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NOTES
CLARIFYING THORNTON: A BRIGHT-LINE
DEFINITION OF “RECENT OCCUPANT”
INTRODUCTION
More than twenty years ago in New York v. Belton,1 the
United States Supreme Court held that when law enforcement
officers arrest the occupant of an automobile, they may also
lawfully search the passenger compartment and all containers
located therein.2 More recently in Thornton v. United States,3 the
Court held that officers may search an automobile after arresting
a “recent occupant” of that automobile.4 Many scholars and
practitioners have criticized Thornton’s expansion of Belton for
different reasons.5 This Note argues the underlying problem
with Thornton is how its rule, while purporting to be an
extension of Belton, betrays the policy rationales underlying
Belton.
Belton’s rule and its intrusion into constitutionally protected
1. 453 U.S. 454 (1981).
2. See id. at 460 (“[W]e 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.”).
3. 541 U.S. 615 (2004).
4. See id. at 622 (“Belton allows police to search the passenger compartment
of a vehicle incident to a lawful custodial arrest of both ‘occupants’ and ‘recent
occupants.’ . . . In any event, . . . an arrestee’s status as a ‘recent occupant’ . . .
does not turn on whether he was inside or outside the car at the moment that
the officer first initiated contact with him.”).
5. See, e.g., Jason Lewis, Case Note, To Serve and Protect: Thornton v.
United States and the Newly Anemic Fourth Amendment, 56 MERCER L. REV.
1471, 1481-82 (2005) (“The Court’s holding in Thornton will only further erode
the citizens’ privacy rights as guaranteed by the Fourth Amendment.”); Carson
Emmons, Comment and Note, An Argument for Tossing Belton and All Its
Bastard Kin, 36 ARIZ. ST. L.J. 1067, 1092 (2004) (arguing Arizona should pass
state law circumventing Thornton and Belton altogether by permitting a search
incident to arrest only for items relating to the reasons for arrest). See also
infra note 65 (citing additional articles).
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privacy interests was premised upon the need for providing a
clear, “bright-line” rule.6 However, the Thornton Court failed to
advance this policy in its “recent occupant” designation. To the
contrary, Thornton turned Belton’s bright line into an ambiguous
standard, leaving state and federal courts to guess at what
renders an arrestee a “recent occupant.”7 In addition, police
officers are once again without clear guidance as to the legally
permissible boundaries of searches conducted incident to arrest.
Further complicating matters is the Court’s failure to
acknowledge the policy implications of a “recent occupant”
situation, such as promoting officer discretion and deterring
conduct that jeopardizes public safety. Instead, the Court
illogically relied upon the twin policy rationales of Chimel v.
California for justification.8
The absence of an easily applied definition of “recent
occupant” can be seen in the widely differing lower-court
interpretations of Thornton, which have produced a number of
contradictory state and federal rulings.9 To cite just two
6. See infra note 40.
7. For commentary on Thornton’s uncertainty and the likelihood of future
cases for clarification, see William E. Hellerstein, Sixteenth Annual Supreme
Court Review Program: A Year to Remember: The Supreme Court’s Fourth,
Fifth, and Sixth Amendment Jurisprudence for the 2003 Term, 20 TOURO L.
REV. 831, 847 (2005) (discussing the ambiguity of Thornton’s “temporal and
spatial” standard). Hellerstein presents a hypothetical situation where
application of Thornton leads to many seemingly unanswerable questions, and
predicts future cases will be sure to present similar questions.
8. Chimel v. California, 395 U.S. 752 (1969), permitted a search incident to
arrest of the arrestee’s person and the area within the arrestee’s “immediate
control,” construing that phrase to mean the area from within which the
arrestee might gain possession of a weapon or destructible evidence. Id. at 763.
The Court justified its holding on the basis of (1) ensuring officer safety, and
(2) preventing the destruction of evidence. Id. These policy rationales, often
referred to as the twin rationales of Chimel, have led to reams of scholarly
debate, particularly concerning the search-incident-to-arrest doctrine’s
applicability to automobile “occupants” and “recent occupants.” See, e.g., infra
notes 44 and 65.
9. See, e.g., United States v. Osife, 398 F.3d 1143 (9th Cir. 2005); United
States v. Bush, 404 F.3d 263 (4th Cir. 2005); United States v. Sumrall, 115 F.
App’x 22 (10th Cir. 2004); United States v. Barnes, 374 F.3d 601 (8th Cir.
2004); United States v. Dickey-Bey, 393 F.3d 449 (4th Cir. 2004); Mack v. City
of Abilene, No. Civ.A. 104CV050C, 2005 WL 1149807 (N.D. Tex. May 12,
2005); United States v. Mighty, No. Crim.A. 04-54 GMS, 2005 WL 950627 (D.
Del. Apr. 26, 2005); United States v. Walston, No. CR. 04-78-B-W, 2005 WL
757592 (D. Me. Mar. 14, 2005); United States v. Robinson, No. 04-40107010RDR, 2005 WL 946524 (D. Kan. Feb. 3, 2005); Maiale v. Youse, No.
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examples, in Mack v. City of Abilene,10 the United States District
Court for the Northern District of Texas upheld a search
incident to arrest in a “recent occupant” situation where the
arrestee had not occupied the vehicle for more than three hours
prior to search.11 Conversely, in State v. Eckel,12 a New Jersey
appellate court struck down a search incident to arrest in a
“recent occupant” situation where the arrestee occupied the
vehicle just minutes before the search.13
Many legal scholars have used the ambiguity of Thornton to
justify their call for a literal interpretation of the area of
“immediate control,” attempting to halt expansion of the searchincident-to-arrest doctrine to automobiles in all but a few rare
Yet Thornton’s general inclusion of “recent
instances.14
occupants” is not the most unnerving aspect of the decision.
Rather, it is the feared swelling of the search-incident-to-arrest
doctrine to factual scenarios outside of and beyond Thornton15
that will lead to the most severe weakening of the
constitutionally afforded right to be free from “unreasonable
searches and seizures.”16 Although the imprecision of the
CIV.A. 03-5450, 2004 WL 1925004 (E.D. Pa. Aug. 27, 2004); United States v.
Edwards, No. CR.A. 042000201KHV, 2004 WL 1534173 (D. Kan. Jun. 21,
2004); State v. Eckel, 863 A.2d 1044 (N.J. Super. 2004); Washington v.
Rathbun, 101 P.3d 119 (Wash. App. 2004).
10. No. CIV.A. 104CV050C, 2005 WL 1149807 (N.D. Tex. May 12, 2005).
11. Id.
12. 863 A.2d 1044 (N.J. Super. 2004).
13. Id. at 1046.
14. See David S. Rudstein, Belton Redux: Reevaluating Belton’s Per Se Rule
Governing the Search of an Automobile Incident to Arrest, 40 WAKE FOREST L.
REV. 1287, 1350-59 (2005) (arguing Chimel’s area of “immediate control”
should be literally interpreted so that a search of an automobile incident to
arrest would be a very rare occurrence). See also, Lewis, supra note 5, at 1481
(“[O]nce the suspect is arrested and moved away from the vehicle, the true
threat of danger from that suspect, at least for [the] Belton purposes [of
ensuring officer safety and preventing the destruction of evidence], is over.”).
15. Most arrestees have previously occupied an automobile at some point in
their life; whether such occupation is “recent” is the pivotal question. Absent
limitation, one could imagine a scenario where an automobile occupied a week
prior to arrest is deemed sufficiently “recent.” This type of factual scenario,
and many similarly conceivable situations which are outside of and beyond the
facts of Thornton, appear particularly problematic under the current
ambiguous standard.
16. U.S. CONST. amend. IV. See Thornton v. United States, 541 U.S. 615,
633-36 (2004) (Stevens, J., dissenting). Justice Stevens opines that the Court
has “extended Belton’s reach without supplying any guidance for the future
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current “recent occupant” standard appears likely to lead to
another Supreme Court decision on the topic, it is unlikely
Thornton will be fully repudiated, making a strict application of
the area of “immediate control” an impractical request.17
Acknowledging the improbability of Thornton’s full reversal, the
most desirable remaining solution is to clarify the scope of
Thornton’s practical application. Such an approach would
formulate a “bright-line” test—the overarching justification for
Belton’s rule—for exactly who may be classified as a “recent
occupant.”
Although the goal of providing police officers with brightline rules of criminal procedure was subverted by Thornton’s
ambiguity, a bright-line rule that can be employed in the “recent
occupant” context is not out of reach. In short, Thornton’s scope
should be limited to situations where (1) a police officer
observes a suspect occupying an automobile; (2) the officer
contacts the suspect after he has occupied that automobile; and
(3) there is an uninterrupted nexus between observation and
contact.18 If these three elements are not satisfied, a suspect is
not a “recent occupant” and Thornton does not apply; as such,
any search must be justified either by Chimel or another Fourth
Amendment exception.19 Although this proposed test will not
satisfy all of Thornton’s critics, it is a step in the right direction.
The test sets forth a bright-line clarification and an honest
reflection of the true policy concerns presented by a “recent
occupant” situation.
application of its swollen rule.” Id. at 636. Although Justice Stevens firmly
disagrees with any expansion of Belton to include “recent occupants,” it is the
lack of limitation that he appears most concerned with, stating that “[w]ithout
some limiting principle, I fear that today’s decision will contribute to a massive
broadening of the automobile exception . . . when officers have probable cause
to arrest an individual but not search his car.” Id.
17. Given the current shifting composition of the Supreme Court, the
pendulum of criminal procedure seems to be swinging toward governmental
powers and away from personal liberties, at least for the time being. Thornton
was a 7-2 ruling, and although Justices Rehnquist and O’Connor, both of whom
were in favor of the outcome, have been replaced, their successors, Justices
Roberts and Alito respectively, are believed to be of a conservative progovernment tendency. Albeit speculation, it appears unlikely the current
Supreme Court would be willing to veer from stare decisis to reverse Thornton.
