United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-2111

___________

United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska. 

Zachary Hrasky, * 

*

Appellee. *

___________

Submitted: October 13, 2005

Filed: July 18, 2006

___________

Before RILEY, JOHN R. GIBSON, and COLLOTON, Circuit Judges.

___________

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.
-2-

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. Enlow 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.
-3-

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 (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 460. Belton built on United States v. Robinson, 414 U.S. 218

(1973), which held that a lawful custodial arrest establishes authority to conduct a full
-4-

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. 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 (quoting Robinson, 414 U.S. at 235). The

Court sought to establish a “workable rule” for this category of cases, because

“[w]hen 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. Thus, in the case

of a full custodial arrest of an “occupant” or “recent occupant” of a vehicle, id. at 460,

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 (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.

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
-5-

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 (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 Doward). Despite some recent interest

in rethinking the doctrine, Thornton, 541 U.S. at 624 (O’Connor, J., concurring in

part); id. at 628 (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
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.

-6-

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 (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; see also Atwater v. City of Lago

Vista, 532 U.S. 318, 324 (2001); id. at 363-64 (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
-7-

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, 813 P.2d 888, 891 (Idaho 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 (1977), overruled in part on other grounds by

California v. Acevedo, 505 U.S. 565 (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;

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. 
2

This is the timing and sequence of events as found by the magistrate judge, and

which a review of the videotape made by the officer's dashboard camera confirms. 

-8-

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, 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. 

JOHN R. GIBSON, Circuit Judge, dissenting.

I respectfully dissent. On July 2, 2004, at 3:45 p.m. Nebraska State Trooper

Jeff Wallace stopped the truck driven by Zachary Hrasky, having reason to believe

that he was driving without a proper license. When this proved to be true, the trooper

handcuffed Hrasky and placed him in the back of the patrol car. Shortly after 4:00

p.m., an investigator arrived at the scene and spoke with Hrasky in the patrol car for

the next forty-five minutes. Finally, at 5:05 p.m., officers began a search of Hrasky's

truck and found two handguns.2

 The question before us is whether this warrantless

search of Hrasky's truck, which occurred more than one hour after Hrasky's arrest for
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driving with a suspended license, falls on the permissible side of the "bright-line" rule

of New York v. Belton, 453 U.S. 454 (1981). Because, unlike the majority, I believe

that it does not, I would affirm the district court's order suppressing the firearms.

"[I]t is a cardinal principle that 'searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se unreasonable under the

Fourth Amendment—subject only to a few specifically established and welldelineated exceptions.'" Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz

v. United States, 389 U.S. 347, 357 (1967)). One such exception permits the

warrantless search of a vehicle's passenger compartment "as a contemporaneous

incident" of the arrest of that vehicle's occupant or recent occupant. Belton, 453 U.S.

at 460-61. Although "[s]uch searches have long been considered valid because of the

need 'to remove any weapons that [the arrestee] might seek to use in order to resist

arrest or effect his escape' and the need to prevent the concealment or destruction of

evidence," id. at 457 (quoting Chimel v. California, 395 U.S. 752, 763 (1969)), it is

equally well-established that "[s]earches incident to arrests are not limitless." United

States v. Pratt, 355 F.3d 1119, 1121-22 (8th Cir. 2004). Instead, they are to be treated

as the exception to Constitutional norms that they are, lest officers in the field treat

them as a "police entitlement." Thornton v. United States, 541 U.S. 615, 624 (2004)

(O'Connor, J., concurring); United States v. Barnes, 374 F.3d 601, 605 (8th Cir. 2004)

(Smith, J., dissenting), cert. denied, 543 U.S. 1079 (2005); see also Thornton, 541

U.S. at 627 (Scalia, J., joined by Ginsburg, J., concurring) ("But conducting a Chimel

search is not the Government's right; it is an exception-justified by necessity-to a rule

that would otherwise render the search unlawful."). Although the Supreme Court has

made it clear that courts are not to determine on a case-by-case basis whether or not

one of the Chimel justifications was present, Belton, 453 U.S. at 459 (quoting United

