William H. Rehnquist: We'll hear argument next in No. 03-5165, Marcus Thornton v. the United States. Mr. Dunham.
Frank W. Dunham, Jr.: Mr. Chief Justice, and may it please the Court: The central issue in this case is whether the Government, having failed to prove that the police initiated contact with Petitioner Thornton while he was an occupant of his automobile and having failed to prove that when Mr. Thornton was arrested, that he was even within reaching distance of his automobile, may rely on New York v. Belton to justify a warrantless, suspicionless search of Mr. Thornton's automobile incident to arrest. Now, it's the Government's burden--
Sandra Day O'Connor: Well, now, Belton did involve a car search after the suspects had left the car and were under arrest. They weren't in a position to reach into the car.
Frank W. Dunham, Jr.: --They were within reaching distance of the vehicle, Justice O'Connor.
Sandra Day O'Connor: And arrested.
Frank W. Dunham, Jr.: They... they were standing by the side of the car at the... at the moment of arrest.
Sandra Day O'Connor: Right, but then they were disabled by the arrest. They couldn't reach into the car, and after that, the search occurred, and we... we said, okay, that you could search if... for a recent occupant of the vehicle. I just... I think the reasons articulated in Belton weren't all that clear, but it may cover this case.
Frank W. Dunham, Jr.: Well, Your Honor, I... I believe that when you focus on the word recent, it's not a very bright line test unless you flesh it out and give it some definition. I believe I was a recent occupant of my automobile this morning. Somebody could say I was recently in that, but that wouldn't mean that they could go search it. Well, the facts show--
Sandra Day O'Connor: Do we know from the facts here?
Frank W. Dunham, Jr.: --a lot less... the facts here show a lot less time, but recent doesn't give the kind of clear bright line that Belton said it was trying to draw because it... it's open to a lot of interpretation. Our--
Ruth Bader Ginsburg: How about moments?
William H. Rehnquist: You conceded... the Fourth Circuit said that it was conceded in the... that he was in close proximity to his vehicle when Officer Nichols approached him, and the record does conclusively show that Officer Nichols observed Thornton park and exit his automobile and then approached Thornton within moments. You don't dispute any of that I take it.
Frank W. Dunham, Jr.: --No. Those... those are the facts of the case, Your Honor. But moments again... is he... is he 5 yards, 10 yards, 15 yards away from the vehicle? We... I think we need to go back to what Belton was all about. Belton said that it concerns the proper... quoting at page 459 of the Belton opinion, it says the proper scope of a search of the interior of an automobile, incident to a lawful custodian... custodial arrest of its occupants. And the Belton rule itself says, quote, at page 460, when a policeman has made a lawful arrest of the occupants of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. Belton was focusing on that highly dangerous situation when a police officer initiates contact with and approaches a... an occupied vehicle. As this Court recognized in Pennsylvania v. Mimms, that may be the most highly dangerous situation an officer faces.
Ruth Bader Ginsburg: But there was no search until the... Belton was... wasn't he in... in the patrol car by the time they started the search?
Frank W. Dunham, Jr.: So was Mr. Thornton, Your Honor, and I--
Ruth Bader Ginsburg: But... so I... that's what I don't... it's quite different from search into... incident to arrest. The... the area around the defendant, the defendant may still grab a gun. But the one thing we know is that when the defendant... when the suspect is sitting in the patrol car with handcuffs on, there isn't any danger that the police faces when they're doing the search. When they arrested him, yes, but not when they search... do the search.
Frank W. Dunham, Jr.: --I would agree with that 100 percent, Your Honor, but the converse of that position is that in order to do the search, the... that he's allowed to do under the Fourth Amendment, that... that right to search fixes at the moment he effects the custodial arrest. You don't want to... or it's not reasonable to require the officer to conduct that search with the suspect at his elbow. So while I would agree with Your Honor as a... as a very practical matter, there is no danger to the officer in the situation where the man is arrested, stuffed in the back of the squad car, and then we go search, that's kind of a fiction. But on the other hand, it may be a kind of a reasonable fiction because otherwise, the converse is, if the officer is going to search the car, he's got to do it with Mr. Thornton or Mr. Belton standing right beside him. And that's why--
Ruth Bader Ginsburg: So you don't object to the search taking place when there's no danger to the officer, but you say in order to do that non-dangerous search, the officer has to put himself in danger when he makes the arrest.