18. This is a general statement of the proposed three-part “recent
occupant” test, which is discussed in detail in Part III infra.
19. See cases cited infra note 164.
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Part I of this note highlights the roots of the search-incidentto-arrest doctrine in American jurisprudence, tracing the
doctrine’s evolution to encompass “recent occupants” of an
automobile. Part II outlines how Thornton’s “recent occupant”
standard decimates much of Belton’s bright-line rule, Thornton’s
illogical reliance upon Chimel’s twin policy rationales, and the
resulting inconsistency in the lower courts. Part III proposes a
solution that recreates the bright line provided by Belton, while
introducing a limiting principle that will avoid the feared
expansion of the search-incident-to-arrest doctrine.
I. EVOLUTION OF THE SEARCH-INCIDENT-TOARREST DOCTRINE
A. Chimel v. California and the Twin Policy Rationales
The ability to search the “person of the accused when
legally arrested” was first acknowledged by the United States
Supreme Court in a string of early-twentieth-century cases.20
Although this initial recognition came by way of unexplained
dictum, it provided a foundation for formal recognition of the
search-incident-to-arrest doctrine. In the years that followed, a
number of judicial rulings adopted drastically different
variations and interpretations of these early cases into their
majority opinions.21
One such case, United States v.
Rabinowitz,22 held that a warrantless search incident to arrest
may permissibly extend to the entire area in the possession or
20. See, e.g., Weeks v. United States, 232 U.S. 383, 392 (1914) (“It is not an
assertion of the right on the part of the government always recognized under
English and American law, to search the person of the accused when legally
arrested, to discover and seize the fruits or evidences of crime.”); Carroll v.
United States, 267 U.S. 132, 158 (1925) (“When a man is legally arrested for an
offense, whatever is found upon his person or in his control which it is unlawful
for him to have and which may be used to prove the offense may be seized and
held as evidence in the prosecution.”); Agnello v. United States, 269 U.S. 20, 30
(1925) (“The right without a search warrant contemporaneously to search
persons lawfully arrested while committing crime and to search the place where
the arrest is made in order to find and seize things connected with the crime . . .
as well as weapons . . . is not to be doubted.”).
21. See, e.g., Trupiano v. United States, 334 U.S. 699, 702-08 (1948); Harris
v. United States, 331 U.S. 145, 151 (1947); United States v. Lefkowitz, 285 U.S.
452, 465 (1932); Go-Bart Importing Co. v. United States, 282 U.S. 344, 358
(1931); Marron v. United States, 275 U.S. 192, 199 (1927).
22. 339 U.S. 56 (1950).
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under the control of the arrestee.23
Justice Frankfurter
dissented, explaining that to determine what amounts to a
reasonable search under the Fourth Amendment, it is necessary
to look to the history that gave rise to the Amendment—a
history of “abuses so deeply felt by the Colonies as to be one of
the potent causes of the Revolution.”24 Justice Black dissented
as well, noting that “in recent years, the scope of the [searchincident-to-arrest] rule has been the subject of almost constant
judicial controversy both in trial and appellate courts. In no
other field has the law’s uncertainty been more clearly
manifested.”25
Chimel v. California26 was the Court’s attempt to lay this
uncertainty to rest. Following Chimel’s lawful arrest, officers
proceeded to conduct a warrantless search of his entire threebedroom house.27 In holding this search to be unconstitutional,
the Court overturned the previously expansive rulings of cases
such as Rabinowitz in favor of a more refined and narrowly
applied rule.28 Writing for the majority, Justice Stewart stated
that the permissible scope of a search incident to arrest includes
only the arrestee’s person and the area “within his immediate
control—construing that phrase to mean the area from within
which he [the arrestee] might gain possession of a weapon or
destructible evidence.”29 Stewart reasoned that once an arrest is
made, it is entirely reasonable to conduct a warrantless search
for weapons the arrestee might use against officers, “[o]therwise
the officer’s safety might well be endangered, and the arrest
itself frustrated.”30 Additionally, the Court declared that an
officer may reasonably conduct a warrantless search in an effort
to seize any evidence the arrestee may attempt to conceal or
23. Id.
24. Id. at 69 (Frankfurter, J., dissenting).
25. Id. at 67 (Black, J., dissenting).
26. 395 U.S. 752 (1969).
27. Id. at 753-54.
28. Id. at 768 (“Rabinowitz and Harris have been the subject of critical
commentary for many years, and have been relied upon less and less in our
own decisions. It is time, for the reasons we have stated, to hold that on their
own facts, and insofar as the principles they stand for are inconsistent with
those that we have endorsed today, they are no longer to be followed.”).
29. Id. at 763.
30. Id.
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destroy.31
The policy justifications of ensuring officer safety and
preventing the destruction of evidence are commonly referred to
as the twin rationales of Chimel. Many problems arising under
Chimel’s application involve the question of what exactly
constitutes “immediate control”—or in other words, at what
point in time the area of “immediate control” can be
constitutionally ascertained.32 At its core, the debate over
“immediate control” concerns the twin policy rationales of
Chimel,33 and more pointedly, whether searches incident to
arrest are only permissible in situations where officer safety or
the possible destruction of evidence are directly at issue.34 In
this respect, the limitation sought by Chimel was not entirely
achieved. This has been especially noticeable in the searchincident-to-arrest doctrine’s applicability to automobiles.35
31. Id.
32. Courts have differed in whether the area of “immediate control” should
be ascertained at the moment of arrest, when the arrestee is generally still
within the area to be searched, or at the moment of search, when the arrestee
has many times been removed. Compare People v. Summers, 86 Cal. Rptr. 2d
388 (1999) (ascertaining the area of immediate control at the moment of
search) with People v. Rege, 30 Cal. Rptr. 3d 922 (2005) (ascertaining the area
of immediate control at the moment of arrest).
33. See Leslie A. Lunney, The (Inevitably Arbitrary) Placement of Bright
Lines: Belton and its Progeny, 79 TUL. L. REV. 365, 376-78 (2004) (discussing
the implications of the twin policy rationales of Chimel as related to the
question of “immediate control”).
34. See United States v. Robinson, 414 U.S. 218 (1973) (rejecting the notion
that officers must believe there is a probability in an arrest situation that
weapons or destructible evidence will be found in order to justify a search
conducted incident to arrest). The Court stated it is the lawful arrest itself that
renders the search reasonable under the Fourth Amendment and no additional
justification based on the twin policy rationales of Chimel is required. Id. at
235.
35. Compare United States v. Benson, 631 F.2d 1336 (8th Cir. 1980)
(holding the search of a tote bag, located in the back seat of an automobile
Benson had been seated in when arrested, unreasonable as not a proper search
incident to Benson’s arrest), with United States v. Frick, 490 F.2d 666 (5th Cir.
1973) (holding a similar search of a briefcase, located in the back seat of an
automobile Frick had been seated in when arrested, reasonable because the
briefcase was within Frick’s “immediate control”).
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B. New York v. Belton and the Supreme Court’s Call for a
Bright-Line Rule
In New York v. Belton, 36 the Court held that once a lawful
custodial arrest has been made of the occupant of an
automobile, police officers may, “as a contemporaneous incident
of that arrest, search the passenger compartment of the
automobile.”37 The Court created a per se rule for Chimel’s
application to automobiles,38 reasoning “that the police may also
examine the contents of any containers found within the
passenger compartment, for if the passenger compartment is
within reach of the arrestee, it follows that containers in the
compartment will also be within his reach.”39
Of primary concern for the Belton Court in formulating this
standard was providing a clear, bright-line rule governing
automobile searches incident to arrest—“a straightforward rule,
easily applied, and predictably enforced.”40 Noting a “single
36. 453 U.S. 454 (1981). Belton was the Court’s effort to clarify the
competing lines of authority set forth in cases such as Benson and Frick. For
additional pre-Belton cases concerning the search-incident-to-arrest doctrine’s
application to automobiles, many of which reach conflicting results, see, for
example, United States v. Sanders, 631 F.2d 1309 (8th Cir. 1980); United States
v. Rigales, 630 F.2d 364 (5th Cir. 1980); United States v. Dixon, 558 F.2d 919
(9th Cir. 1977); Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980); Ulesky v.
State, 379 So. 2d 121 (Fla. Dist. Ct. App. 1979).
37. Belton, 453 U.S. at 460. In Belton, a New York policeman stopped a
vehicle for traveling at an excessive rate of speed. Upon approaching the
vehicle, the officer detected the smell of burnt marijuana and observed an
envelope on the interior floor of the vehicle that he associated with marijuana.
The four men occupying the vehicle, including Belton, were removed from the
vehicle, arrested for unlawful possession of marijuana, and separated from one
another. Subsequently, the officer proceeded to search the interior of the
vehicle, located a jacket in the backseat, unzipped one of the pockets, and
discovered a quantity of cocaine.
38. See generally Rudstein, supra note 14. Rudstein criticizes Belton’s per
se rule on a number of different fronts, arguing the rule subjects itself to
manipulation and abuse by police officers.
39. Belton, 453 U.S. at 460.
40. Id. at 459-60. The majority in Belton talks at length about the need for a
bright-line rule, explaining that police officers “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 (quoting Dunaway v.
New York, 442 U.S. 200 (1979)).
[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
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familiar standard is essential to guide police officers,”41 the
Court was willing to generalize its interpretation of Chimel’s
area of “immediate control”42 in exchange for the clear standard
this type of situation required.43
Although the rule articulated in Belton appeared to be
about as bright-lined as possible, many questions worthy of
debate were left unanswered.44 One such question was whether
interest of law enforcement. . . . Fourth Amendment doctrine . . . is
primarily intended to regulate the police in their day-to-day activities
and thus ought to be expressed in terms that are readily applicable by
the police in the context of the law enforcement activities in which
they are necessarily engaged. A highly sophisticated set of rules,
qualified by all sorts of ifs, ands, and buts and requiring the drawing of
subtle nuances and hairline distinctions, may be the sort of heady stuff
upon which the facile minds of lawyers and judges eagerly feed, but
they may be literally impossible of application by the officer in the
field.
