag. Thornton "reached into his pocket" and "pulled
out two individual bags," one containing three bags of a "green leafy
material consistent with marijuana" and the other with a "large
amount of an off-white rocklike substance consistent with crack
cocaine."

   At that point, Officer Nichols handcuffed Thornton and advised
him that he was under arrest. (At trial, Officer Nichols testified that
he immediately thereafter put Thornton in the back of the patrol car.)
Then, "[i]ncident to that arrest," the officer searched the vehicle and
found a "BryCo .9-millimeter handgun" under the front driver's seat,
where he had observed Thornton sitting. On the way to the police sta-
tion, Thornton told Officer Nichols, "without any provocation," that
he had "just robbed some cat out at Ocean View, and that's where he
got the dope."

   On December 12, 2001, a grand jury charged Thornton with pos-
session with intent to distribute cocaine base, in violation of 21
U.S.C.A. § 841(a)(1) (West 1999), possession of a firearm after hav-
ing been previously convicted of a crime punishable by a term of
imprisonment exceeding one year, in violation of 18 U.S.C.A.
§ 922(g)(1) (West 2000), and possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1)
(West 2000).

   Thornton moved to suppress the drugs, his statement, and the fire-
arm on various grounds. After a hearing, the district court denied the
motion, finding, inter alia, that Officer Nichols lawfully searched
Thornton's automobile incident to his arrest and, alternatively, that
Officer Nichols could have conducted an inventory search of the auto-
mobile.

   On February 8, 2002, a jury convicted Thornton on all three counts.
Thornton moved for a new trial, again arguing that the automobile
search was unlawful. The district court denied the motion based on
the earlier suppression ruling. On May 3, 2002, the district court sen-
tenced Thornton to 180 months imprisonment and eight years of

                                  3
supervised release. Thornton appeals, challenging only the district
court's refusal to suppress the firearm; he does not challenge the
refusal to suppress the drugs or his statement.

                                   II.

   In reviewing the district court's denial of a motion to suppress evi-
dence, we review legal conclusions de novo and factual findings for
clear error. See United States v. Weaver, 282 F.3d 302, 309 (4th Cir.
2002).

   Thornton's sole contention on appeal is that the search incident to
arrest doctrine, as applied to searches of automobiles in New York v.
Belton, 453 U.S. 454 (1981), required Officer Nichols to "initiate . . .
contact with Thornton, either by actually confronting Thornton, or
signaling confrontation with Thornton, while Thornton was still in his
vehicle."

                                  A.

   It is a well-settled "first principle of Fourth Amendment jurispru-
dence that the police may not conduct a search unless they first con-
vince a neutral magistrate that there is probable cause to do so."
Belton, 453 U.S. at 457. In Chimel v. California, 395 U.S. 752 (1969),
the Court discussed the rationale for and limitations of the "search
incident to arrest" exception to that warrant requirement:

          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 offi-

                                   4
          cer 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 con-
          trol" — construing that phrase to mean the area from within
          which he might gain possession of a weapon or destructible
          evidence.

Chimel, 395 U.S. at 762-63. The Court has often reiterated the "two
historical rationales for the `search incident to arrest' exception:
(1) the need to disarm the suspect in order to take him into custody,
and (2) the need to preserve evidence for later use at trial." Knowles
v. Iowa, 525 U.S. 113, 116 (1998) (citing, inter alia, United States v.
Robinson, 414 U.S. 218, 234 (1973); Chimel, 395 U.S. at 762-63).

   The Court in Belton applied those rationales to the arrest of an "oc-
cupant" of an automobile. See Belton, 453 U.S. at 460. In Belton, a
police officer stopped four men, who had sped past the officer. Id. at
455. The officer "gave chase, overtook the speeding vehicle, and
ordered its driver to pull it over to the side of the road and stop." Id.
After examining the driver's license and the vehicle registration, the
officer determined that none of the men owned the vehicle. Id. During
that time, the officer also smelled burnt marijuana and saw, on the
floor of the car, an envelope marked "Supergold," which he associ-
ated with marijuana. Id. at 455-56. Accordingly, the officer directed
the men to get out of the car and arrested them for unlawful posses-
sion of marijuana. Id. at 456. After they exited the vehicle, the officer
patted down each of them and "`split them into four separate areas of
the Thruway . . . so they would not be in physical touching area of
each other.'" Id. The officer then searched the passenger compart-
ment; he found Belton's jacket on the back seat, unzipped one of the
pockets of the jacket, and found cocaine. Id.