Frank W. Dunham, Jr.: --That's... that's right. I... and I... and I believe, Your Honor, that's why... this case is really presenting a situation where we're dealing with the harm to the Fourth Amendment instead of really dealing with potential danger to the officer. Modern police practices are going to have a Mr. Belton or a Mr. Thornton in the back of the squad car at the time these searches incident to the arrest under Belton or whether you're operating--
Sandra Day O'Connor: Was there... were there reasonable grounds here, do you concede that, for the Terry pat-down of petitioner?
Frank W. Dunham, Jr.: --Your Honor, there may or may not--
Sandra Day O'Connor: Is that contested?
Frank W. Dunham, Jr.: --The... that ground, that exception to the warrant requirement was not advanced by the Government below.
Sandra Day O'Connor: All right. I mean, there was a Terry stop. There was a pat-down. Narcotics were found. He was arrested. Right? Subsequently the search.
Frank W. Dunham, Jr.: That's correct. We--
Sandra Day O'Connor: Of the vehicle.
Frank W. Dunham, Jr.: --We have not--
Sandra Day O'Connor: Now, had... had the officer not made an immediate search of the vehicle, presumably the police would have to have taken precautions to safeguard the car and make an inventory search of it. So they're going to find the stuff anyway, aren't they?
Frank W. Dunham, Jr.: --Well, Your Honor, the... the Fourth Circuit did not address--
Sandra Day O'Connor: Isn't that right?
Frank W. Dunham, Jr.: --Well, not necessarily, Your Honor. We're not conceding that particularly in this case. We're not saying that there... this case involves a car that was parked in a... in a shopping mall parking lot. And the only motor vehicle violation didn't authorize a towing of the vehicle. So that the... the... there is an inadequate record below with regard to whether or not there would have been an inevitable towing and inventory of this car.
Anthony M. Kennedy: Well, it seems to me that Justice O'Connor's questions are... are getting to your comment that Belton is a... is a fiction. And maybe it's not a fiction. Maybe the officer, at the time he conducts the search, is not in immediate danger, but if he left the vehicle without conducting the search, a confederate can come by. There could be somebody with another key. A passer-by can come and get the gun if the car isn't locked, and there's going to be an inventory search anywhere... anyway. So Belton, rather than being a fiction, makes a good deal of sense in terms of safety, maybe not safety at the time the officer is making the very search. Maybe that's somewhat fictional.
Frank W. Dunham, Jr.: You could make the same argument with regard to the house in Chimel, that we limit the search to the area within reaching distance in the room that the man is in. We don't let him go into the kitchen or the bedroom. But there could be accomplices there. There could be guns there.
Anthony M. Kennedy: Houses are... houses are stationary and cars are not. So we have to draw the line there.
Frank W. Dunham, Jr.: Well, it... the... if the... the justification in Belton for allowing the vehicle search says it's not a departure from Chimel, and it limits the search to an area within the reaching distance. It's based on a generalization, Your Honor, that everything within the narrow passenger compartment of the vehicle is within reach of an occupant. Now, when a man is no longer an occupant and has become a pedestrian and is walking on the street, that generalization that he can reach everything in the narrow passenger compartment of an automobile no longer makes any sense.
William H. Rehnquist: Well, then... then Belton should have been... if you're right, Belton should have... not have been decided the way it was.
Frank W. Dunham, Jr.: Your Honor, Belton was decided absolutely correctly I believe. The... the... Roger Belton was approached by the officer while he was an occupant of the vehicle. The officer asked him to step out of the car. I do not believe that we want to have our search incident to arrest doctrine turn on whether the officer decides to have him step out before he places him under arrest or arrest him, sit him in the... sitting in the vehicle. Five other--
Ruth Bader Ginsburg: Well, suppose this... this officer lets Mr. Thornton go to the shopping mall but is standing guard next to the car and Mr. Thornton then comes back, enters the car and just as he enters, the police officer says, you're arrested. Then he could do--
Frank W. Dunham, Jr.: --In my view he would not be able to do a Belton search. He would be able to a Chimel search. He'd be able to arrest the individual under Chimel, which is still the... the law in this Court, and he would be able to conduct a search of anything within Mr. Thornton's reaching distance at the time.
David H. Souter: --So if-- --So if the car were... the car door were unlocked and his reach would have been long enough to get inside the... the car if the door were open, he could search into the car?
Frank W. Dunham, Jr.: If... if the... if the car was... if he could... he could search for anything within reaching distance of the person he's arresting.