Id. (internal quotes omitted). “When 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.
41. Id. at 458.
42. See State v. Eckel, 863 A.2d 1044, 1049 (N.J. Super. 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.”). See also Rudstein, supra note 14, at 1330-34 (arguing Belton’s
per se rule is based upon an overgeneralization, allowing officers to conduct
warrantless searches that are not reasonably supported by the twin rationales
of Chimel).
43. Belton, 453 U.S. at 460.
44. Belton has led to a good deal of criticism and disagreement from legal
scholars. See, e.g., Albert W. Alschuler, Bright Line Fever and the Fourth
Amendment, 45 U. PITT. L. REV. 227 (1984); Emmons, supra note 5; Lunney,
supra note 33; Myron Moskovitz, A Rule in Search of a Reason: An Empirical
Reexamination of Chimel and Belton, 2002 WIS. L. REV. 657 (2002); Rudstein,
supra note 14; David M. Silk, Comment, When Bright Lines Break Down:
Limiting New York v. Belton, 136 U. PA. L. REV. 281 (1987). Belton has also
led to inconsistent application in the lower courts. See, e.g., United States v.
Milton, 52 F.3d 78 (4th Cir. 1995); United States v. Willis, 37 F.3d 313 (7th Cir.
1994); United States v. White, 871 F.2d 41 (6th Cir. 1989); United States v.
Vasey, 834 F.2d 782 (9th Cir. 1987); United States v. McCrady, 774 F.2d 868
(8th Cir. 1985); United States v. Cotton, 751 F.2d 1146 (10th Cir. 1985) (all of
which discuss whether Belton justified search of an automobile after the
arrestee was removed from the automobile and immobilized by officers). But
see United States v. Strahan, 984 F.2d 155 (6th Cir. 1993); United States v.
Fafowora, 865 F.2d 360 (D.C. Cir. 1989); Commonwealth v. Santiago, 575
N.E.2d 350 (Mass. 1991) (all of which discuss whether Belton justified search of
an automobile when police officers did not actually remove the arrestee from
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the per se rule applied beyond automobile occupants to recent
occupants as well. For example, in United States v. Strahan,45 the
United States Court of Appeals for the Sixth Circuit refused to
apply Belton because the arrestee was not an automobile
occupant, but a recent occupant.46 Contrarily, in United States v.
Mans,47 the very same court came to a different conclusion,
upholding a search incident to arrest on the basis of Belton
where the arrestee was a recent occupant.48 The Supreme Court
recognized the need for resolution and granted certiorari to hear
Thornton v. United States.49
C. Thornton v. United States and the Inclusion of “Recent
Occupants”
In Thornton, a Norfolk, Virginia police officer noticed a
Lincoln Town Car driving down the street with license plate tags
belonging to a 1982 Chevy.50 The officer began to follow the
vehicle, but before he was able to pull the vehicle over, it
entered a parking lot and Thornton was observed exiting.51
After confronting Thornton in the parking lot, the officer asked
Thornton, who was acting in a nervous and suspicious manner,
whether he had any narcotics or weapons on his person or in the
the vehicle).
45. 984 F.2d 155 (6th Cir. 1993).
46. Id. at 159 (“Belton . . . applies only where the police initiate contact
while the defendant is within his automobile, but subsequently remove the
arrestee. Indeed, Belton clearly limits its applications to only those settings
where an officer makes a custodial arrest of the occupant of an automobile.”).
47. 999 F.2d 966 (6th Cir. 1993).
48. Id. at 968-69 (“[Belton applies] even if the arrestee has been separated
from his car prior to the search.”).
49. For additional pre-Thornton “recent occupant” analysis in a number of
differing contexts, all of which discuss the constitutional scope of Belton’s
application under Chimel, see generally, United States v. Sholola, 124 F.3d 803
(7th Cir. 1997); United States v. Hudgins, 52 F.3d 115 (6th Cir. 1995); United
States v. Arango, 879 F.2d 1501 (7th Cir. 1989); United States v. Bautista, 731
F.2d 97 (1st Cir. 1984); State v. Dean, 76 P.3d 429 (Ariz. 2003); State v. Gant,
43 P.3d 188 (Ariz. 2002); People v. Savedra, 907 P.2d 596 (Colo. 1995); Thomas
v. State, 761 So. 2d 1010 (Fla. 1999); State v. McLendon, 490 So. 2d 1308 (Fla.
Dist. Ct. App. 1986); State v. Gonzalez, 487 N.W.2d 567 (Neb. Ct. App. 1992);
State v. Guzman, 959 S.W.2d 631 (Tex. Crim. App. 1998); Heitman v. State,
815 S.W.2d 681 (Tex. Crim. App. 1991); Gauldin v. State, 683 S.W.2d 411 (Tex.
Crim. App. 1984); Glasco v. Commonwealth, 513 S.E.2d 137 (Va. 1999).
50. Thornton v. United States, 541 U.S. 615, 617-18 (2004).
51. Id. at 618.
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vehicle.52 Thornton consented to a pat down of his person,
whereby the officer discovered marijuana and crack cocaine in
his pocket.53 The officer handcuffed Thornton, informed him he
was under arrest, placed him in the back seat of the police car,
and proceeded to search the interior of the Town Car.54 This
search uncovered a handgun underneath the driver’s seat.55
Thornton moved to suppress the handgun at trial.56 The
United States District Court denied the motion to suppress and
Thornton was convicted of all three counts brought against him.
After the Fourth Circuit affirmed, the Supreme Court upheld
the search as constitutionally reasonable under the Fourth
Amendment and a permissible extension of Belton.57 The Court
held: “So long as an arrestee is the sort of ‘recent occupant’ of a
vehicle such as petitioner was here, officers may search that
vehicle incident to the arrest.”58
Explaining the “recent occupant” designation, the Court
stated that “while an arrestee’s status as a ‘recent occupant’ may
turn on his temporal or spatial relationship to the car at the time
of the arrest and search, it certainly does not turn on whether he
was inside or outside the car at the moment that the officer first
initiated contact with him.”59 The Court acknowledged that
weapons or contraband in the passenger compartment of an
automobile are not likely to be readily accessible to a “recent
occupant,” but was willing to follow Belton’s generalization in an
effort to provide 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.”60
Although Thornton was a 7-2 decision, the Court was
distinctly divided. Only four justices joined the majority opinion
in full,61 three justices joined in two pointed concurring
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
Id.
Id.
Id.
Id.
Id.
Id. at 624.
Id. at 623.
Id. at 622.
Id. at 622-23.
Id. at 616. Chief Justice Rehnquist delivered the majority opinion of the
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opinions,62 and two justices dissented.63 In the short time that
has followed, the varying application and interpretation of
Thornton has made clear the lack of a bright-line rule to be
applied in the “recent occupant” context.64
II. THE AMBIGUITY CREATED BY THORNTON
If Thornton is an extension of Belton, why did the Court fail
to advance Belton’s bright-line policy to its “recent occupant”
standard?
Belton’s concern with providing a clear,
straightforward, easily understood rule does not appear to be
any less prevalent in a “recent occupant” situation than it does in
an “occupant” situation. Nevertheless Thornton set forth a
vague and ambiguous standard that has given rise to many
unanswered questions At what point do a recent occupant’s
“temporal and spatial” ties become too attenuated to support a
search incident to arrest? How are Chimel’s twin policy
rationales logically implicated when an arrestee does not have
the opportunity to reach a weapon or evidentiary item from
within a vehicle? These questions, among others, have led to
reams of scholarly commentary critical of Thornton,65 and a
striking discord in Thornton’s application by the lower courts.66
A. Problems with the “Temporal and Spatial” Standard
The uncertainty created by Thornton is largely due to the
court with Justices Kennedy, Thomas, and Breyer joining that opinion in full.
Just O’Conner joined the majority in all but a footnote.
62. Id. Justice O’Conner concurred in part, while Justice Scalia, joined by
Justice Ginsburg, delivered a very direct concurring opinion expressing
dissatisfaction with the court’s reliance on Chimel.
63. Id. Justice Souter joined Justice Stevens in the dissenting opinion.
64. See Hellerstein, supra note 7, at 846 (“The Court’s belief that it had
again furnished the police with a bright line rule may be more evanescent than
the Court thinks.”).
65. For legal commentaries critical of Thornton, see generally, Dane C.
Ball, Thornton v. United States: Blurring Belton’s Bright Line Rule Spells
Disaster for Lower Courts and the Fourth Amendment, 35 SW. U. L. REV. 1
(2005); Emmons, supra note 5; Hellerstein, supra note 7; Milton Hirsch &
David O. Markus, Fourth Amendment Forum: Amendment Non Grata, 28
CHAMPION 34 (2004); Lewis, supra note 5; Lunney, supra note 33; Rudstein,
supra note 14; Peter B. Rutledge & Nicole L. Angarella, An End of Term
Exam: October Term 2003 at the Supreme Court of the United States, 54 CATH.
U. L. REV. 151 (2004); Note, Leading Case: B. Criminal Law and Procedure,
118 HARV. L. REV. 268 (2004).
66. See cases cited, supra note 9.
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ambiguity of the “temporal and spatial” standard, which grew
out of the Court’s statement that “an arrestee’s status as a
‘recent occupant’ may turn on his temporal or spatial
relationship to the car at the time of the arrest and search.”67
The parameters of this standard are not clearly defined—“we
are not told how recent is recent, or how close is close.”68 Such
reasoning veers away from the bright-line rule provided by
Belton and towards an “inherently subjective and highly fact
specific”69 inquiry. Such an inquiry diminishes an individual’s
ability to know the scope of his constitutional protection, and a
police officer’s ability to know the scope of his authority.
