United States v. Zachary Hrasky

453 F.3d 1099, 2006 U.S. App. LEXIS 17987, 2006 WL 1982935

Opinions

COLLOTON, Circuit Judge.

Zachary Hrasky was charged by a grand jury with unlawful possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Prior to trial, he moved to suppress evidence, including two firearms, obtained during a search of his vehicle. The district court granted the motion, and the government appeals. See 18 U.S.C. § 3731. We reverse.

I.

On July 2, 2004, at approximately 3:45 p.m., Nebraska State Trooper Jeff Wallace stopped a truck driven by Hrasky in Scotts Bluff County, Nebraska. Wallace had reason to believe that Hrasky was driving without a proper license, so he brought Hrasky to the patrol car and made further inquiry. Trooper Wallace then determined that Hrasky was driving on a suspended license and that this was his third such offense. Based on this information, Wallace handcuffed Hrasky and placed him in the back of the patrol car.

When Wallace informed Hrasky that he would not be released with a citation, Hrasky immediately expressed a strong aversion to going to jail and asked whether he could instead speak with a narcotics investigator about his knowledge of drug crimes in the area. Trooper Wallace acceded to Hrasky’s request and summoned Investigator Cody Enlow, a member of the Western Intelligence Narcotics Group Task Force. Enlow arrived at the scene of the traffic stop shortly after 4:00 p.m., and entered Wallace’s patrol car to speak with Hrasky.

Enlow spoke with Hrasky for approximately 45 minutes about becoming a confidential informant. During that time, Trooper Wallace reserved judgment on whether Hrasky would be subjected to a full custodial arrest and transported from the scene. If Investigator Enlow reached an agreement with Hrasky involving cooperation in drug trafficking investigations, Wallace was prepared to consider simply giving Hrasky a ticket and releasing him. Ultimately, however, it became apparent to Investigator Enlow that Hrasky was “not in a position or not ready to make” a commitment to help law enforcement. En-low thus told Trooper Wallace that Enlow was not “going to do anything” with Hrasky, and that Wallace should proceed as he would have done before Hrasky broached the possibility of cooperation.

At approximately 5:05 p.m., Trooper Wallace, Investigator Enlow, and another officer who had arrived at the scene began a search of Hrasky’s truck. While searching the passenger area of the truck’s extended cab, Enlow encountered a plastic insert covering a small cubby hole. The insert was loose, so Enlow pulled it up, and he discovered two handguns beneath the plastic.

After the search was completed, Trooper Wallace called a tow truck to remove Hrasky’s vehicle. The tow truck arrived at approximately 5:53 p.m., and Hrasky was then taken to jail. After he was indicted for possession of the weapons found within his truck cab, Hrasky moved to suppress the evidence uncovered during the search, arguing that it was the fruit of an unreasonable search conducted in violation of the Fourth Amendment. A magistrate judge, finding a “close question” whether the search was permissible as a contemporaneous incident of Hrasky’s arrest, recommended that the defendant’s motion to suppress be granted. The district court later adopted the magistrate’s report and recommendation. Although the court agreed that the initial traffic stop was constitutional, it held that the search was not incident to Hrasky’s arrest because it was not “contemporaneous” with the arrest. The court also rejected the government’s alternative contention that the search was permissible as a standard inventory of the vehicle. On appeal, the government contends only that the search was consistent with the Fourth Amendment as a search incident to Hrasky’s arrest.

II.

We are required once again to apply the “bright-line” rule of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which provides 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 , 101 S.Ct. 2860. Belton built on United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), which held that a lawful custodial arrest establishes authority to conduct a full search of the arrestee’s person, and that such a search is “not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” 414 U.S. at 235, 94 S.Ct. 494. Robinson observed that a lawful custodial arrest, involving “the taking of a suspect into custody and transporting him to the police station,” creates extended exposure to the arrestee that presents heightened danger to the arresting officer. Id. While the authority to search was “based upon the need to disarm and to discover evidence,” the Court held that this authority “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.” Id.