David H. Souter: What about the answer to my question?
Frank W. Dunham, Jr.: If he could reach into the car, he could... he could get anything within the man's reach.
Antonin Scalia: Why is that reasonable? Why doesn't he tell him, look it, move off, get... get 10 yards away from the car, get 20 yards away, however? I... I mean, you... you don't really suggest that there is a necessity to conduct a Belton search in order to protect the officer. All he has to do is say, get away from the car.
Frank W. Dunham, Jr.: Well, I... I agree with Your Honor that if he hasn't arrested the man and he has an opportunity to let the man move away from the car before he conducts the arrest, he's certainly acting as a prudent officer in protecting his own safety. I would agree with that.
Speaker: It seems to me--
Stephen G. Breyer: --Belton must then rest on some kind of bright line administrative consideration because you're attacking Belton in various ways which are logical. But our problem I think in this case is to decide whether the particular limit that you propose makes sense, and that's where I'm having a problem because what you say is that the... the line to be drawn around Belton is not just a line of... in time and space, which I could understand. But you want to say it depends on whether the policeman initiated conduct with the individual before he exited the car. And that seems to me that you're trying to distinguish between the case where the policeman notices a wanted suspect driving, pulls over to the side. The police... the... the suspect takes off and runs over to a fence. Now, that would be okay. That's Belton. But the car stops before the policeman recognizes him. The driver gets out and then the policeman recognizes him, and then he takes off for the fence and it's exactly the same. That you would say is not Belton. Now... now, that line that you're drawing there to me... I... I don't understand it at all in terms of the Belton rationale or administrative. It would make it more complicated and it wouldn't achieve that much. It seems... in other words, I want you to explain why that line is a rational way of limiting Belton.
Frank W. Dunham, Jr.: I would suggest, Your Honor, that the man who exits the vehicle and runs to the fence, 15, 20, 30 yards from the vehicle, whether he did it because the police pulled up behind him and turned the flashers on or whether the policeman surprised him as he was coming out of the car, neither one of those searches are good under Belton because the man... it's... it's no longer appropriate in my judgment to rely--
Stephen G. Breyer: That's not what the question presented says. It says, when the arrestee was not in the car when the police initiated contact with him.
Frank W. Dunham, Jr.: --I understand.
Stephen G. Breyer: So what I thought you were advocating is if the policeman was not in the car when the police initiated contact with him, unless he's within reaching distance, which he isn't... if he's not in the car when the police initiated contact with him, then don't apply Belton.
Frank W. Dunham, Jr.: That's... that's correct, Your Honor.
Stephen G. Breyer: And that was the line that I was having trouble figuring out a justification for.
Frank W. Dunham, Jr.: That... that's correct, Your Honor, and if I might respond. The... our... our test under Belton has two prongs to it. One is that he's in the car when the police initiate contact with him. The second is that he's arrested within reaching distance of the car. So your hypothetical that the man runs to the fence--
Stephen G. Breyer: You're saying that Belton never applies as within reaching... if he's outside reaching distance of the car.
Frank W. Dunham, Jr.: --If he's... if he's outside reaching distance, it doesn't make any sense--
Stephen G. Breyer: Okay. That's... that's one possible rule. That would... that would invalidate what is ordinary police practice in almost every place, which is that they remove him, he's outside the police... I take it it would.
Frank W. Dunham, Jr.: --Well, it's the moment--
Antonin Scalia: Can the policeman make him stay within reaching distance? Wait. Don't... don't get any further than that. I want you to stay right there.
Frank W. Dunham, Jr.: --The policeman can arrest him and take control of him. So I would argue yes, he can make him stay within reaching distance. The... the justification for the Belton search is to protect the officer. It's not reasonable to think that he's going to effect his arrest at a point that increases the danger to himself just so that he can make a search.
Stephen G. Breyer: Okay. I mean, I understand the argument, and it's been made many times and there's a lot of logic to it. But it's been pretty consistently rejected. So... but I got it. At least I understand it and... and maybe it will be accepted or not. But let's put that one aside, the reaching distance point. Do you want to defend the other distinction your making, which I take it is even if you lose on reaching distance, still Belton does not apply if the initial contact was made between the police and the... and the suspect outside the car?
Frank W. Dunham, Jr.: We... that is--
Stephen G. Breyer: You want to give up on that one.
Frank W. Dunham, Jr.: --No.
Stephen G. Breyer: Or you want to defend it?