Belton gave great importance to formulating bright-line
rules of criminal procedure.70 In Thornton, the Court cited this
line of reasoning in refusing to adopt the “contact initiation”
rule.71 The Court admonished that such an approach would
obfuscate the constitutional limits of a Belton search by
requiring “precisely the sort of ad hoc determinations on the
part of the officers in the field and reviewing courts that Belton
sought to avoid.”72 Although the Court’s criticism of the
“contact initiation” rule is well founded, the “temporal and
spatial” standard set forth in its place is equally problematic.
This standard requires police officers to make an ad hoc
determination of whether an arrestee’s temporal and spatial ties
with an automobile are sufficient to justify a search.73 Plainly
67. Thornton, 541 U.S. at 622.
68. Id. at 636 (Stevens, J., dissenting).
69. Id. at 623.
70. See New York v. Belton, 453 U.S. 454, 458-61 (1981); see also discussion
supra note 40.
71. Under the “contact initiation” rule, urged by petitioner in Thornton, a
warrantless search of an automobile conducted incident to arrest may only be
upheld where the officer initiates contact with the arrestee, either by way of
face-to-face contact or by signaling the driver to stop, while they are occupying
the automobile. In rejecting this approach, the court concluded it would be far
too difficult to determine whether the driver of a vehicle was subjectively
aware that they had been signaled to stop the vehicle. See Thornton, 541 U.S.
at 623. See also Brief for Petitioner at 29-36, Thornton v. United States, 541
U.S. 615, No. 03-5165 (2004).
72. Thornton, 541 U.S. at 623.
73. See generally Ann Redd, Case Note, State v. Dean: Redefining Arizona
Law for Police-Initiated Contact and Automobile Searches Incident to Arrest, 46
ARIZ. L. REV. 857, 864-65 (2004) (discussing the lack of a bright-line rule “for
assessing which temporal and spatial parameters trigger” a Belton search in the
“recent occupant” context).
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stated, Thornton’s “temporal and spatial” standard has removed
the search-incident-to-arrest doctrine from Belton’s bright-line
underpinnings.
B. Inconsistency in the Lower Courts
Lower courts have greatly differed in their determinations
of which arrestees may be classified as “recent occupants.”74
Courts faced with such a determination have naturally looked to
the twin policy rationales of Chimel as a guide. Yet Thornton
has proved difficult to justify with those rationales, resulting in
rulings across the spectrum. Although Belton’s connection to
Chimel appears weak if the search is conducted after the arrestee
is immobilized in the back seat of a patrol car, this weakness has
been largely avoided by ascertaining the area of “immediate
control” at the moment of arrest as opposed to at the moment of
search.75 The Thornton majority presented an even more
attenuated extension of the doctrine in that Chimel’s twin policy
concerns did not appear to be implicated at the moment of
Thornton’s arrest or at the moment of search, while Thornton
was immobilized in the back seat of the patrol car.76 In other
words, Belton’s generalization of the area of “immediate
control” is simply not as plausible in the “recent occupant”
context as it is in the “occupant” context.77
Thornton’s illogical reliance upon Chimel did not go
unacknowledged by the Court. In her concurrence, Justice
74. See cases cited, supra note 9.
75. For discussion of the current uncertainty in whether to ascertain the
area of “immediate control” at the moment of search or at the moment of
arrest, see explanation, supra note 32.
76. Thornton, 541 U.S. at 618.
77. Recall Belton’s generalization of the area of “immediate control,” as
discussed, supra Part I.B. In Belton, the Court permitted a search incident to
arrest even though, at the time of the search, the arrestee was immobilized in a
patrol car, and was therefore unable to obtain a weapon or evidentiary item
from within the vehicle’s interior. The court generalized the area of
“immediate control,” and inferred that so long as the vehicle’s interior was
within the arrestee’s reach at the moment of contact, Chimel’s twin rationales
may still be used as justification. However, in a “recent occupant” situation,
such as in Thornton, the arrestee is not able to reach the interior of the vehicle
at the moment of contact. It is for this reason Belton’s generalization of the
area of “immediate control” is not as plausible in the “recent occupant”
context as it is in the “occupant” context. For further discussion of Belton’s
generalization of the area of “immediate control,” see generally Rudstein,
supra note 14.
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O’Connor opined that the underlying foundation of the state of
the law in this area was eroded by the majority, and courts now
treat a warrantless search conducted incident to arrest of a
recently occupied vehicle as a “police entitlement rather than as
an exception justified by the twin rationales of Chimel.”78 Justice
Scalia stated in his concurring opinion that any ability of
Thornton to grab a weapon or destroy an evidentiary item was
“remote in the extreme,”79 and the majority’s reliance upon
Chimel’s twin rationales for justification stretches the current
state of the law “beyond its breaking point.”80
A fair and honest assessment reveals that Thornton’s
reliance upon the twin rationales of Chimel amounts to an
analytical fiction, providing unrealistic support for the core
policy concerns the Court purports to further.81 To avoid the
negative results such attenuation may impose, it is necessary to
revitalize the search-incident-to-arrest doctrine by bringing any
embedded policy concerns forth, and in doing so, clarifying the
doctrine’s applicability to “recent occupants.”
III. ADVANCING BELTON’S BRIGHT-LINE TO
“RECENT OCCUPANTS”
A practical, bright-line rule applicable to “recent
occupants” is needed—a rule circumscribing Thornton’s outer
parameters while providing clear guidelines for police officers.82
78. Thornton, 541 U.S. at 624 (O’Connor, J., concurring).
79. Id. at 625 (Scalia, J., concurring).
80. Id.
81. See Lunney, supra note 33, at 390-94. Lunney argues that Belton was an
overgeneralization of Chimel ignored by the Thornton Court, creating an
additional risk by not paying honest reference to the underlying purposes of
the search-incident-to-arrest doctrine. Hence, Thornton is a result of the
judiciary’s willingness to apply Belton expansively rather than a meaningful
connection to Chimel’s rationales. See also Rudstein, supra note 14, at 1330-34
(arguing Belton’s overgeneralization has resulted in years of police officers
conducting automobile searches when such searches cannot be justified by
either of Chimel’s twin rationales, and as such, reliance upon Chimel is simply
not in accord with reality).
82. Cf. Ball, supra note 65, at 33. Ball argues that Thornton’s flaws will be
remedied if the test set forth by an unpublished district court case is adopted.
This test states that a search incident to arrest may be upheld when the
following questions are answered in the affirmative:
(1) Was the arrestee in a vehicle at some point prior to arrest?; (2) Did
the officers see the arrestee inside the vehicle?; (3) Did the arrest take
place in the vicinity of the vehicle?; and (4) In the time period
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The first step necessary in achieving such clarification is to
acknowledge that Thornton cannot reasonably be premised
upon the twin policy rationales of Chimel. Only then can the
true underlying concerns inherent in a “recent occupant”
situation surface,83 concerns which are necessary to provide a
fundamental backbone for any proffered solution.84
The
following test is designed with three principal policy
considerations in mind: (1) providing a bright-line rule
applicable to “recent occupants,” (2) promoting officer
discretion,85 and (3) deterring conduct that jeopardizes public
between when the officers saw the arrestee inside, and the arrest itself,
were the officers both with the arrestee and conducting investigatory
functions for the entire period of time?
Id. (citing United States v. Edwards, No. CR.A. 042000201KHV, 2004 WL
1534173, at *5 (D. Kan. June 21, 2004)). However, this test is just as vague and
ambiguous as the “temporal and spatial” standard. What exactly does it mean
to be within the “vicinity” of an automobile? Will an arrestee be within the
“vicinity” of an automobile when they are forty feet away? Twenty feet? Ten
feet? Ball attempts to circumvent this ambiguity by claiming the other prongs
will many times not be satisfied, thus rendering it “unnecessary to make the
tougher, more subjective determination of whether an arrestee is in the
‘vicinity’ of a vehicle.” Id. at 35. But when the other prongs do not invalidate
the test, we are left with the very type of standard Belton sought to avoid.
What is needed is a clear, bright-line rule applicable to “recent occupants.”
The test proposed by Ball simply rewords Thornton’s ambiguity.
83. See Thornton, 541 U.S. at 625-32 (Scalia, J., concurring). Justice Scalia’s
concurrence is primarily based upon disagreement with premising Belton, and
therefore Thornton’s extension of Belton, upon Chimel’s twin policy rationales.
Justice Scalia states that if the court is “going to continue to allow Belton
searches on stare decisis grounds, we should at least be honest about why we
are doing so.”
84. Consider that when determining whether a search is reasonable under
the Fourth Amendment, a court will weigh the intrusion on the individual’s
privacy interest with that which is needed to promote legitimate governmental
interests. See e.g., Wyoming v. Houghton, 526 U.S. 295 (1999); Veronia Sch.
Dist. 47 v. Acton, 515 U.S. 646 (1995); Skinner v. Ry. Labor Executives Ass’n,
489 U.S. 602 (1989); United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
Absent viable policy concerns to serve as legitimate governmental interests,
any proposed limitation will be much more susceptible to challenge.
85. In some respects, Thornton was concerned with promoting officer
discretion, only not as a primary policy rationale. The Court states that “[i]n
some circumstances it may be safer and more effective for officers to conceal
their presence from a suspect until he has left his vehicle. Certainly that is a
judgment officers should be free to make.” Thornton, 541 U.S. at 621. It is a
similar “officer discretion” argument this note uses as partial support for the
proposed test. However, in the current context, “officer discretion” is a
primary concern explicitly stated, rather than a secondary concern hiding in the
shadow of Chimel’s twin rationales.
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safety.86
A. Proposed Three-Part “Recent Occupant” Test
A concise three-part approach will filter out Thornton’s
negative aspects while advancing the three true policy goals
discussed above.87 In short, Thornton’s scope should be limited
to those situations where (1) a police officer observes a suspect
occupying an automobile; (2) the officer contacts the suspect
after he has occupied that automobile; and (3) there is an
uninterrupted nexus between observation and contact. If these
three elements are not satisfied, a suspect is not a “recent
occupant” and Thornton does not apply; as such, any search
must be justified either by Chimel or another Fourth
Amendment exception.