Belton similarly rejected the contention that “ ‘there must be litigated in each case the issue of whether or not there was present one of the reasons’ ” supporting a search incident to arrest. 453 U.S. at 459, 101 S.Ct. 2860 (quoting Robinson, 414 U.S. at 235, 94 S.Ct. 467). The Court sought to establish a “workable rule” for this category of cases, because “[wjhen a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.” Id. at 459-60, 94 S.Ct. 467. Thus, in the case of a full custodial arrest of an “occupant” or “recent occupant” of a vehicle, id. at 460, 94 S.Ct. 467, the police may search the passenger compartment of the vehicle as “a contemporaneous incident” of that arrest. Such a search to ensure safety and to preserve evidence is “reasonable” under the Fourth Amendment. Thornton v. United States, 541 U.S. 615, 623, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004). “The need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment, justifies the sort of generalization which Belton enunciated.” Id. at 622-23,124 S.Ct. 2127.

Applying the Belton rule, our court has upheld searches of automobiles incident to arrest where the arrestee has exited the vehicle and has been handcuffed and placed in a police officer’s patrol car, e.g., United States v. Barnes, 374 F.3d 601, 603 (8th Cir.2004), or even removed from the scene entirely. United States v. Snook, 88 F.3d 605, 606-08 (8th Cir.1996); United States v. McCrady, 774 F.2d 868, 871-72 (8th Cir.1985). Similar cases from other courts of appeals “are legion.” Thornton, 541 U.S. at 628, 124 S.Ct. 2127 (Scalia, J., concurring in judgment) (citing cases). Because Belton established a “bright-line rule” permitting searches regardless of whether there is actual concern for safety or evidence in a particular case, the analysis in these decisions has focused on whether the search is “roughly contemporaneous with the arrest” or conducted within a “reasonable time” after obtaining control of the vehicle. E.g., United States v. McLaughlin, 170 F.3d 889, 891-92 (9th Cir.1999). It has been thought that incapacitation of the arrestee does not make a subsequent search of the vehicle unreasonable (on the theory, for example, that the search is not “contemporaneous with the arrest”), because Belton’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.” United States v. Doward, 41 F.3d 789, 793 (1st Cir.1994) (emphasis added by Do-ward). Despite some recent interest in rethinking the doctrine, Thornton, 541 , 124 S.Ct. 2127 (O’Connor, J., concurring in part); id. at 628, 124 S.Ct. 2127 (Scalia, J., concurring in judgment), the binding authorities from our court are consistent with the prevailing rationale, and they guide our analysis here.

Under the Belton framework, we see merit in the view that the determination whether a search is a “contemporaneous” incident of an arrest involves more than simply a temporal analysis. In the context of a rule whose applicability does not depend on the presence of one of the specific reasons supporting a search incident to arrest, it is sensible to conclude that “a search need not be conducted immediately upon the heels of an arrest, but sometimes may be conducted well after the arrest, so long as it occurs during a continuous sequence of events.” United States v. Smith, 389 F.3d 944, 951 (9th Cir.2004). The focus should be “not strictly on the timing of the search but its relationship to (and reasonableness in light of) the circumstances of arrest.” Id. Like our court in Snook and McCrady, the Ninth Circuit approved a search as incident to an arrest, even though it was conducted five minutes after the defendant was removed from the scene, because the arrest, the completion of required paperwork, and the subsequent search were “one continuous series of events closely connected in time.” United States v. McLaughlin, 170 F.3d at 893. While we have said in dicta that the temporal analysis for searches of luggage belonging to an arrestee is “constitutionally fairly strict,” Curd v. City Court of Judsonia, 141 F.3d 839, 843 (8th Cir.1998), this observation is not inconsistent with framing “the determinative question” as “whether the time and distance between elimination of the danger and performance of the search were reasonable.” United States v. Han, 74 F.3d 537, 543 (4th Cir.1996).