Frank W. Dunham, Jr.: No, no.
Stephen G. Breyer: Then defend it.
Frank W. Dunham, Jr.: Our... the initiation of contact we believe is a... is a very reasonable test, and we believe it's called for by the Belton case itself. When you read... when you read Belton, it says it is a narrow... narrow... class of problematic recurring cases, and then it gives seven cases as examples of cases that fall within its class. And in every single one of those cases, with the possible... a marginal exception of one, the police are initiating contact with the man while he is an occupant of a vehicle. We--
Stephen G. Breyer: And that escalates the danger of the situation. I mean, why... what sensible regime would say, police officer, don't take the precaution of waiting to make the arrest till the person stops and gets out of the car? That way, police officer, you won't be in danger of the man grasping for a gun. Or suppose it's a case where the police want to follow that car and not signal because they want to find out where the crack house is that he's going to. So if they signal, they make initial contact, they give away the whole... the whole thing. They will not find the destination they're looking for. To... to say that Belton is okay but... in those situations the... the police would not have the possibility of within moments after the suspect exits the car arresting him and then doing a car search. It just doesn't seem to make any sense.
Frank W. Dunham, Jr.: --Well, Your Honor, if you... if you think about it, that most... the most dangerous situation for the police officer is when he initiates contact with the person while he's an... an occupant in an... of an automobile, but has not yet gotten up to the point where he can get him out and make an arrest. It's during that interval between the time that the officer initiates contact with the vehicle and the time when he actually makes a custodial arrest that the danger to the officer is at its greatest point.
Ruth Bader Ginsburg: Well, that's what... why I asked doesn't it make sense to say we're not going to initiate contact while he's in the vehicle, but the minute he gets out, we will arrest him.
Frank W. Dunham, Jr.: Because in most cases, Your Honor, the officer doesn't have a choice. You look at the case in New York v. Belton, I mean, he... the officer was a... was a State trooper pulling the man over on the highway. The... when... when you... and that's going to be the case most of the time. You're going to have a... a State trooper or somebody with lights on top of their car that are pulling somebody over, and they don't really have a choice. Or you've got undercover agents watching for the drug transaction to occur and then before the dealers drive off, they want to rush the car and make the arrest of the occupants. It... the... the officer frequently has no choice. And I like to think of it as when you turn on the light to pull the man over, you turn on Belton. Belton comes on when you turn on the red light to signal the man over. And what does it do for the officer? It immediately defines, for purposes of a bright line rule, who is an occupant. It not only defines who is an occupant, it defines who can become a recent occupant.
Anthony M. Kennedy: Why... why don't we save ourselves a lot of trouble and say that in almost all of these cases, the police have an interest in what happens to the vehicle, they're going to take it away anyway, so they might as well do the inventory search right away?
Frank W. Dunham, Jr.: Well, the... the Court has come close to entirely extinguishing any Fourth Amendment protection in a vehicle, and that kind of a decision would give it the final death knell. There would be no privacy left.
Anthony M. Kennedy: But, I mean, does it make a lot of sense if in most cases, which I... which I assume to be so... I may be wrong. In most cases, especially when the car is on a... on a street or in... in a... in a parking lot... it's not at the residence... they're going to have to tow that car and... and check it. They probably should make sure it's locked before they leave so that nothing will be taken from the car, et cetera.
Frank W. Dunham, Jr.: What you end up with, Your Honor, is when you combine that view with the Court's decisions in Atwater and Wren, you end up with the police stopping somebody in... in a parking lot, maybe a short distance away in a store because they've got a dead inspection sticker. But it's a pretext because the officer wants to search the car.
Anthony M. Kennedy: Well, no, my case... my case says there's been an arrest.
Frank W. Dunham, Jr.: Well, but the... the Court's decisions allow the arrest to be made on a minor traffic violation that doesn't carry anything more than a $200 fine on a pretext because the officer wants to search the car. He then... he makes the arrest on the... on that under... under Wren and Atwater. He then has the right to go search the entire vehicle.
John Paul Stevens: Well, my point... my point is I assume it happens anyway. Now, empirically I may be wrong. Then that's a different case. Well, it is clear, is it not... I... if I remember Belton, it is clear that the Belton rule applies to any arrest. It does not necessarily have to be an arrest in which they will impound the car. You could be caught for speeding. That's what they stopped him for in Belton. They were speeding. And so I think Justice Kennedy's hypothetical is not the facts of Belton.