1. Observation Element: Bright-Line Limitation
As a clear, bright-line limitation, the observation element of
the proposed “recent occupant” test will not be satisfied unless a
police officer has first observed the arrestee occupying the
automobile in question. An arrestee will “occupy” a vehicle
when their full body is completely inside the automobile with all
doors closed.88 This will of course preclude a search incident to
86. Public safety, when used in this context, is not meant to be limited to the
“officer safety” aspect of the Chimel twins, but rather to deter arrestees from
fleeing their vehicles after being pulled over in order to avoid an automobile
search incident to arrest. Although a fleeing suspect still presents an issue
regarding officer safety, this has not previously been considered within
Chimel’s “officer safety” concern, which has historically been a determination
of the area of “immediate control,” and whether the arrestee would have been
able to obtain a weapon from within that area.
87. It should be noted that this note is only directed at clarifying the searchincident-to-arrest doctrine as it applies to “recent occupants” of an automobile.
Even where a warrantless search of an automobile is not proper incident to
arrest, there are a number of other exceptions to the warrant requirement,
particularly when dealing with an automobile, that may support such a search.
For cases setting forth some of these additional exceptions, see cases cited infra
note 164.
88. This very limited definition of “occupy” will exclude a search incident to
arrest under the proposed “recent occupant” test when an individual is fully
inside the automobile, but the back door may be open because a passenger is
exiting, or some similarly conceivable situation. Though this definition is
limited, it is also very clear, which ensures Belton’s bright-line policy is
advanced to the “recent occupant” standard. In other words, the strong policy
of providing a bright-line rule outweighs the limited nature of the definition of
“occupy.” However, in such a situation, a court’s reversion to Chimel’s area of
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arrest on the basis of Thornton in situations where the arrestee is
only observed by officers while in the process of entering the car
with the door open,89 leaning inside the car with the door open,90
standing very near the car with the door open,91 or any similarly
conceivable situation where the arrestee is not located inside of
the automobile with the doors closed.92 In each of these
situations, the observation element has not been satisfied, and a
court shall revert to a Chimel “immediate control” analysis to
determine if the arrestee was in a position to obtain a weapon or
evidentiary item from the interior of the vehicle.93
To further illustrate the observation element, consider the
following cases in which lower courts applied Thornton to
situations where officers did not observe the arrestee
“immediate control” in lieu of the proposed “recent occupant” test is still very
likely to uphold a search incident to arrest. For further discussion of Chimel’s
application in this context, see Part III.B.3 infra.
89. See United States v. Bush, 404 F.3d 263, 266 (4th Cir. 2005) (defendant
had opened the passenger door of the vehicle, placed her purse on the
passenger floor, and hiked up her skirt as if she was about to enter). It should
be noted that the stated facts from Bush are not presented as a complete
parenthetical description of the case, but rather to give an example of an
instance in which the arrestee was not “occupying” the vehicle within the
proffered definition of the term. In Bush, prior to the above stated facts,
officers actually did observe the arrestee “occupying” the vehicle, however the
proposed three-part test was invalidated because the nexus between
observation and contact had been interrupted, as will be discussed in Part
III.A.3 infra.
90. See United States v. Osifie, 398 F.3d 1143, 1144 (9th Cir. 2005) (arrestee
was leaning inside of the automobile with the door open when first observed by
officers).
91. See Washington v. Rathbun, 101 P.3d 119, 120 (Wash. App. 2004)
(arrestee was standing very near his truck with the doors open when first
observed by officers).
92. In isolation, the observation element leaves open a valid timing
argument. Will the observation element be satisfied if an officer observed the
arrestee “occupying” the automobile not on the date of the search, but one
year earlier? The answer is yes. However, in this situation, the nexus between
observation and contact will be interrupted, thus rendering a search invalid on
the basis of the proposed three-part “recent occupant” test. The nexus
between observation and contact is discussed further in Part III.A.3 infra.
93. In many of the above referenced situations where the arrestee is very
near the vehicle while the door is open, a court may certainly conclude that the
Chimel rationales support a search incident to arrest. This proposed test
should clarify situations where the arrestee is not close enough to the vehicle to
easily access its interior, but may still have seemingly close “temporal and
spatial” ties with that vehicle. Chimel’s impact under the proposed test is
discussed in greater detail in Part III.B.3 infra.
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“occupying” the automobile prior to search. In Washington v.
Rathbun,94 officers went to the residence of defendant Rathbun
to execute outstanding warrants for his arrest.95 Upon arrival,
Rathbun was observed by officers “standing in the swing of the
open driver’s side door of his truck.”96 At no time did the
officers observe Rathbun inside the automobile.97
Once
Rathbun noticed the officers, he began running and was not
apprehended until he had traveled approximately forty to sixty
feet away from the vehicle and jumped a fence.98 Immediately
following Rathbun’s arrest, officers proceeded to search the
automobile next to which he had been standing, during which
they seized methamphetamine and various drug paraphernalia.99
At trial, Rathbun moved to suppress this evidence, claiming
the warrantless search of his truck was not proper incident to
arrest; the trial court granted his motion, holding Rathbun “was
not in close proximity” to the vehicle.100 In applying Thornton’s
“temporal and spatial” standard, the appellate court affirmed
the trial court’s ruling, holding that at the time of Rathbun’s
arrest the truck was not within his area of “immediate control,”
but rather forty feet away on the other side of a fence.101
In applying the proposed three-part “recent occupant” test
to this factual situation, the outcome is likely to be the same, but
the path to achieving that outcome would be greatly clarified.
The appellate court gave considerable weight to Rathbun’s
physical proximity to the vehicle at the time of arrest, concluding
that with at least forty feet between the arrestee and the
automobile, Rathbun had no opportunity to destroy evidence or
obtain a weapon.102 This leaves open the question of what
94. 101 P.3d 119 (Wash. App. 2004).
95. Id. at 119-20.
96. Id. at 120.
97. Id. Initially, one officer traveled to Rathbun’s residence by himself, and
observed Rathbun outside of his truck. This officer left the scene, obtained the
assistance of an additional officer, and returned shortly with intentions of
executing the warrants for Rathbun’s arrest. It was at this later time Rathbun
was observed in the swing of the door. Nevertheless, officers did not observe
Rathbun occupying the automobile at any time.
98. Id.
99. Id.
100. Id. at 121.
101. Id.
102. Id. at 121-22.
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specific physical proximity would be required in order to deem
Rathbun a “recent occupant” under Thornton: If Rathbun was
only twenty feet from the vehicle would the result have been
different? Ten feet? Five? Further, there is no clear picture of
when Rathbun last “occupied” the automobile,103 creating
vulnerability in the temporal aspect of the current Thornton
standard.104
Applying the observation element of the three-part test
creates a clear result: Rathbun was never observed by officers
occupying the vehicle, therefore a search incident to arrest
cannot be upheld under the modified Thornton standard. Such
an approach would have put Rathbun’s arresting officers on
notice that a search incident to arrest was inappropriate under
Thornton, thereby avoiding suppression of valuable evidence,
which could have likely been recovered through a subsequent
lawful search. Although the court’s reversion to Chimel may
very well produce the same result, the clear inapplicability of
Thornton at the outset would allow this result to be reached in a
much more coherent manner.105
In United States v. Osife,106 officers responded to a call that
defendant Osife had allegedly urinated next to his truck in a
grocery store parking lot.107 Upon arriving at the scene, officers
103. Id. (“[T]here is no evidence in the record here that Rathbun was an
‘occupant,’ or even a ‘recent occupant,’ of the vehicle prior to his arrest.”).
104. Absent officer observation, there is no way to determine the last time
Rathbun actually did “occupy” his automobile. Had Rathbun’s spatial ties
been much closer to the vehicle, would the lack of a clear idea of his temporal
ties still have precluded his classification as a “recent occupant” under
Thornton? The Rathbun court seems to have considered close spatial and
temporal ties a requirement. See id. at 122 (“Thornton requires some quantum
of physical and temporal proximity between the suspect and the vehicle before
police may validly search it incident to arrest.”).
105. Under the proposed test, Thornton’s inapplicability would result in the
court applying a Chimel “immediate control” analysis, very similar to what the
court applied in Rathbun, which raises many of the same issues with the
arrestee’s proximity to the automobile. However, the arrestee’s temporal
relation is of no concern, eliminating that portion of the vulnerability and
ambiguity in the current Thornton standard. This note is concerned with
clarifying Thornton’s ambiguity, and makes no efforts to clarify any debate that
may still survive concerning Chimel. Thus, while the arrestee’s proximity to
the vehicle is still going to be of concern in a Chimel analysis, the proposed test
serves to eliminate it as a consideration from the Thornton analysis.
106. 398 F.3d 1143 (9th Cir. 2005).
107. Id. at 1144.
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observed Osife’s truck with a pool of fluid next to it, and waited
until Osife exited the store.108 When Osife approached his truck,
he opened the door and placed a bag inside, but was stopped by
officers before he entered the vehicle; at no time did officers
observe Osife inside the automobile.109 Once identified by the
reporting party, Osife was arrested for indecent exposure,
handcuffed, and placed in the back of a patrol car.110 Officers
proceeded to search Osife’s truck, during which they seized a
handgun later discovered to be stolen.111 Osife moved to
suppress the evidence obtained during the warrantless search of
his automobile, arguing this was not a proper search incident to
arrest.112 The trial court found the search permissible and denied
Osife’s motion.113
Basing their ruling on Thornton, the appellate court
affirmed the denial of Osife’s motion to suppress.114 However,
the court struggled with finding logic in premising Thornton on
the twin rationales of Chimel, seeming to prefer Justice Scalia’s
evidence preservation approach,115 but remained bound by
Thornton’s precedent.116 In applying the proposed three-part
test to this situation, the outcome is once again likely to be the
same, but much of the Osife court’s struggle could have been
108. Id.
109. Id.
110. Id.
111. Id. at 1144-45.
112. Id. at 1145.
113. Id.
114. Id. Osife’s only basis of appeal was Justice Scalia’s Thornton
concurrence, claiming the warrantless search of his vehicle was
unconstitutional because it was not reasonably aimed at discovering evidence
related to the crime for which he was arrested. Osife did not dispute that he
was a “recent occupant” of the vehicle, or that his arrest was lawful. Id. at
1146.
