UNITED STATES of America, Plaintiff-Appellant, v. John Lee McLAUGHLIN, Defendant-Appellee

170 F.3d 889, 99 Daily Journal DAR 2423, 99 Cal. Daily Op. Serv. 1892, 1999 U.S. App. LEXIS 4149, 1999 WL 137739

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 1999
• Docket: 98-30027
• Status: Published

Opinions

Opinion by Judge DAVID R. THOMPSON; Concurrence by Judge TROTT.

DAVID R. THOMPSON, Circuit Judge:

A police officer stopped appellee John Lee McLaughlin for driving with an illegally tinted rear window and subsequently arrested him on an outstanding warrant. Five minutes after the arresting officer drove McLaughlin from the scene, a backup officer searched McLaughlin’s car and found a brick of marijuana. A warrant was obtained, and a further search revealed methamphetamine and more marijuana.

McLaughlin was charged with possession of marijuana and methamphetamine with intent to distribute, both in violation of 21 U.S.C. § 841(a)(1). The district court granted McLaughlin’s motion to suppress, determining that the initial warrantless search of his car was not performed contemporaneously with his arrest and therefore could not be deemed a search incident to a lawful arrest. Discovery of the additional drugs followed as a result of the initial search; therefore, all products of both searches were suppressed.

The government appeals. We have jurisdiction under 18 U.S.C. § 3731, and we reverse and remand.

FACTS

On August 8, 1998, Officer Gary Bell of the La Grande, Oregon, Police Department observed McLaughlin driving with what appeared to be an illegally tinted rear window, in violation of Oregon law. Officer Bell pulled McLaughlin over without incident. Officer Bell asked McLaughlin to produce his driver’s license, proof of registration, and insurance. McLaughlin produced a registration notice and insurance documents, but no driver’s license. Officer Bell then called the police dispatcher, who responded that McLaughlin’s driver’s status was valid but that he had an outstanding warrant for failure to appear on a charge of driving with a suspended license. Upon learning of the outstanding warrant, Officer Bell radioed for a backup officer.

Officer Eckhart, the backup officer, arrived, told McLaughlin to step out of his car, and then placed him under arrest on the outstanding warrant charge. Officer Bell handcuffed and patted down McLaughlin, and placed him in the back seat of the patrol car. Officer Bell then advised McLaughlin that his car was going to be impounded pursuant to the La Grande City ordinance for driving without insurance. Officer Bell asked Officer Eckhart to take care of the impound, and then Bell drove McLaughlin to the Union County Jail.

While Officer Bell was in route to the jail, Officer Eckhart filled out impoundment forms. These forms require the officer to record information about the driver, registration, lienholder, vehicle identification number, and color of the vehicle. After completing these forms, Officer Eckhart began to search McLaughlin’s car. He began his search approximately five minutes after Officer Bell had departed with McLaughlin. Approximately eleven minutes into the search, Officer Eckhart found a blue backpack behind the front passenger seat. He opened it and found a brick of marijuana.

Officer Eckhart then radioed Officer Bell and asked him to return to the scene, where Officer Bell verified that the backpack contained marijuana. Officer Bell returned to the jail and obtained McLaughlin’s consent to search the entire vehicle. Notwithstanding this consent, Officer Bell requested and obtained a search warrant. A more thorough search of the car uncovered seven pounds of marijuana, three ounces of methamphetamine, a marijuana pipe, and over $1000 in cash.

McLaughlin moved to suppress all evidence seized from his car and any statements he made to the officers. The district court determined that the stop of the ear was proper, but concluded that because the search was not a valid inventory search,¹ it could only be valid if it was a search incident to a lawful arrest. Holding that the search was not incident to the arrest because it was commenced five minutes after McLaughlin had been driven away from the scene, the district court suppressed all products of the search.

