1

The Honorable Charles R. Wolle, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-3216 

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa. 

James Poggemiller, *

* 

Appellant. *

___________

Submitted: May 11, 2004

Filed: July 13, 2004

___________

Before WOLLMAN, HANSEN, and BYE, Circuit Judges.

___________

BYE, Circuit Judge.

James Poggemiller was convicted of possession of marijuana with intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), carrying a firearm

during and in relation to a drug trafficking offense in violation of 18 U.S.C. §§ 2 and

924(c)(1)(A), and being a felon in possession of a firearm and ammunition in

violation of 18 U.S.C. § 922(g)(1). The district court1

 sentenced him to 168 months

imprisonment. At issue in this appeal is whether the district court properly denied
-2-

Poggemiller's motion to suppress, concluding a search of his vehicle was permissible

under the U.S. Constitution's Fourth Amendment, and his motion to quash, upholding

the subsequent search of his residence. We affirm.

I

On June 18, 2002, Deputy Charles Thompson of the Des Moines County

Sheriff's office was seeking the appellant on an arrest warrant for armed assault.

Deputy Thompson was parked close to Poggemiller's residence and spotted what he

believed to be his red Pontiac Bonneville leaving. The officer followed the car and

when he caught up to it found the same parked in the middle of a rural road. At this

point, Poggemiller and another man were standing outside the car. Poggemiller was

standing approximately ten feet from the vehicle and the other man was

approximately five additional feet away. The deputy took both men into custody. 

Deputy Thompson proceeded to search and inventory the vehicle. During his

search, he noticed an armrest in the middle of the back seat. He folded down this

armrest revealing a plastic trap door. The deputy described this trap door as being

bigger than a breadbox and as "a factory-designed device, I believe to allow things

longer than the trunk to get passed into the back seat like a fishing pole or

something." He indicated this was a location which could have been accessed by

Poggemiller from the passenger compartment. 

When the deputy opened the trap door, he saw just past its threshold "a plastic

baggie with what looked and smelled like a brick of marijuana." He then pulled out

the baggie of marijuana and retrieved his flashlight so as "to look further inside the

trap door." When he looked inside with his flashlight, he "saw two more baggies with

approximately one pound bricks of marijuana in each and a nylon shoulder holster

with what appeared to be a .45 pistol inside." At that point, he contacted the narcotics

task force, which completed the search of the vehicle.
-3-

Poggemiller filed a motion to suppress evidence. Following an evidentiary

hearing, the district court denied the motion. The court also denied his motion to

quash the search warrant.

Following a trial, the jury returned guilty verdicts on all counts, and

Poggemiller was sentenced to a total of 168 months. This appeal followed.

II

In reviewing a defendant's challenge to the denial of a motion to suppress, this

court examines the factual findings underlying the district court's denial of the motion

for clear error and reviews de novo the ultimate question of whether the Fourth

Amendment has been violated. United States v. Gillon, 348 F.3d 755, 758-59 (8th

Cir. 2003); United States v. Walsh, 299 F.3d 729, 730 (8th Cir. 2002). 

Poggemiller contends the search of the car was not valid because he had exited

the car prior to Deputy Thompson's arrival at the scene, and therefore he was not an

"occupant" within the meaning of New York v. Belton, 453 U.S. 454 (1981). Under

Belton, when a police officer makes a lawful custodial arrest of an automobile's

occupant, the Fourth Amendment allows the officer to search the vehicle passenger

compartment as a contemporaneous incident of arrest. Id. at 460. We reject

Poggemiller's argument because it has been squarely foreclosed by the Supreme

Court's recent decision in Thornton v. United States, 124 S. Ct. 2127 (S. Ct. 2004).

In Thornton, the Supreme Court held when a police officer has made a lawful

custodial arrest of an occupant of an automobile, the Fourth Amendment allows the

officer to search the passenger compartment of that vehicle as a contemporaneous

incident of arrest, even when an officer does not make contact until the person

arrested has left the vehicle. Id. at 2129; see also United States v. Snook, 88 F.3d
-4-

605, 608 (8th Cir. 1996) (holding the fact defendant had just stepped out of his

vehicle as the officer arrived did not alter defendant's status as an "occupant" of the

vehicle).

In this case, Poggemiller does not dispute Deputy Thompson made a lawful

custodial arrest of him and that he had occupied the vehicle prior to the deputy's

arrival. Thus, under Thornton, Deputy Thompson did not violate his Fourth

Amendment rights by searching the passenger compartment of the vehicle as a

contemporaneous incident of the arrest even though the deputy did not make contact

with him until he had left the vehicle.

Under Belton, when police search a passenger compartment incident to arrest,

they "may also examine the contents of any containers found within the passenger

compartment, for if the passenger compartment is within reach of the arrestee, so also

will containers in it be within his reach." Belton, 435 U.S. at 460. Such containers

may be searched whether they are open or closed. Id. at 461. Although Belton made

clear that "container" did not include the trunk, it did specify "'[c]ontainer' here

denotes any object capable of holding another object. . . [and] thus includes closed

or open glove compartments, consoles, or other receptacles located anywhere within

the passenger compartment . . ." Id. at 461 n.4.

We conclude the search incident to arrest permissibly extended to the trap door

compartment, since it was accessible to Poggemiller and therefore within Belton's

rule that all areas "within reach" of an occupant of the passenger compartment are

subject to search. See United States v. Thompson, 906 F.2d 1292, 1298 (8th Cir.

1990) (stating passenger compartment is interpreted broadly by most courts and

generally includes whatever area is within a passenger's reach). See also United

States v. Caldwell, 97 F.3d 1063, 1067 (8th Cir. 1996) (concluding "police could

lawfully search the passenger compartment of the car, including the hatchback

portion of the car"); United States v. Olguin-Rivera, 168 F.3d 1203, 1205 (10th Cir.
-5-

1999) ("passenger compartment [included any area] generally reachable without

exiting the vehicle, without regard to the likelihood in a particular case that such a

reaching was possible") (quotation omitted); United States v. Veras, 51 F.3d 1365,

1372 (7th Cir. 1995) (holding secret compartment built into back seat was lawfully

searched incident to arrest because it was within reach of occupants of vehicle).

Poggemiller also contends the district court erred in denying his motion to

quash the search warrant for his residence which was obtained based in part on the

items found during the search of the vehicle. He does not raise an independent

challenge to the validity of this warrant; rather he contends the evidence seized during

the search of his home should be suppressed as being fruit of the poisonous tree.

Because we conclude there has been no Fourth Amendment violation, then it follows

the district court properly denied Poggemillers' "motion to quash."

III

We affirm the judgment and conviction in all respects.

______________________________