115. Id. (“[I]t seems to us that Justice Scalia’s [evidence preservation] view
is more analytically sound than the prevailing approach, which relies on the
legal fiction that a suspect handcuffed and locked in a patrol car might escape
and grab a weapon from the passenger compartment of his own car.”).
116. Id. at 1145-48. (“Were Justice Scalia’s view the law of the land, the
appeal would have a great deal of merit. Osife is surely right that there was no
reason for the police to think that evidence of his indecent public urination
would be found inside his pickup. . . . Nevertheless, a majority of the Court in
Thornton squarely rejected Justice Scalia’s approach. . . . The Supreme Court
declined to upset that rule in Thornton, and we are not at liberty to do so
now.”).
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avoided. Where, as here, officers did not observe the arrestee
“occupying” the vehicle in question, a search incident to arrest
may not be upheld on the basis of Thornton—this is outside the
proposed “recent occupant” designation. However, a court
reverting to a literal Chimel analysis in lieu of Thornton might
just as easily uphold the search in finding that Osife, standing
very near his vehicle with the door open at the time of arrest,117
could have accessed its interior to obtain a weapon or
evidentiary item.
Both Rathbun and Osife present examples of instances in
which the observation element of the proposed three-part
“recent occupant” test would serve to provide a bright-line
limitation on the Thornton ruling.118
2. Contact Element: Clarifying When a “Recent Occupant”
Analysis is Necessary
The requirement for officers to contact the arrestee after he
has “occupied” the vehicle refers to any situation where the
arrestee has already exited, or is in the process of exiting the
117. Id. at 1144.
118. For additional cases to be considered in light of the newly proposed
three-part “recent occupant” test, particularly the observation element, see, for
example, United States v. Sumrall, 115 F. App’x 22 (10th Cir. 2004) (arrestee
observed “occupying” the automobile and search was upheld); United States v.
Barnes, 374 F.3d 601 (8th Cir. 2004) (arrestee observed “occupying” the
automobile and search was upheld); United States v. Dickey-Bey, 393 F.3d 449
(4th Cir. 2004) (arrestee observed “occupying” the automobile, and although
search was upheld, it was because the court ruled that officers had probable
cause to search the vehicle and their actions were therefore justified under the
“automobile exception”); Mack v. City of Abilene, No. CIV.A. 104CV050C,
2005 WL 1149807 (N.D. Tex. May 12, 2005) (arrestee not observed
“occupying” the automobile and search was upheld); United States v. Mighty,
No. CRIM.A. 04-54 GMS, 2005 WL 950627 (D. Del. Apr. 26, 2005) (arrestee
observed “occupying” the automobile and search found to be
unconstitutional); United States v. Walston, No. CR. 04-78-B-W, 2005 WL
757592 (D. Me. Mar. 14, 2005) (arrestee not observed “occupying” the
automobile and search was upheld); United States v. Robinson, No. 04-40107010RDR, 2005 WL 946524 (D. Kan. Feb. 3, 2005) (arrestee observed
“occupying” the automobile and search was upheld); Maiale v. Youse, No.
CIV.A. 03-5450, 2004 WL 1925004 (E.D. Pa. Aug. 27, 2004) (arrestee not
observed “occupying” the automobile and search was upheld); United States v.
Edwards, No. CR.A. 042000201KHV, 2004 WL 1534173 (D. Kan. Jun. 21,
2004) (arrestee observed “occupying” the automobile and search was upheld);
State v. Eckel, 863 A.2d 1044 (N.J. Super. 2004) (arrestee observed while
“occupying” the automobile and search found to be unconstitutional).
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automobile when first contacted by officers.119 This is an effort
to clarify when Belton’s well-settled bright-line rule applies,120
and when it is necessary to go beyond Belton to the proposed
three-part “recent occupant” test. For example, when an
individual is first contacted by police officers while he is
“occupying” an automobile, subsequently arrested, and removed
to a police car prior to search, that individual is not a “recent
occupant” for the purposes of the proposed “recent occupant”
test.121 Although the automobile will be searched after the
arrestee has been removed from it, and in the technical sense the
arrestee is a recent occupant of that vehicle, Belton clearly
governs this situation and the courts have repeatedly upheld
such a warrantless search.122
In isolation, the observation and contact elements of the
proposed test may appear to grant an overly expansive
governmental right to conduct searches incident to arrest,
particularly when the moment of contact occurs long after the
moment of observation. However, the nexus requirement, as
discussed below, will ensure the moments of observation and
contact are relatively contemporaneous, thus obviating such
apprehension.
3. Nexus Between Observation and Contact
Whereas the observation element provides a bright-line
limitation on Thornton, the requirement of an uninterrupted
119. Consider the proffered definition of “occupy “ as having the entire
body completely inside the automobile with all doors closed, as described,
supra Part III.A.1. Under this definition, as soon as a vehicle’s occupant opens
any one of the vehicle’s doors, they are no longer occupying that vehicle. Any
contact between officers and the arrestee after a vehicle door has been opened
will be considered to have occurred after the arrestee occupied the vehicle.
120. The Belton rule states “that when a policeman has made a lawful
custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident to that arrest, search the passenger compartment of
that automobile.” Belton, 453 U.S. at 460. See discussion, supra Part I.B.
121. Recall that Thornton and other “recent occupant” cases have
concerned situations where the arrestee is first contacted by officers at some
point after “occupying” the vehicle. See Thornton, 541 U.S. 615. See also cases
cited supra note 9.
122. See, e.g., United States v. Milton, 52 F.3d 78 (4th Cir. 1995); United
States v. Willis, 37 F.3d 313 (7th Cir. 1994); United States v. White, 871 F.2d 41
(6th Cir. 1989); United States v. Vasey, 834 F.2d 782 (9th Cir. 1987); United
States v. McCrady, 774 F.2d 868 (8th Cir. 1985); United States v. Cotton, 751
F.2d 1146 (10th Cir. 1985).
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nexus between observation and contact is perhaps most
important in giving the limitation effect. In order for the
proposed three-part “recent occupant” test to be satisfied, the
moment of contact must continuously follow the moment of
observation without interruption.
Although such a
determination may appear to be just as vague and ambiguous as
the “temporal and spatial” standard, any uncertainty may be
avoided by explicitly specifying which occurrences will serve to
interrupt this connection. Concisely stated, the nexus between
observation and contact will be severed when one of two
occurrences takes place: (1) after the arrestee exits the vehicle,
officers do not undertake immediate efforts to make contact, or
(2) absent hot pursuit,123 the arrestee enters any enclosed
structure, including but not limited to a place of business or
private residence.
Consider a main objective of the proposed “recent
occupant” test—granting police officers discretion to determine
when it may be safest to allow an arrestee to exit his vehicle
prior to making contact. This test does not intend to grant
unbridled discretion in instances where officers do not yet have
the requisite reasonable suspicion to stop an arrestee after he
exits an automobile, or wish to prolong the period between
observation and contact to allow the arrestee to further
incriminate himself. Heeding Justice O’Connor’s concern that
the courts now treat a warrantless search conducted incident to
arrest of a recently occupied vehicle as a “police entitlement
rather than as an exception” to the warrant requirement,124 if we
are to grant officer discretion, there must be a point of
limitation.125 The following cases present situations where the
123. “Absent hot pursuit” was included to permit situations where officers
may attempt to make immediate contact with the arrestee but he flees into a
nearby building in an effort to escape. This is in the interest of public safety to
avoid the dangerous situation that may be brought about if an arrestee knows
all he has to do in order to avoid a warrantless search of his automobile is flee
into a building.
124. Thornton, 541 U.S. at 624 (O’Connor, J., concurring).
125. A potentially problematic situation under this proposed test is when an
officer loses sight of a vehicle and then encounters the vehicle again some time
later. If at the time the vehicle is reencountered the arrestee is still occupying
the vehicle, officers have two choices: (1) They may stop the vehicle, arrest the
individual, and search the vehicle under Belton’s well-settled bright-line rule,
or (2) use their discretion to wait for the arrestee to exit the vehicle, undertake
immediate efforts to make contact, and search the vehicle under the proposed
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observation and contact elements were satisfied, but interruption
in the nexus between observation and contact invalidated the
search under the proposed “recent occupant” test.
In United States v. Bush,126 police received a phone call from
a woman who believed someone was attempting to fraudulently
obtain a loan in her name from a nearby bank.127 Officers made
arrangements with the bank to have the suspected party “come
in as soon as possible to complete the application process,”128
after which police would place him under arrest.129 Later that
day, officers observed a man and a woman arrive in a Jeep
Grand Cherokee, exit the automobile, and enter the bank; no
efforts were made to contact the suspects at that time.130 After
the suspects exited the bank, they approached the recently
occupied Jeep Grand Cherokee.131 The woman opened the
passenger door, and was in the process of entering the vehicle
when police apprehended her.132 Officers placed the woman
under arrest and proceeded to search the vehicle incident to her
arrest, during which they uncovered a number of incriminating
three-part “recent occupant” test. However, if the arrestee is no longer
occupying the vehicle at the time it is reencountered, the proposed test will not
be satisfied. Although the observation and contact elements have been met,
the nexus between observation and contact has been interrupted—officers
were not present at the time the arrestee exited the vehicle, therefore they
were not able to undertake immediate efforts to make contact. At first blush,
this may appear to create a dangerous situation by encouraging suspects to flee
from police in an effort to exit their vehicle outside of police observation.
However, attempting to flee from police is a crime in itself. Using an
automobile to flee from police, independent of motive for such flight, renders
the vehicle an object used in the commission of a crime. As such, the
automobile may be impounded and subjected to a warrantless inventory search
pursuant to departmental guidelines. See Colorado v. Bertine, 479 U.S. 367
(1987). Recall this note only serves to clarify the search-incident-to-arrest
doctrine; there are a host of other exceptions to the warrant requirement,
particularly when dealing with an automobile, that may support a warrantless
search. See cases cited infra note 164.