States v. Robinson, 414 U.S. 218, 235 (1973)), it nonetheless remains the

government's burden to establish its entitlement to the search incident to arrest

exception; if the government fails to make such a showing, the evidence must be

suppressed. See Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971). 
3

The majority suggests that the search took place "immediately after the police

determined to proceed with a full custodial arrest," Maj. at 7, and finds it "significant"

that "the officers were unsure whether [Hrasky] would be transported to the police

station for booking, or released at the scene with only a citation." Maj. at 6. This is

irrelevant to the question of whether Hrasky was subject to a "lawful custodial arrest"

within the meaning of Belton. Pratt, 355 F.3d at 1124 ("An officer's uncommunicated

subjective intent is irrelevant to the question of whether an individual has been

seized.") (citing United States v. Mendenhall, 446 U.S. 544, 554 n. 6 (1980); United

States v. Bloomfield, 40 F.3d 910, 916 (8th Cir. 1994) (en banc))

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To invoke the search incident to arrest exception, the government must first

demonstrate that there was a "lawful custodial arrest." Belton, 453 U.S. at 460; see

also United States v. Wells, 347 F.3d 280, 287 (8th Cir. 2003) ("Once [defendant] was

arrested, law enforcement was authorized to conduct a search incident to the arrest.").

We have previously held that, for purposes of Belton, "a seizure of a person predicated

upon probable cause is properly regarded as an arrest." Pratt, 355 F.3d at 1123.

Police had probable cause to believe that Hrasky was driving under suspension when

Trooper Wallace handcuffed him and placed him in the patrol car. Therefore, as the

magistrate judge correctly recognized and notwithstanding the majority's suggestion

to the contrary,3

 it was at this point that Hrasky was under arrest for purposes of

Belton, since it was at this point that "a reasonable person would have believed that

he was not free to leave." Pratt, 355 F.3d at 1122 (quoting California v. Hodari D.,

499 U.S. 621, 628 (1991)).

Thus, having established that Hrasky was subject to a lawful custodial arrest for

driving while suspended at the point when he was handcuffed and placed in the patrol

car, the government must then show that the search of Hrasky's truck, which occurred

more than one hour later, was "a contemporaneous incident of that arrest." Belton,

453 U.S. at 460. Admittedly, a review of the law in this area demonstrates that "what

is 'contemporaneous' is in the eye of the beholder." United States v. Smith, 389 F.3d
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944, 954 (9th Cir. 2004) (Wardlaw, J., concurring), cert. denied, 544 U.S. 956 (2005).

Nonetheless, it is well-established that "[s]earches incident to arrest have both a

geographic and temporal limitation." United States v. Currence, 446 F.3d 554, 557

(4th Cir. 2006); see also Thornton, 541 U.S. at 622 ("[A]n 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."); United States v. Doward, 41 F.3d 789, 792 (1st Cir. 1994)

(discussing "temporal and spatial limits of the bright-line rule announced in Belton").

Thus, if a search is too "remote in time or place" it cannot be fairly characterized as

a contemporaneous incident of the arrest, since the justifications permitting the search

to be conducted without a warrant no longer apply. Chimel, 395 U.S. at 754 (quoting

Preston v. United States, 376 U.S. 364, 367 (1964)); United States v. Chadwick, 433

U.S. 1, 15 (1977), overruled in part on other grounds by California v. Acevedo, 505

U.S. 565 (1991).

The search here, conducted at the scene of the arrest, does not run afoul of the

geographical limitation, notwithstanding the fact that a handcuffed Hrasky, held in the

back seat of a patrol car, would have been hard-pressed to reach either evidence or

weaponry stowed in the passenger compartment of his truck. See, e.g., Barnes, 374

F.3d at 604 ("The lawfulness of the search does not depend on whether the occupant

was actually capable of reaching the area during the course of the police encounter.")

(emphasis in original); see also Thornton, 541 U.S. at 626 (Scalia, J., concurring,

joined by Ginsburg, J., concurring) (recalling Justice Goldberg's reference to "the

mythical arrestee 'possessed of the skill of Houdini and the strength of Hercules.'")

However, the greater than one-hour delay here between the arrest and the search does

run afoul of the temporal limitation.

For a search incident to an arrest to be timely it must be "substantially

contemporaneous" with the arrest. Stoner v. California, 376 U.S. 483, 486 (1964).