    The Supreme Court rejected Belton's argument that the search of
the passenger compartment of the car exceeded the permissible scope
of the search incident to his arrest. The Court began its analysis by
observing that for the protection of the Fourth and Fourteenth Amend-
ments to be realized, courts must fashion a clear set of rules that allow
police officers to easily determine in most situations "whether an
invasion of privacy is justified in the interest of law enforcement." Id.
at 458 (internal quotation marks omitted). Thus, the Court reasoned,

                                   5
"[a] single, familiar standard is essential 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." Id. (internal quotation marks omitted).

   The Court then noted the difficulty courts had experienced in fash-
ioning such a rule in the context of an automobile search incident to
an arrest:

          While the Chimel case established that a search incident to
          an arrest may not stray beyond the area within the immedi-
          ate control of the arrestee, 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.

Id. at 460. Because articles within a car's passenger compartment "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
ite[m],'" the Belton Court established the "workable rule" 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." Id. at 460
(quoting Chimel, 395 U.S. at 763) (footnotes omitted).1

                                   B.

   Thornton contends that the Belton rule does not govern this case
because he was not an "occupant of an automobile" when Officer
Nichols confronted him. In support of this contention, Thornton relies
primarily on a line of authority from the United States Court of
Appeals for the Sixth Circuit. See, e.g., United States v. Hudgins, 52
F.3d 115, 119 (6th Cir. 1995); United States v. Strahan, 984 F.2d 155,
____________________________________________________________
   1
     Although using "occupant " in stating its holding, the Belton Court
also, as noted above, referred to a "recent occupant." See id. at 460; id.
at 463 (Brennan, J., dissenting); see also United States v. Franco, 981
F.2d 470, 473 (10th Cir. 1992) (citing Belton for the proposition that
"[i]ncident to an arrest, police officers may search a vehicle of which the
arrestee was a recent occupant").

                                   6
159 (6th Cir. 1993). In Hudgins, the court elaborated on the principle
that Thornton urges us to adopt:

          Where the officer initiates contact with the defendant,
         either by actually confronting the defendant or by signaling
         confrontation with the defendant, while the defendant is still
         in the automobile, and the officer subsequently arrests the
         defendant (regardless of whether the defendant has been
         removed from or has exited the automobile), a subsequent
         search of the automobile's passenger compartment falls
         within the scope of Belton and will be upheld as reasonable.

           ....

          . . . However, where the defendant has voluntarily exited
         the automobile and begun walking away from the automo-
         bile before the officer has initiated contact with him, the
         case does not fit within Belton's bright-line rule, and a case-
         by-case analysis of the reasonableness of the search under
         Chimel becomes necessary.

52 F.3d at 119 (emphasis added). See also Strahan, 984 F.2d at 156-
57, 159 (following this rule and finding that Belton did not apply
because police silently observed the defendant park and exit his auto-
mobile and then immediately apprehended him approximately 30 feet
away).

   This court has not previously addressed the Sixth Circuit's limita-
tion on the Belton rule in a published opinion. We note, however, that
other courts of appeals have considered the question. Although one
court previously embraced a rule consistent with the Sixth Circuit's
limitation, see United States v. Fafowora, 865 F.2d 360, 362 (D.C.
Cir. 1989) (holding that "ambiguity" necessitating Belton's bright-line
rule does not apply "where the police come upon the arrestees outside
of an automobile"), three others have refused to do so. See United
States v. Sholola, 124 F.3d 803, 817 (7th Cir. 1997) (holding that
defendant who was next to open car door ready to enter it, was "`posi-
tively linked to [car] prior to his arrest'") (quoting United States v.
Adams, 26 F.3d 702, 705 (7th Cir. 1994)); United States v. Snook, 88
F.3d 605, 606 (8th Cir. 1996) (holding that fact that defendant "had

                                   7
just stepped out of his vehicle as the officer arrived and before his
arrest does not alter his status as an `occupant' of the vehicle");
United States v. Franco, 981 F.2d 470, 473 (10th Cir. 1992) (declin-
ing to adopt rule, advanced by defendant, that "unless an arrest was
made in the arrestee's automobile, a search of the automobile was not
`incident to the arrest' for the purpose of that exception to the warrant
requirement").