126. 404 F.3d 263 (4th Cir. 2005).
127. Id. at 266.
128. Id.
129. Id.
130. Id. At the time officers observed the man and woman arrive at the
bank, they were not yet aware they were the suspected parties. It was only
after they entered the bank and fell victim to the ruse that officers were
notified of their involvement.
131. Id.
132. Id.
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documents associated with the fraudulent loan.133 Eventually,
charges were brought only against the man, Bush.134
Bush filed a motion to suppress the evidence seized from
the vehicle, claiming the warrantless search was not proper
incident to the woman’s arrest.135 The trial court denied his
motion and convicted Bush of forty-nine charges.136 Relying on
Thornton, the appellate court affirmed the denial of Bush’s
motion to suppress,137 finding that because officers had observed
the woman exit the automobile just before entering the bank,
and because she was in the process of reentering the automobile
at the time of her arrest, officers were permitted to search the
vehicle incident to her arrest.138
In applying the nexus element of the proposed three-part
test to this factual situation, Thornton would be inapplicable.
Although officers observed the arrestee “occupy” the
automobile, and contact was made after she exited the
automobile, the nexus between observation and contact had
been interrupted. Not only did the woman enter the bank, an
enclosed structure, but also, officers did not undertake
133. Id. Initially, just the woman was arrested, as she was the party who
was attempting to obtain the loan. At the time of her arrest, officers detained
the man based on a reasonable suspicion he was involved. The man was not
arrested until the search of the vehicle yielded incriminating documents.
134. Id. at 266-68. Bush was believed to have manipulated the woman into
obtaining the fraudulent loan and giving him the money. Based on the
evidence seized from the automobile, officers subsequently obtained a warrant
to search Bush’s residence, during which they uncovered more incriminating
evidence. The indictment charged Bush with fifty-six counts, including using a
false identity to defraud a bank in violation of 18 U.S.C. § 1342 and 18 U.S.C. §
1344.
135. Id. Bush’s motion to suppress was not limited to the items seized from
the automobile, but also included those items later seized from his residence.
As the affidavit used to obtain the search warrant for Bush’s house was based
in part on the evidence seized from the automobile, Bush claimed that all items
seized from his house were invalidated as fruits of the poisonous tree.
136. Id. at 269. Bush was convicted on counts 1-6 and counts 14-56 in the
indictment, after which he was sentenced to 105 months imprisonment.
137. Id. at 275-76. Bush raised several challenges on appeal: (1) The district
court erred in denying his motion for self-representation, (2) his rights under
the Speedy Trial Act were violated due to delay between the indictment and
trial, and (3) the district court erred in denying his motion to suppress the
evidence relating to the allegation of fraud against the bank. The appellate
court found all three contentions to be without merit, and the ruling below was
affirmed.
138. Id.
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immediate efforts to contact the woman after she exited the
vehicle.139 However, a court reverting to a literal analysis of
Chimel’s area of “immediate control” in lieu of Thornton may
very well come to the same result. As the arrestee was partially
inside the automobile at the time of arrest, a court may find, as
the appellate court in this case did, that the interior of the
vehicle was within the arrestee’s “immediate control” at the time
of arrest.140 Although the proposed test will likely produce
similar results in some cases, in many it will not; either way, the
path to these results will be much clearer than that afforded
under current application of Thornton.141
In United States v. Dickey-Bey,142 police officers had
knowledge that a package to be picked up from a local Mail
Boxes Etc. location contained two kilograms of cocaine.143 After
being provided with a description of the man who customarily
retrieved mail from the mailbox containing the package, officers
139. Id. Presumably, officers had no legal basis to detain or arrest the
woman until she entered the bank and further incriminated herself by
attempting to complete the loan documents—the requirement of an
uninterrupted nexus between observation and contact is specifically aimed at
avoiding a search incident to arrest in this type of situation. Allowing such a
search would veer the search incident to arrest doctrine closer toward police
entitlement, as Justice O’Connor expressed concern with avoiding in her
Thornton concurrence, and further away from a well-delineated exception.
140. Id.
141. The value of the proposed test is to advance Belton’s bright-line policy
to the “recent occupant” context, while acknowledging policy rationales
outside of the Chimel twins that are implicated by a “recent occupant”
situation. Furthermore, the results will often times not be the same. Consider
the fact pattern of Bush, but rather than the arrestee being contacted by
officers while reentering the automobile, assume she was contacted by officers
immediately after she exited the bank, with the automobile still about 200 feet
away. In this situation, there would be a strong argument for search of the
vehicle under current application of Thornton. Under the proposed test,
however, Thornton would be inapplicable due to interruption in the nexus
between observation and contact. Additionally, reversion to an examination of
Chimel would not likely find the passenger compartment of a vehicle 200 feet
away to be within the arrestee’s “immediate control.”
142. 393 F.3d 449 (4th Cir. 2004).
143. Id. at 450-53. Officers were notified that three packages would be
delivered to a local UPS Store in overnight delivery. The next morning police
traveled to the UPS Store, located the packages, and screened them with a
drug detection dog. After the dog “fixed” on the packages, they were opened
and found to contain cocaine. Officers resealed the packages and delivered
them to their destination, a personal mailbox at a local Mail Boxes Etc. store,
and waited for them to be picked up.
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awaited his arrival.144 Later that same day officers observed
Dickey-Bey drive an automobile into the parking lot, exit the
vehicle, and enter the store.145 After exiting the store with the
package in hand, Dickey-Bey was arrested between three and
thirty feet from the recently occupied automobile.146 Officers
proceeded to search the automobile incident to Dickey-Bey’s
arrest, during which they seized additional incriminating
evidence.147
In applying the nexus element of the proposed three-part
“recent occupant” test to the facts of Dickey-Bey, the modified
Thornton standard would be inapplicable. Although officers
144. Id. at 452.
145. Id. At this point in time, officers did not have probable cause to
execute an arrest. One officer, acting as a Mail Boxes Etc. employee, was to
alert the other officers when someone attempted to leave the store with the
package.
146. Id. There was a factual discrepancy between the story provided by
officers and the story provided by a Mail Boxes Etc. employee who witnessed
the arrest. Officers stated Dickey-Bey was three to five feet from the
automobile at the time of arrest, while the Mail Boxes Etc. employee stated
Dickey-Bey was approximately thirty feet from the automobile at the time of
arrest. The trial court resolved the discrepancy in favor of the employee,
finding that at the time of arrest, Dickey-Bey was “some 30 feet or more” from
the vehicle; the appellate court followed the trial court’s factual finding.
147. Id. Dickey-Bey was charged with “possession with intent to distribute
‘5 kilograms or more of a mixture or substance containing a detectable amount
of cocaine’ and for conspiracy to distribute five kilograms or more of cocaine.”
At trial, Dickey-Bey moved to suppress the evidence seized from his vehicle,
arguing his arrest was not lawful, and the search of his automobile was not
proper incident to arrest. The district court granted this motion, finding
officers did not have probable cause to arrest Dickey-Bey without a warrant,
and even if they did, the automobile was too far from Dickey-Bey to support its
search incident to his arrest. The appellate court reversed, ruling that the
officers did have probable cause to arrest Dickey-Bey without a warrant.
Further, the appellate court declined to determine whether the warrantless
search of the automobile was proper incident to arrest, instead holding that
officers had probable cause to search the vehicle under the “automobile
exception.” This case is presented not as an example of a lower court’s
application of Thornton, as the appellate court declined to rule on the issue of
whether the search was proper incident to arrest, but rather as an example of a
situation where the proposed three-part “recent occupant” test would not be
satisfied due to severance of the nexus between observation and contact.
Additionally, this fact pattern provides a situation where a reversion to a
Chimel analysis in lieu of Thornton would not likely support a search incident
to arrest. With the automobile located thirty or more feet from Dickey-Bey at
the time of arrest, a court would likely conclude, as the trial court in this case
did, that Dickey-Bey could not have obtained a weapon or evidentiary item
from the interior of the vehicle.
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observed the arrestee occupy the vehicle, and contact was made
after the arrestee occupied the vehicle, the nexus between
observation and contact was interrupted. This connection was
severed in two ways: (1) Dickey-Bey entered the Mail Boxes
Etc. store, an enclosed structure, and (2) officers failed to
undertake immediate efforts to contact Dickey-Bey when he
exited the vehicle.148
Under the proposed test, the warrantless search of DickeyBey’s automobile cannot be upheld on the basis of his recent
occupancy of that automobile. In addition, distinguishable from
the situation in Bush, a reversion to an examination of the twin
policy rationales of Chimel in lieu of Thornton is not likely to
permit a search incident to arrest. Dickey-Bey was determined
to have been upwards of thirty feet from the automobile at the
time of his arrest, a distance from which it is highly unlikely he
would have been able to reach a weapon or evidentiary item
from the vehicle’s interior.
Both Bush and Dickey-Bey provide examples of situations
where, although the observation and contact elements of the
proposed three-part test had been satisfied, the nexus between
observation and contact had been interrupted.149 For the reasons
stated, Thornton is inapplicable in both instances, and the only
basis for upholding a warrantless search of the automobile
incident to arrest would be if a court determines the arrestee was
in such a location for the twin policy concerns of Chimel to
148. Id.
149. For additional cases to be considered in light of the newly proposed
three-part “recent occupant” test, particularly the requirement of an
uninterrupted nexus between observation and contact, see, for example,
United States v. Sumrall, 115 F. App’x 22 (10th Cir. 2004) (nexus not
interrupted and search upheld); United States v. Barnes, 374 F.3d 601 (8th Cir.
2004) (nexus not interrupted and search upheld); Mack v. City of Abilene, No.
