United States v. Doward

• Court: Court of Appeals for the First Circuit
• Decided: December 14, 1994
• Docket: 93-2249
• Status: Published

Opinion

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