    State courts have also struggled with this issue. Compare, e.g.,
State v. Stehman, 783 N.E.2d 1, 6 (Ill. 2002) ("[W]e find the . . . anal-
ysis of the Sixth Circuit Court of Appeals in [ Hudgins] persuasive."),
with State v. Wanzek, 598 N.W.2d 811, 815 (N.D. 1999) ("We are not
persuaded by the line of cases which hold an arrestee is an occupant
only when arrested inside the vehicle or where the police initiate con-
tact with the arrestee before the arrestee exits the vehicle."); Glasco
v. Commonwealth, 513 S.E.2d 137, 141-42 (Va. 1999) (same).

    Given this division, it is not surprising that the Supreme Court
recently granted certiorari on the question of whether Belton's
"bright-line" rule "is limited to situations in which the officer initiates
contact with the occupant of a vehicle while that person remains
inside the vehicle." Florida v. Thomas, 532 U.S. 774, 776 (2001). In
Thomas, Florida's highest court expressly adopted the Sixth Circuit's
approach. See Thomas v. State, 761 So.2d 1010, 1013 (Fla. 1999)
("We find the recent analysis of the Sixth Circuit Court of Appeals
in [Hudgins] persuasive."). After full briefing and oral argument,
however, the Supreme Court dismissed the case for want of jurisdic-
tion. See Thomas, 532 U.S. at 781.

    After carefully considering the question and the conflicting author-
ity, we join those courts that have rejected the limitation of Belton to
situations in which "the officer initiates contact with the defendant,
either by actually confronting the defendant or by signaling confron-
tation with the defendant, while the defendant is still in the automo-
bile." Hudgins, 52 F.3d at 119. We do so for a number of reasons.

   First, the Supreme Court has clearly indicated, albeit in dicta, that
an officer may search an automobile incident to an arrest, even if the
officer has not initiated contact while the arrestee was still in the auto-
mobile. In Michigan v. Long, 463 U.S. 1032 (1983), officers on patrol

                                    8
in a rural area observed a speeding car turn down a road and swerve
into a shallow ditch. Id. at 1035. When the officers arrived at the
scene, they met Long, the sole occupant of the vehicle, "at the rear
of the car, which was protruding from the ditch onto the road," with
the driver's side door open. Id. at 1035-36. Although affirming a sub-
sequent search of the car's passenger compartment as a protective one
under Terry v. Ohio, 392 U.S. 1 (1968), the Court noted at the outset
that "[i]t is clear, and the respondent concedes, that if the officers had
arrested Long . . . they could have searched the passenger compart-
ment [under Belton]." Id. at 1035 n.1. The Court further explained:

          We stress that our decision does not mean that the police
          may conduct automobile searches whenever they conduct an
          investigative stop, although the "bright line" that we drew in
          Belton clearly authorizes such a search whenever officers
          effect a custodial arrest. An additional interest exists in the
          arrest context, i.e., preservation of evidence, and this justi-
          fies an "automatic" search.

Id. at 1049 n.14 (emphasis in original); see also Thomas, 532 U.S. at
776 (emphasizing the "bright-line" nature of the Belton rule).

   Further, the historical rationales for the search incident to arrest
doctrine — "the need to disarm the suspect in order to take him into
custody" and "the need to preserve evidence for later use at trial" —
do not permit the limitation on the Belton rule that the Sixth Circuit
has adopted and Thornton espouses. Knowles, 525 U.S. at 116.
"`[D]anger to an officer'" from an arrest and the "need to discover and
preserve evidence" continue to be concerns regardless of whether the
arrestee exits the automobile voluntarily or because of confrontation
with an officer. Id. at 117-18 (quoting Robinson, 414 U.S. at 234-35).
Neither the Sixth Circuit nor Thornton suggest otherwise.

   Indeed, we believe that Thornton's proposed limitation of the Bel-
ton rule would raise serious safety concerns for law enforcement per-
sonnel. A rule that requires officers to actually confront or signal
confrontation with an arrestee while the arrestee is in the automobile,
in order to justify a search of the automobile incident to arrest, could
very well endanger an officer. For instance, we can certainly imagine
the hesitancy of an officer to activate his lights and sirens if the offi-