DISCUSSION

We must decide whether an automobile search that is commenced five minutes after a defendant has been arrested and removed from the scene qualifies as a “search incident to arrest.” We note at the outset that the Supreme Court’s recent decision in Knowles v. Iowa, - U.S. -, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), does not control this ease because it involves what may be called a “search incident to a citation,” not a “search incident to an arrest.” Thus, New York v. Belton, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and its progeny control the present case without amendment by Knowles.2 The government argues that the search was proper under Belton’s bright-line rule that a police officer may search the passenger compartment of an automobile and its containers as a “contemporaneous incident of [a lawful] arrest.” Id. at 460, 101 S.Ct. 2860. We agree because the search in this case occurred during a continuous series of events closely connected in time to the arrest.

The underlying rationale of Belton was to provide a bright-line rule while balancing privacy and law enforcement interests: “[T]he protection of the Fourth ... Amendment] ‘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, 101 S.Ct. 2860 (citations omitted). Such rules are necessary because 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, 101 S.Ct. 2860.

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. See United States v. Lorenzo, 867 F.2d 561, 562 (9th Cir.1989) (per curiam) (adding “actual grabbable area” requirement to Belton’s “contemporaneous” requirement would “place this circuit at odds with current Supreme Court precedent”); United States v. Moorehead, 57 F.3d 875, 878 (9th Cir.1995) (the- exception does “not turn upon a defendant’s actual ability to grab items in the passenger compartment” of his car); see also United States v. Nelson, 102 F.3d 1344, 1346-47 (4th Cir.1996) (the validity of a search incident to an arrest “does not end at the instant the risks justifying the search come to an end”).

In addressing Belton’s requirement that a warrantless search must be a “contemporaneous incident of [the] arrest” to be valid, Belton, 453 U.S. at 460, 101 S.Ct. 2860, some courts have characterized the critical issue as whether the arresting officers conducted the search as soon as it was practical to do so, including whether the officers took intervening actions not directly related to the search. See, e.g., United States v. Abdul-Saboor, 85 F.3d 664, 668 (D.C.Cir.1996) (trial courts should focus on “whether the arrest and search are so separated in time or by intervening events that the cannot fairly be said to have been incident to the former”).

In granting the motion to suppress in the present case, the district court relied heavily on United States v. Vasey, 834 F.2d 782 (9th Cir.1987), and United States v. Ramos-Oseguera, 120 F.3d 1028 (9th Cir.1997). In Va-sey, the search of a lawfully arrested individual’s car “took place anywhere from thirty to forty-five minutes after [the defendant] had been arrested, handcuffed, and placed in the rear of the police vehicle.” Vasey, 834 F.2d at 787. The Vasey court explained that this interval of time took the search “outside the Belton prophylactic rule because it was not conducted contemporaneously with the arrest.” Id. Similarly, the court in Ramos-Oseguera concluded the search of a car that occurred after the car had first been moved to the police station and then towed away did not occur roughly contemporaneously with the arrest. Ramos-Oseguera, 120 F.3d at 1036.

The search of McLaughlin’s car is distinguishable from the searches in Vasey and Rarms-Oseguera. The length of time that passed before the search began in both cases was considerably longer than the five-minute delay in the instant search. The search in Vasey occurred between thirty and forty-five minutes after the arrest. Although Ramos-Oseguera does not specify how much time elapsed between the defendant’s arrest and the search of the car, we may fairly infer that the interval was significantly greater than the five-minute delay in the search of McLaughlin’s car.

Another distinguishing factor in the present case is that the delay was caused by the completion of paperwork for impounding McLaughlin’s car as a result of his arrest. In Vasey, the thirty to forty-five minute delay was due in part to the officers holding several conversations with the defendant in an effort to obtain his consent to search the car. Vasey, 834 F.2d at 787. In Ramos-Oseguera, there was an intervening event of the arresting officers moving the defendant’s car to the police station before searching it. Ramos-Oseguera, 120 F.3d at 1036. Here, the defendant’s arrest, the filling out of the impound paperwork, and the search of his car were all part of a continuous, uninterrupted course of events, all occurring within a relatively brief period of time.

There is no fixed outer limit for the number of minutes that may pass between an arrest and a valid, warrantless search that is a contemporaneous incident of the arrest. Instead, courts have employed flexible standards such as “roughly contemporaneous with the arrest,” Moorehead, 57 F.3d at 878, and within “a reasonable time” after obtaining control of the object of the search. Nelson, 102 F.3d at 1346 (“although the ‘incident to arrest’ justification for warrantless searches does not permit an indefinite delay in a search ... the justification does last for a reasonable time after the officers obtained exclusive control of the container that is to be searched”).