Although this does not mean it must be "made at the same time" as the arrest, see

Webster's Third New International Dictionary, 391 (1981) (defining
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"contemporaneous"), we have nonetheless characterized the timeliness requirement

as "constitutionally fairly strict." Curd v. City Court of Judsonia, 141 F.3d 839, 843

(8th Cir. 1998). Thus, we require police to conduct the search "hard upon the heels

of the arrest." Wells, 347 F.3d at 287 (holding that where facts created doubt as to

whether search followed closely after arrest, court would not sanction search as

"contemporaneous" incident of arrest); see also United States v. Castaneda, 438 F.3d

891, 894 (8th Cir. 2006) (distinguishing a Belton vehicle search from a warrantless

search conducted pursuant to the automobile exception, since under the latter, "the

vehicle need not be immediately searched."). Accordingly, we routinely sanction

searches as incident to arrest where they are conducted shortly after an arrest. E.g.,

Barnes, 374 F.3d at 603 (immediately after arrest); United States v. McCrady, 774

F.2d 868, 871-72 (8th Cir. 1985) (same); United States v. Snook, 88 F.3d 605, 606

(8th Cir. 1996) (approximately five minutes after arrest). 

We have not, however, until today, approved of a delay between an arrest and

a warrantless search claimed to be an incident of it, anywhere near as lengthy as the

delay that occurred here. Nor would we have had any reason to, since the Supreme

Court has refused to apply the search incident to arrest exception in the context of a

similar delay, Chadwick, 433 U.S. at 15 (holding that evidence obtained from search

conducted ninety minutes after arrest must be suppressed because "no exigency"

justified the search as incident to the arrest), and other Circuits have, for the most part,

followed suit. See, e.g., United States v. $639,558 in U.S. Currency, 955 F.2d 712,

716-18 (D.C. Cir. 1992) (holding that a thirty to forty-five minute delay rendered

search too "remote in time" to sustain as incident to an arrest); United States v. Vasey,

834 F.2d 782, 787 (9th Cir. 1987) (search conducted thirty to forty-five minutes after

arrest did not "follow[] closely on the heels of the arrest" and was therefore, too

remote in time); see also Doward, 41 F.3d at 793 n.3 (expressly reserving question of

whether delay between an arrest and search "might become so protracted as to raise

judicial eyebrows in an exceptional case" and citing the delay in Vasey as this kind

of "exceptional case."); but see United States v. Fiala, 929 F.2d 285, 288 (7th Cir.
4

The majority's reliance on the Ninth Circuit's decision in Smith is all the more

problematic because the precise issue there was whether "the warrantless search of a

vehicle incident to a contemporaneous arrest may precede the arrest," id. at 952

(emphasis added), and not how long police may delay after arresting a suspect before

searching her vehicle. Smith's holding on this issue, namely that probable cause to

arrest is a sufficient substitute for a custodial arrest to trigger the Belton rule, has been

specifically rejected by at least one Circuit, see United States v. Powell, --- F.3d ----,

2006 WL 1715683, *6 (D.C.Cir. June 23, 2006), and is in tension with our Circuit's

cases holding that it is only after a lawful custodial arrest that law enforcement may

conduct a warrantless vehicle search pursuant to Belton. E.g., United States v.

Rowland, 341 F.3d 774, 783 (8th Cir. 2003) ("Because Rowland was not arrested, law

enforcement could not have conducted a search incident to arrest pursuant to

[Belton]"); Wells, 347 F.3d at 287 ("Once [defendant] was arrested, law enforcement

was authorized to conduct a search incident to the arrest.").

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1991) (holding that one and one-half hour delay between arrest and search while

officers waited for drug dog to arrive was "not unreasonable").

Unlike the majority, I would follow this authority and conclude that the search

here was simply too remote in time to be fairly characterized "as a contemporaneous

incident" of Hrasky's arrest more than one hour earlier. Cf. Belton, 453 U.S. at 462

(approving a search that "followed immediately upon that arrest") (emphasis added).

In order to reach the opposite conclusion, the majority adopts a new rule under which

a search "may be conducted well after the arrest, so long as it occurs during a

continuous sequence of events," Maj. at 5 (citing United States v. Smith, 389 F.3d

944, 951 (9th Cir. 2004); United States v. McLaughlin, 170 F.3d 889, 892 (9th Cir.