                                    9
cer encounters the arrestee while conducting undercover surveillance
in an area. Moreover, when encountering a dangerous suspect, it may
often be much safer for officers to wait until the suspect has exited
a vehicle before signaling their presence, thereby depriving the sus-
pect of any weapons he may have in his vehicle, the protective cover
of the vehicle, and the possibility of using the vehicle itself as either
a weapon or a means of flight. Mandating that officers alert a suspect
to their presence before he sheds the protective confines of his vehicle
would force officers to choose between forfeiting the opportunity to
preserve evidence for later use at trial and increasing the risk to their
own lives and the lives of others. We decline to require officers to
make this choice. See Wanzek, 598 N.W.2d at 815 (The cases adopt-
ing the proposed limitation "raise grave public policy issues because
they create serious concerns for the safety of officers and others.");
Thomas, 761 So.2d at 1014-15 (Wells, J., dissenting) ("The reason for
this bright-line rule is officer safety, which is equally as much a con-
cern whether the officer initiates the contact, actually confronts the
person, or the person voluntarily exits the vehicle as long as the con-
nection with the vehicle is proximate to the arrest."); Stehman, 783
N.E.2d at 11 (Thomas, J., dissenting) ("[W]hether the defendant exits
voluntarily or involuntarily, there is always a danger to the officer
associated with the subsequent arrest and the proximity of the vehi-
cle.").

   Additionally, the limitation on the Belton rule that Thornton urges
could "encourage individuals to avoid lawful searches of their vehi-
cles by rapidly exiting or moving away from the vehicle as officers
approached." Wanzek, 598 N.W.2d at 815. Surely, "[p]olice officers
should not have to race from their vehicles to the arrestee's vehicle
to prevent the arrestee from getting out of the vehicle in order to con-
duct a valid search." Id.

    Nonetheless, we recognize the concerns of those courts that have
attempted to limit the scope of Belton to situations in which officers
have initiated contact with arrestees while still in the automobile. The
Belton rule cannot be stretched so as to render it limitless by permit-
ting officers to search any vehicle from which an arrestee has
emerged, regardless of how much time has elapsed since his exit or
how far he is from the vehicle when arrested.

                                  10
   In the case at hand, however, we note that Thornton concedes that
he was in close proximity to his vehicle when Officer Nichols
approached him. His concession is well-taken. Although the record is
not clear as to the precise distance between Thornton and his automo-
bile when Officer Nichols confronted him, the record does conclu-
sively show that Officer Nichols observed Thornton park and exit his
automobile and then approached Thornton within moments.

    Thus, "no doubt exists that the car was within [Thornton's] imme-
diate control at the beginning of his encounter with" Officer Nichols.
See United States v. Johnson, 114 F.3d 435, 440 (4th Cir. 1997) (so
noting in case involving question of unreasonable delay between
arrest and search of car). Stated differently, Thornton "was `positively
linked' to the searched vehicle prior to his arrest." Sholola, 124 F.3d
at 817 (quoting Adams, 26 F.3d at 705); id. at 823 (Wood, J., concur-
ring) ("The `positive link' required must, in keeping with Belton, be
one that requires physical proximity that is the equivalent of occu-
pancy of the automobile."); see also Franco, 981 F.2d at 473 (affirm-
ing validity of search under Belton because defendant "was a recent
occupant of his vehicle[,]" "the arrest was made in close proximity to
his vehicle[,]" and "[d]uring the illegal transaction [defendant] exer-
cised control over his vehicle and its contents"). The conceded close
proximity, both temporally and spatially, of Thornton and his car at
the time of his arrest provides adequate assurance that application of
the Belton rule to cases like this one does not render that rule limitless.2
Accordingly, we hold that Officer Nichols lawfully searched Thorn-
ton's automobile incident to the arrest. Because we affirm on this
ground, we decline to reach the district court's alternative holding that
Officer Nichols could have conducted a lawful inventory search.
____________________________________________________________
    2
      We also note that circuit precedent, which Thornton does not chal-
lenge, permitted Officer Nichols to separate Thornton from the vehicle
(in this case by handcuffing him and placing him in the patrol car) prior
to the search. See United States v. Milton, 52 F.3d 78, 80 (4th Cir. 1995)
(holding that Belton "applies even if the arrestee has been separated from
[the vehicle] prior to the search of the passenger compartment" (internal
quotation marks omitted)); see also 3 Wayne R. LaFave, Search & Sei-
zure § 7.1(c), at 448-49 (3d ed. 1996 & Supp. 2003) ("[U]nder Belton a
search of the vehicle is allowed even after the defendant was removed
from it, handcuffed, and placed in the squad car, or even if a single
defendant was in the custody of several officers.") (footnotes omitted)).

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                              III.

For the foregoing reasons, the judgment of the district court is

                                                       AFFIRMED.

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