The precise context is important to the reasonableness of the search, and it is significant that during the sixty minutes that Hrasky was in the patrol car, the officers were unsure whether he would be transported to the police station for booking, or released at the scene with only a citation. A police officer seeking to apply the Supreme Court’s “bright-line rules” reasonably could be concerned, if the police elected merely to issue a citation, whether a search incident to the initial arrest would have been unauthorized. Cf. Knowles v. Iowa, 525 U.S. 113, 118-19, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (holding that “search incident to citation” violated Fourth Amendment). It was only after Hrasky was deemed unable or unwilling to assist law enforcement that the trooper determined to make a “full custodial arrest” in the sense that underlies the doctrine of searches incident to arrest — “the taking of a suspect into custody and transporting him to the police station.” Robinson, 414 U.S. at 235, 94 S.Ct. 467; see also Atwater v. City of Lago Vista, 532 U.S. 318, 324, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); id. at 363-64, 121 S.Ct. 1536 (O’Connor, J., dissenting).¹ The search of Hrasky’s truck certainly was contemporaneous with this decision to proceed with a full custodial arrest. Although an hour had elapsed since the initial detention, we think that it was still reasonable for police to consider Hrasky a “recent occupant” of the truck. The episode began with an encounter between the trooper and Hrasky at the vehicle, and the search was the culmination of a continuing series of events at the scene arising from the traffic stop. See United States v. Fiala, 929 F.2d 285, 288 (7th Cir.1991) (holding that search involved “straightforward” application of search incident to arrest doctrine, where defendant was arrested for driving without license, but search was not conducted until drug-sniffing dog arrived ninety minutes after arrest); State v. Smith, 120 Idaho 77, 813 P.2d 888, 891 (1991) (holding that search of car at scene of arrest conducted thirty minutes after arrest was constitutional).

The scenario in this case is quite different from the unreasonable search in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), overruled in part on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), where police searched a locked footlocker found in the trunk of a vehicle belonging to an arrestee, but did so ninety minutes after the arrest, at a time when the suspects, the car, and the footlocker had been transported from the scene of the arrest to the local federal building. Id. at 15, 97 S.Ct. 2476; see also United States v. Wells, 347 F.3d 280, 287 (8th Cir.2003) (declining to sanction search of automobile as one incident to arrest where arrestee and vehicle were removed from scene of arrest, and vehicle was searched at police station according to standard procedure for inventory searches). The search here took place at the scene of the arrest, immediately after the police determined to proceed with a full custodial arrest. We also find this case distinguishable from United States v. Vasey, 834 F.2d 782 (9th Cir.1987), where police searched an arrestee’s car some thirty to forty-five minutes after he was arrested, handcuffed, and placed in a patrol car. There was no doubt from the outset that Vasey would be subjected to a full custodial arrest, because the police learned immediately of an outstanding arrest warrant for possession of dangerous drugs. Id. at 784. The events between the initial detention and the search were not, as here, part of a continuing series of events related to effecting the full custodial arrest, but rather involved other avenues of investigation by the officers, including interrogation of the arrestee. Id. at 787; see McLaughlin, 170 F.3d at 892.

We are faced here with an unusual situation in which the arrestee initiated discussions with officers in an effort to persuade them to issue a citation in lieu of carrying out a full custodial arrest. Once the events played out, and the officers determined to make a full custodial arrest, the search of Hrasky’s vehicle was conducted immediately. We think a police officer relying on Belton for a “clear rule, readily understood by police officers,” Thornton, 541 U.S. at 623, 124 S.Ct. 2127, would justifiably be confused to learn that he is authorized to search a vehicle after a suspect undoubtedly destined for full custodial arrest is handcuffed and placed in a patrol car at the scene, Barnes, 374 F.3d at 603, and even after a suspect has been placed in a patrol car and removed from the scene, Snook, 88 F.3d at 606-08; McCrady, 774 F.2d at 871-72, but not authorized to search a car immediately after an arrestee, still at the scene, unsuccessfully attempts to negotiate his release with a citation. Under existing doctrine as developed under Belton, we conclude that the search was reasonable.

The order of the district court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

1 . The Magistrate Judge relied in part on an assumption that because a “tow truck had already been called” while Hrasky bargained for his release, the vehicle would have been impounded even if Hrasky had been released with a citation. A videotape of the incident, however, shows that a tow truck was not summoned until more than thirty minutes after officers began their search of Hrasky's vehicle.