1999)).4

 The majority characterizes the "determinative question" under this standard

as whether the delay between search and arrest was a "reasonable" one. Maj. at 5

(quoting United States v. Han, 74 F.3d 537, 543 (4th Cir. 1996)); see also Maj. at 7

(citing Fiala, 929 F.2d at 288 (evaluating delay between arrest and search for

reasonableness in the circumstances)). Not only does the majority's amorphous new

rule appear to conflict with our Circuit's requirement that the search "follow hard upon

the heels of the arrest," Wells, 347 F.3d at 287, it makes an "impressionistic blur" of
5

As law enforcement and reviewing courts continue to be called upon to apply

Belton, its bright-line rule may become increasingly less illuminating, especially in

close cases such as this. Indeed, some have expressed concern with the soundness of

the entire Belton framework. See e.g., Thornton 541 U.S. at 624 (O'Connor, J.,

concurring) (noting that "lower court decisions seem now to treat the ability to search

a vehicle incident to the arrest of a recent occupant as a police entitlement rather than

as an exception justified by the twin rationales of Chimel ... [This is] a direct

consequence of Belton's shaky foundation."); Thornton, 541 U.S. at 625, 632 (Scalia,

J., concurring, joined by Ginsburg, J., concurring) (arguing that the majority's "effort

to apply [Belton] to this search stretches it beyond its breaking point" and suggesting

instead that the Court "limit Belton searches to cases where it is reasonable to believe

evidence relevant to the crime of arrest might be found in the vehicle."); Belton, 453

U.S. at 463-64 (Brennan, J., dissenting) (fearing that the Belton majority "may signal

a wholesale retreat from our carefully developed search-incident-to-arrest analysis"

by "formulating an arbitrary 'bright-line' rule . . . that fails to reflect Chimel's

underlying policy justifications"); United States v. Weaver, 433 F.3d 1104, 1107 (9th

Cir. 2006) ("respectfully suggest[ing] that the Supreme Court may wish to re-examine

this issue"); United States v. Osife, 398 F.3d 1143, 1147 (9th Cir.), cert. denied, 126

S.Ct. 417 (2005) ("Moreover, it seems to us that Justice Scalia's 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."); Barnes, 374 F.3d at 605 (Smith, J.,

dissenting) ("I share the concerns expressed by Justices O'Connor and Scalia in

Thornton that some may view a search incident to an arrest as 'a police entitlement.'");

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Belton's bright-line rule, McLaughlin, 170 F.3d at 894 (Trott, J., concurring), thereby

placing police officers in the position of making precisely the sort of ad hoc

determinations Belton's bright-line rule sought to avoid. See Thornton, 541 U.S. at

623; see also United States v. Pittman, 411 F.3d 813, 816 (7th Cir. 2005) ("Police

shouldn't have to carry well-thumbed copies of the multivolume LaFave treatise on

search and seizure with them wherever they go."). Admittedly, the majority's new rule

may not prove problematic to apply in the run-of-the-mill situation, since the delay

between arrest and search will almost always be far less than that which occurred here,

see,e.g., Smith, 389 F.3d at 947, 951 (search and arrest conducted at roughly the same

time); McLaughlin, 170 F.3d at 891-92 (five minute delay).5

 However, by holding
McLaughlin, 170 F.3d at 894 (Trott, J., concurring) (stating that "in our search for

clarity, we have now abandoned our constitutional moorings and floated to a place

where the law approves of purely exploratory searches of vehicles"). However, the

Supreme Court declined to upset Belton in Thornton, and thus it remains the standard

by which to judge warrantless vehicle searches conducted as a contemporaneous

incident of an arrest. See Agostini v. Felton, 521 U.S. 203, 237 (1997).

-15-

that, in some not-fully-delineated circumstances constituting a "continuous sequence

of events," officers may conduct a warrantless search of a vehicle, even when more

than an hour has elapsed since the arrest, the majority comes dangerously close to

"transform[ing] the search incident to arrest exception into a search following arrest

exception." Vasey, 834 F.2d at 788 (emphasis in original). The Constitution provides

for no such exception.

 

For these reasons, I conclude that the search of Hrasky's truck fell on the

impermissible side of Belton's bright-line. Accordingly, I would affirm the wellreasoned order of the district court.

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