The First Circuit discussed the permissible temporal leeway between a defendant’s arrest and search in United States v. Doward, 41 F.3d 789 (1st Cir.1994). There, police stopped the defendant for a traffic violation and then conducted a license cheek which revealed that he had an outstanding warrant. The defendant was ordered out of the car, handcuffed, and placed in the back of a police car. Three minutes after he had been arrested and thirty seconds after he had been driven away from the scene, a police search of the defendant’s car revealed a loaded handgun. See id. at 791. The defendant argued that the search 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 grabbed the gun. See id. In rejecting the defendant’s argument, the First Circuit correctly explained that “[t]he Belton majority’s circumspect use of the" discrete phrase ‘contemporaneous incident of that arrest’ ... plainly implies a greater temporal leeway between the custodial arrest and the search than [the defendant] advocates.” Doward, 41 F.3d at 793.

Also useful to our determination of whether the initial search of McLaughlin’s car was lawful is our holding in United States v. Hudson, 100 F.3d 1409 (9th Cir.1996). In Hudson, a non-vehicular case, officers found the defendant in his bedroom in his parents’ house, “ordered him out of the room, handcuffed him, removed him from the house, and continued their [security] sweep.” 100 F.3d at 1413. About three minutes later, one of the officers returned to the bedroom in which the defendant had been found and conducted a search resulting in the discovery of a gun and drug paraphernalia. See id. We affirmed the denial of the defendant’s motion to suppress, holding that a warrantless search “may be conducted shortly after the arrestee has been removed from the area” as a contemporaneous incident of an arrest. Id. at 1419.

Although Hudson involved the search of a house, not a car, it is nonetheless instructive. In Hudson, the search without the defendant present was valid because it was conducted as a contemporaneous incident of the defendant’s arrest, even though the defendant was not then “at the scene.” As the D.C. Circuit stated in United States v. Abdul-Saboor:

“[A] search is conducted incident to an arrest so long as it is an ‘integral part of a lawful custodial process.’ ” Id. Indeed, we specifically advised trial courts not to focus upon “whether the suspect held the item in his grasp or could have reached for it at the moment of the arrest.” Id. The relevant distinction turns not upon the moment of arrest versus the moment of the search but upon whether the arrest and search are so separated in time or by intervening acts that the latter cannot be said to have been incident to the former.

Abdul-Saboor, 85 F.3d at 668 (quoting United States v. Brown, 671 F.2d 585, 587 (D.C.Cir.1982)).

In the present case, the arrest, the filling out of the impound paperwork before searching the car, and the initial search were all one continuous series of events closely connected in time. In the words of the Belton court, the search was a “contemporaneous incident of [a lawful] arrest.” Belton, 453 U.S. at 460, 101 S.Ct. 2860. Accordingly, we reverse the district court’s order granting McLaughlin’s motion to suppress and remand this case to the district court for further proceedings.

REVERSED AND REMANDED.

1 . The search was improper as an inventory search because, according to Oregon regulations,' an officer conducting an inventory' search may not open any closed packages within the vehicle.

2 . In Knowles, a police officer issued defendant Knowles a citation after stopping him for speeding. See Knowles,- U.S. at -, 119 S.Ct. at 486. Even though the officer did not arrest Knowles, the officer conducted a full search of the car without Knowles's consent or probable cause and found marijuana and a “pot pipe.” Id. After his arrest for violation of state controlled substances laws, Knowles challenged the constitutionality of the search.

Knowles does not control the present case because the Knowles Court carved out a rule for what may be called a “search incident to citation." Knowles does not disturb the bright-line Belton rule. Id. at 488 (citing Belton with approval). Instead, the Knowles Court examined the historical rationales underlying "search incident to arrest” cases (officer safety and preservation of evidence) to provide guidance in “search incident to citation” cases, holding that in “search incident to citation" cases, an officer's search must be justified by either officer safety or preservation of evidence. Id. at 487.