Frank W. Dunham, Jr.: The... the fact is that... that Belton is an arrest. It doesn't require a towing or inventorying of the car. It is a... a classic search incident to arrest.
John Paul Stevens: And it not only allows search of the vehicle but of every container in the vehicle. So everybody who's caught speeding has his vehicle... everything in that vehicle is subject to search.
Frank W. Dunham, Jr.: If they're... if they are arrested, Justice Stevens. Many times--
John Paul Stevens: Correct.
Frank W. Dunham, Jr.: --people are just issued a citation. But if they're... if they're stopped, even for a bad traffic signal or not wearing a seat belt, they can be subjected to a custodial arrest and have their entire vehicle searched. And I think that's why it's... in drawing the lines here with respect to Belton, recognizing that the... that the arrestee is usually in the back of the squad car, and we're not here talking about officer safety issues... that we try to remain... retain some semblance of the Fourth Amendment with regard to automobiles.
William H. Rehnquist: The arrestee here, though, wasn't... wasn't in the back of the car, the back of the police car.
Frank W. Dunham, Jr.: Mr. Thornton was placed in the back of the police car before the search occurred, Your Honor. He was arrested--
William H. Rehnquist: Oh, after... after he was arrested you mean.
Frank W. Dunham, Jr.: --Arrested, but before the search, Your Honor. And that's Justice Ginsburg's point. Where is the danger to the officer when the arrestee is in the back of the squad car? And that is a fiction and it is a fiction that courts accept, that if the squad car drives off with the man and takes him back to the station house, then the right to search is gone, but as long as it's a contemporaneous part of an unfolding scene--
Sandra Day O'Connor: Who... who-- --Unless the police have a practice of trying to safeguard the vehicle since it... it could be claimed later by the person arrested, I had the Hope diamond in the back seat and you people hauled me off to jail, now you pay me for the Hope diamond. So, obviously, they want to inventory it. And I suppose virtually every police department has regular provisions to safeguard vehicles in those circumstances and do inventory searches. Don't they?
Frank W. Dunham, Jr.: --I... I assume most good police departments do, but in this--
Sandra Day O'Connor: So I don't see how we're furthered in our concerns by your approach.
Frank W. Dunham, Jr.: --Well, in this particular case, Your Honor, those inventory concerns were... were not addressed in... in the factual record. We believe we would win on the issue of inevitable discovery. The Fourth Circuit didn't address it. And moreover, you... frequently you're going to have an occupant arrested but that doesn't mean the vehicle is going to get towed.
Stephen G. Breyer: Why... why instead of complicating it... take Belton as a given. Sorry. Were you finished?
Frank W. Dunham, Jr.: I... I was just going to finish, Your Honor, by saying that the... that... that you might just arrest one occupant and you might let the other occupants go on. So you can't necessarily say that the vehicle is always going to be towed and is always going to be inventoried.
Stephen G. Breyer: I mean, would it... do you think it would work... or why wouldn't work... to try to control Belton by imposing limits on what's reasonable time and reasonable space so that you keep it really to a... an arrest that took place really when he was just within the car and not too far away unless it's his fault because he took off? All right. Now, you'd do that through a common law approach. The lower courts would make their decisions and occasionally we could review one to say it went too far one way or the other. That, it seems, is a... is a procedure for imposing limits on Belton that... that might work. Why wouldn't it?
Frank W. Dunham, Jr.: Well, Your Honor, as long as they're... they're more definite than words like recent or close proximity--
Stephen G. Breyer: No, no. You'd have to... you can't get... unfortunately, language is what it is, and... and sometimes efforts to make it clearer make matters worse. So one way to control, in the presence of vague language, is through example.
Frank W. Dunham, Jr.: --And I... that's what I thought the Court did in Belton was give examples. And if you follow the examples that were given in Belton, you don't approve the search that occurred with regard to Mr. Thornton, because if you're trying to draw a bright line, which is what you were trying to do in Belton, you have... some things fall on one side of that line and some things fall on the other. And we would... we would submit that once a person, on his own without any prompting from the police, becomes a pedestrian, he's no longer an occupant of a vehicle.
Stephen G. Breyer: How long after he got out of the car did the arrest take place?
Frank W. Dunham, Jr.: Moments.
Stephen G. Breyer: What are moments?