CIV.A. 104CV050C, 2005 WL 1149807 (N.D. Tex. May 12, 2005) (nexus
interrupted and search upheld); United States v. Mighty, No. CRIM.A. 04-54
GMS, 2005 WL 950627 (D. Del. Apr. 26, 2005) (nexus interrupted and search
found to be unconstitutional); United States v. Walston, No. CR. 04-78-B-W,
2005 WL 757592 (D. Me. Mar. 14, 2005) (nexus interrupted and search upheld);
Maiale v. Youse, No. CIV.A. 03-5450, 2004 WL 1925004 (E.D. Pa. Aug. 27,
2004) (nexus interrupted and search upheld); United States v. Edwards, No.
CR.A. 042000201KHV, 2004 WL 1534173 (D. Kan. Jun. 21, 2004) (nexus not
interrupted and search upheld); State v. Eckel, 863 A.2d 1044 (N.J. Super.
2004) (nexus not interrupted and search found to be unconstitutional).
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honestly support such a search.150
B. Three Possible Analyses
Under the proposed approach, depending on the
surrounding facts of the situation, there are three different
possible analyses a court may apply for a warrantless search of
an automobile conducted incident to arrest: (1) Belton’s wellestablished bright-line rule; (2) the proposed three-part “recent
occupant” test based on Thornton; or (3) Chimel’s area of
“immediate control.”151
Each situational analysis provides a straightforward and
clearly understandable bright-line trigger, rather than an
“inherently subjective and highly fact specific” inquiry.152 Each
may be applied without the requirement of an ad hoc
determination on the part of the officers in the field and
reviewing courts.153 This standard would be a return to the
“predictably enforced”154 rule sought by Belton, making it
possible to “reach a correct determination beforehand as to
whether an invasion of privacy is justified in the interest of law
enforcement.”155 Simply stated, the proposed three-part “recent
occupant” test will make police officers more efficient in
conducting vehicle searches incident to arrest, while still
affording criminal defendants their constitutional right to be free
from unreasonable searches and seizures.
150. It should be noted that there may potentially be a number of other
doctrines that could support a warrantless search of the automobile; this threepart test simply serves to clarify the search-incident-to-arrest doctrine. See
cases cited infra note 164.
151. Each of these different analyses are further discussed in Part III.B.1-3
infra.
152. Thornton, 541 U.S. at 623. Recall the Thornton Court’s concern with
avoiding a standard that would present an “inherently subjective and highly
fact specific” inquiry. It was feared such a standard would diminish an
individual’s ability to know the scope of his constitutional protection and a
police officer’s ability to know the scope of his authority. See also New York v.
Belton, 453 U.S. 454, 459-60 (1981).
153. See Thornton, 541 U.S. at 623, for the Court’s concern with avoiding a
standard that would require the “sort of ad hoc determinations on the part of
the officers in the field and reviewing courts that Belton sought to avoid.”
154. Belton, 453 U.S. at 459.
155. Id. at 458.
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1. Search Justified By Belton: A Return to Origins
First, when an officer contacts a suspect while he is
occupying a vehicle, Belton clearly applies and a warrantless
search incident to arrest may be upheld on the basis of the
bright-line rule set forth therein.156 In such a situation, it is not
necessary to look to Thornton’s “recent occupant” extension of
Belton—Belton’s original bright-line rule is sufficient guidance.
Clarifying Belton’s application in this manner returns Belton to
its origins,157 assuring the bright-line rule applicable to
automobile occupants is not confused with Thornton’s “recent
occupant” extension of that rule.
2. Search Justified By Thornton: Application of the Three-Part
“Recent Occupant” Test
Second, where an officer does not contact a suspect until
after he has occupied a vehicle, it then becomes necessary to
look to Thornton’s “recent occupant” extension of Belton.
Under the proposed three-part “recent occupant” test,
Thornton’s application is governed by a clear, bright-line rule.158
It is only fair to ensure police officers, reviewing courts, and all
citizens subject to the laws of our country are provided with such
an easily applied, straightforward standard—Belton made this
policy clear over twenty years ago.159
3. Search Justified By Chimel: The Twin Policy Rationales as
Limitation Rather Than Justification
Finally, where an officer does not contact an arrestee until
after he has occupied a vehicle and the requirements of the
proposed three-part “recent occupant” test are not satisfied, a
warrantless search of the automobile incident to the suspect’s
156. The Belton rule is discussed, supra note 120.
157. It should be noted that although many disagree with Belton’s origins,
particularly Belton’s reliance upon Chimel’s twin policy rationales, this is a
topic of concern outside the realm of this note. For an argument criticizing
Belton’s reliance upon Chimel’s twin policy rationales, see generally Lunney,
supra note 33. See also Moskovitz, supra note 44.
158. Recall in Thornton the arrestee was (1) observed by Officer Nichols
while occupying the automobile, (2) contacted by Officer Nichols after exiting
the automobile, and (3) the nexus between observation and contact had not
been interrupted. Thornton, 541 U.S. at 617-18. Thus, the three-part “recent
occupant” test comports with the facts of Thornton.
159. See discussion, supra note 40.
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arrest may only be upheld on the basis of the twin policy
rationales of Chimel.160 Only in a very limited number of
situations will the twin rationales of Chimel honestly support
such a search,161 generally where the suspect is so close to the
automobile that he could have easily accessed its interior.162
Plainly stated, where Belton and Thornton are both inapplicable,
a warrantless search of the automobile may be conducted
incident to arrest only when the automobile’s interior is within
the arrestee’s literal area of “immediate control.”163
In many ways, such a strict application of the twin policy
rationales of Chimel is a limitation on, rather than justification
for, the search-incident-to-arrest doctrine’s applicability to
“recent occupants.” It should be noted, however, that while this
is likely to preclude a search incident to arrest in a large number
of “recent occupant” cases not meeting the requirements of the
proposed test, there might still exist an alternate avenue upon
which the automobile may be searched without a warrant.164
160. For explanation of the twin policy rationales of Chimel, see discussion,
supra Part I.A.
161. See Rudstein, supra note 14, at 1353-59. Rudstein urges the courts to
adopt a literal interpretation of Chimel’s area of “immediate control.” This
approach, Rudstein argues, will render a search incident to arrest in the “recent
occupant” context “exceedingly rare” because such a search will only be
permissible “in those cases in which the interior of the vehicle is actually within
the immediate control of the arrestee.” Id. at 1359.
162. See United States v. Osife, 398 F.3d 1143 (9th Cir. 2005), for a situation
where the twin rationales of Chimel may support such a search. In Osife,
although officers had never observed the suspect “occupying” the automobile,
at the moment of arrest he was leaning against the vehicle with the door open.
In such a situation, it is logical to conclude the arrestee could have easily
reached a weapon or evidentiary item from the interior of the vehicle. The
Osife case is further discussed, supra Part III.A.1. See also Washington v.
Rathbun, 101 P.3d 119 (Wash. App. 2004), discussed supra Part III.A.1, and
United States v. Bush, 404 F.3d 263 (4th Cir. 2005), discussed supra Part
III.A.3, for additional situations where the proposed three-part “recent
occupant” test has not been satisfied, but the twin rationales of Chimel would
likely still support a warrantless search incident to arrest.
163. This is similar to the “limited proximity” approach urged in the
alternative by petitioner in Thornton. Under the “limited proximity” approach
a person can only be deemed a “recent occupant” of a vehicle if its interior is
within reaching distance at the time of arrest. See Brief for Petitioner at 35-38,
Thornton v. United States, 541 U.S. 615, No. 03-5165 (2004).
164. See, e.g., Florida v. Jimeno, 500 U.S. 248 (1991) and Schneckloth v.
Bustamonte, 412 U.S. 218 (1973) (discussing the opportunity for and scope of a
warrantless automobile search based on consent); Colorado v. Bertine, 479
U.S. 367 (1987) (setting forth the parameters of a warrantless impound
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CONCLUSION
Thornton v. United States has led the search-incident-toarrest doctrine, as it applies to “recent occupants” of an
automobile, astray from its purported justifications. Although
Thornton expanded Belton’s application of the search-incidentto-arrest doctrine from occupants to “recent occupants,” the
bright-line policy that served as Belton’s foundation did not
survive this expansion. Remaining in the wake is a pattern of
disarray in the lower courts, and a standard seemingly incapable
of predictable application. Just as the lack of a bright-line rule in
the “recent occupant” context has had a substantial affect on the
fair and consistent application of precedent, so too has reliance
upon policy rationales that are not logically implicated. As
Justice Scalia admonished in his Thornton concurrence: “In our
search for clarity, we have now abandoned our constitutional
moorings.”165
The proposed three-part “recent occupant” test presents a
way in which to reestablish those moorings. By recognizing
Belton’s concern for providing a clear, bright-line rule, we are
able to advance this policy to Thornton’s “recent occupant”
designation. Clarifying the search-incident-to-arrest doctrine in
this light, particularly as it applies to “recent occupants” of an
automobile, pays homage to the true underlying purpose of the
Fourth Amendment, and in so doing, clarifies the many
uncertainties sure to continually arise under current application.
Donald Ostertag*
inventory search of an automobile); Michigan v. Long, 463 U.S. 1032 (1983)
(permitting a limited warrantless search of an automobile where there is a
reasonable suspicion to believe the automobile contains weapons); United
States v. Ross, 456 U.S. 798 (1982) (creating the “automobile exception” to a
warrant requirement when officers have probable cause to believe a vehicle
contains contraband or crime evidence).
165. Thornton, 541 U.S. at 615, 628-29 (Scalia, J., concurring) (quoting
United States v. McLaughlin, 170 F.3d 889, 894 (9th Cir. 1999) (Trott, J.,
concurring)).
*
J.D. candidate, Thomas Jefferson School of Law, May 2007. A very special
thanks to Omar Iqbal for his invaluable assistance through the writing process.
Thanks also to Matthew Berkowitz, Christopher Nalls, Jennifer Siverts, and
Andrea Patten for their advice and expertise. And last, but certainly not least,
a very warm thanks to my family for their continual love and support.
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