Frank W. Dunham, Jr.: Well, the... it seems like the entire time I've been standing here is moments because my life is going in front of my eyes. [Laughter]
Stephen G. Breyer: All right, and how far--
Frank W. Dunham, Jr.: But in... in any event, we would argue that the... that the search here was outside of Belton and we would also argue that you have a perfectly good 35-year-old precedent in Chimel. If Belton doesn't apply and you're on the other side of the Belton line, then you go to Chimel, and Chimel tells you what to do. Chimel wasn't limited to houses. It is the rule that the police use every single day when they effect a custodial arrest. No new rules. No new guidance. Just if Belton doesn't apply, go to Chimel. I'd like to save the rest of my time for rebuttal please.
William H. Rehnquist: --Very well, Mr. Dunham. Mr. Garre, we'll hear from you.
Gregory G. Garre: Thank you, Mr. Chief Justice, and may it please the Court: The sole contention advanced by petitioner on appeal was that the search of his car was not lawful under the rule of New York v. Belton because Officer Nichols did not succeed in initiating contact with him while he was still inside his car. The court of appeals correctly rejected that contention. To begin with, petitioner's initiation of contact rule has no foundation in the rationale of Belton. It is the fact of the arrest and not the reason that the person exited the car that gives rise to the justification for the Belton search. The custodial arrest is an extremely dangerous and volatile encounter for the officer in the field, and that's particularly true in the case of the arrest of a recent occupant of a vehicle. In Belton, this Court drew the generalization that when the recent occupant of a vehicle is arrested, that the inside of the vehicle is always within the area in which that occupant might try to... try to lunge in order to get a weapon to effect his escape or to grab evidence to conceal it or destroy it in the car. Now, the application of that generalization--
John Paul Stevens: May I just point out that the question presented in Belton defined it as an occupant of the vehicle?
Gregory G. Garre: --That's correct, Justice Stevens, but the Court did use the term recent occupant at page 460 of its decision.
John Paul Stevens: It also used occupant several times in the opinion.
Gregory G. Garre: That's true, and... and in describing the category of--
John Paul Stevens: And... and the examples that it gave, as your opponent indicated, all were... except one possible exception, all were occupants, weren't they, in... in the cases that Justice Stewart--
Gregory G. Garre: --No, Justice Stevens. I... I actually don't think that that's correct. I think the Frick case, which is discussed, listed with the cases discussed at page 459 of the decision, involved the situation where the police came upon the person in a parking lot, and in that situation... which was one of the cases that the Court identified as the disarray in the case law that existed before Belton. And that's a critical point for the Court to understand in weighing the... the petitioner's reaching distance argument here. This Court knows what the world is like in a reaching distance regime under Chimel and the important context in which the recent occupant of a car is arrested. As the Court mentioned in... in Belton, it's a world in which there's disarray and confusion in the case law, more litigation and more confusion for the officer in the field. The Court noted on page 460 of its decision in Belton that that kind of confusion was not helpful to the police who need clear rules for the scope of their authority in this context.
John Paul Stevens: --Yes, but if you emphasize the clarity... and that's what Justice Stewart did. He drafted what he thought was a very clear rule. If you limit it to occupants, isn't that equally clear as the rule you propose?
Gregory G. Garre: It's... it's artificial, Justice Stevens, and it's--
John Paul Stevens: Well, I agree it's artificial, but is it not equally clear?
Gregory G. Garre: --That is a clear--
John Paul Stevens: In fact, is it not more clear? Because I don't know when you stop being a recent occupant.
Gregory G. Garre: --Well, with respect, we think it's an artificial rule, and... and if I could--
John Paul Stevens: It is an artificial rule. We all agree with that, but what we're... what we're looking for is a clear artificial rule. That's the purpose of Belton.
Gregory G. Garre: --No. I... I think a rule which... which takes into account the justifications--
John Paul Stevens: Because the reason it's artificial is it explains that normally Chimel would control, and he said we want a special rule for... for arrests of occupants of cars. And that's what they did. And we... and they made it so you can search the entire vehicle. That's the other important part of Belton.
Gregory G. Garre: --But... but it--
John Paul Stevens: And the entire... all... all containers in the vehicle I mean.
Gregory G. Garre: --If I could respond in this way. First, the vast majority of arrests that take place in the Belton context, including in this case, including in Belton itself, take place after the person is already outside of the car.
John Paul Stevens: Yes, but the contact with the police is when they're occupants.
Gregory G. Garre: Well, that's true. And... and let me talk, if I could, about the artificiality of that rule and why we think it's not a rule that the Court should adopt.
John Paul Stevens: Well, I'm trying to get an answer to this question. I agree it's artificial. It's described in Belton as artificial. But the search in Belton was for the clearest rule available, and my suggestion to you is the rule of Belton, as... as described in Belton itself applying to occupants of the cars at the time of contact, is clearer than a rule defined by recent occupant because what is a recent occupant.
Gregory G. Garre: Well, let me answer both questions. I... I don't think that that is going to be a clearer rule than the rule that we're asking for in this case. And... and to respond to your second question as to what is a recent occupant, in our view it's someone who's just occupied the car. It's... it's the person in the vast majority of cases in which this question has arisen. In this case it was clear that Officer Nichols met petitioner moments after he exited the car, and that's going to be the situation in which this question has arisen and it can arise in a number of ways. In Michigan v. Long, the police--
John Paul Stevens: But would your rule apply to someone who was out of the car for 5 minutes?
Gregory G. Garre: --Well, the... the recency test that the Court... that we think the adopted or described in Belton is one that's tethered to the proximity of the automobile. And there are going to be line-drawing problems at the outer--
John Paul Stevens: Well, I'm trying to understand what your definition of recent is.
Gregory G. Garre: --It's... it's someone... it's the person who has gotten out of the car and who's in the same proximity to the car that he would have occupied if he had been ordered out.
John Paul Stevens: But is... in other words, geography is part of the time dimension of recency.
Gregory G. Garre: Well, and it is in a typical Belton case. If I could give the Court an example. The Federal Law Enforcement Training Center trains its officers that they should stop their police car within two to four lengths of the vehicle that they're stopping and to pull the person out of the car prior to the arrest. And this is... this is the way officers are trained to bring them back because of the inordinate risks that officers face in that situation. In this case, Officer Nichols intended to pull petitioner over. That's at page 16 of the J.A., but he didn't succeed in doing so because the petitioner pulled into a parking lot. And that's not an uncommon practice that... that suspects do if they... if they feel or sense that they're under surveillance by the police. And he got out of his car, and the record shows at page 11 of the J.A. that Officer Nichols got out at the same time and met him within moments. This is... this case we think has the hallmarks of the classic Belton encounter. Officer Nichols patted him down, found drugs on his person, and at that moment, placed him under arrest. The... the pat-down was a consensual search. That's... that's indicated at page 19 of the joint appendix, and at the moment that he placed petitioner under arrest who, after all, was a convicted felon who just had drugs on his person and who had a loaded semi-automatic gun--
David H. Souter: Why... why does that matter? We don't know that. The police don't know that. That doesn't figure into any calculus. Most people who get out of cars are not convicted felons bearing drugs.
Gregory G. Garre: --That's absolutely correct, Justice Souter, and that's an important aspect of the generalization that the Court drew in Belton and... and that underlies the search incident to arrest cases which is--
David H. Souter: No, but the... the point of Justice Stevens' question is why should we go beyond... strictly why should we go beyond the generalization in Belton? And the reason certainly cannot be that this particular guy had a record and had drugs.
Gregory G. Garre: --My... my point, Justice Souter, was that the officer safety justification for Belton is going to be squarely implicated regardless of the reason that the person got... got out of the car.
David H. Souter: No, but it seems to me that you get into... into deeper water if you say that because the... to me the incoherence of Belton is that it... it purports to be an application of Chimel with a bright line, but at the point at which the actual search is made, any danger to the officer is over. And so if... if you're going to try to justify a... a more flexible approach to Belton on grounds of the safety justification in Belton, I... I think you're... you're out over your head. And... and the force of Justice Stevens' question to me is this. Belton is not coherent with Chimel. Belton does not stand up as an analysis of anything other than we're going to have a simple bright line rule for cars and stop all of this litigation. But if Belton gave a bright line rule for cars, why is there a justification for making it less bright by going beyond the specific kinds of facts in Belton itself? That's the force of the question.
Gregory G. Garre: Sure. And... and we don't think it's going to be any less bright in the most common situation in which this question has arisen where police come upon the person right as he's... as he's exiting his car. Michigan v. Long is another example. That case was decided two terms after Belton. And in that case this Court indicated in dictum that Belton would apply in the situation where the police come upon the person after he's outside of the car.
David H. Souter: But is... is your criterion then going to be a time criterion, the recency of his exit from the car?
Gregory G. Garre: It's... it's going to have both... and the court of appeals emphasized it in this case at page--
David H. Souter: Well, is it time or is it space?
Gregory G. Garre: --It's both space and time and it's going to encompass a situation where the person has just gotten out of the car--
David H. Souter: So if... if I get out of my car and I run as fast as I can run for 15 seconds, and I get across the parking lot, that is very recent in time. Can... can you search my car then?
Gregory G. Garre: --Well, under the position that petitioner advances--
David H. Souter: No. I want your position. We want a bright line rule. If... if I... if I'm a sprinter and I get across the parking lot and it's 15 seconds, can they search the car?
Gregory G. Garre: --Justice Souter, as in the case of any Fourth Amendment case, there... there are going to be situations at the margin. I think if... if the person is racing away from the--
David H. Souter: No, but bright line rules are... are there to... to avoid marginal problems. What... what's the answer to my... my question?
Gregory G. Garre: --If the hypothetical is the person sees the police officer and races away from the car, the police officer arrests the person in the vicinity of the car, then no, I don't think it matters if he got 15 feet or 20 feet or 30 feet. If he gets a block away, then sure, it might matter. These are cases at the outer extreme or margin and aren't implicated by the commonly recurring fact pattern in which this case arises where the police meet the person in the same spot that he would have been if he had been ordered out of the car. And... and let me talk about the problems with line-drawing that the Court is going--
David H. Souter: What if he... what if he didn't see the police officer? He drives into the parking lot, gets out of his car, locks the car. He's 5 feet away and... and the police say, that's the guy I saw speeding on Main Street 10 minutes ago. What's... what's the answer there?
Gregory G. Garre: --Well--
David H. Souter: He's... he is in the spot he would have been if the police had arrested him or had apprehended him in the car and told him to get out. Can they search?
Gregory G. Garre: --Of course, there's something absent there which is the positive linkage. The police don't know that that person has just gotten out of the car. That... that case is a lot like the Frick case that the Court noted in Belton as one of the cases that it was trying to deal with when it came up.
David H. Souter: But if they see him... if--
Gregory G. Garre: I think the police--
David H. Souter: --if they see him get out of the car, can they then search in my hypo?
Gregory G. Garre: --I... I think in that situation where the person was arrested right by the car, we think that Belton probably would apply. But that's not the fact pattern initiated here. If... if I could just talk about the line-drawing problems that the Court is going to invite if it adopts petitioner's initiation of contact rule. The... the petitioner said today that... that the rule the Court ought to adopt if the light is on, then Belton is... is on. Well... well, that's going to create line-drawing problems. To take an example close to home, the... the police officers in the District of Columbia often drive around with white flashing lights on. Now, I'm not sure how the existence of those white flashing lights would come into play under petitioner's initiation of contact rule. Take the case that the Court had before it this fall, Arizona v. Gant, which was a case that presented the same issue, but the Court vacated and remanded it in light of the Arizona Supreme Court's decision which rejected the initiation of contact rule. In that case, the officer came upon the suspect and he shined a flight... shined a flashlight into the car which the suspect was still inside the car. The suspect got out of the car. The officer met him moments later, and yet the court of appeals in that case said that the police officer hadn't sufficiently initiated contact with the suspect while he was still in the car.
William H. Rehnquist: The Arizona Court of Appeal.
Gregory G. Garre: The Arizona Court of Appeals held in that case. That's correct, Mr. Chief Justice. And... and in describing that, the Court listed the number of different factors that would have to go into the calculus both from the standpoint of the officer on the scene and from a court later reviewing that determination as to whether the officer initiated contact. He'd have to take into account the lighting in the situation, how far the officer was the car when he... away from the car when he shined the flashlight into it, whether the person saw the flashlight, whether the person thought it was a police officer shining the flashlight or someone else, whether the person was aware that there was a police--
John Paul Stevens: Well, you said a little while ago there are cases on the fringe. Of course, you can always find one or two cases that present these difficult problems. But are... are you really contending that the rule of initiating contact is less bright than the rule you're proposing?
Gregory G. Garre: --Yes, we are. If... if the Court focuses--
John Paul Stevens: What if, for example, the... the officer saw a person speeding, he pulls into a gas station, he gets out, goes to the men's room and comes back out. Can he be... can you search his car?
Gregory G. Garre: --If... of course, that's... that's not the fact pattern here.
John Paul Stevens: No. I'm just not... I'm just wondering--
Gregory G. Garre: Yes, I think he probably would be able--
John Paul Stevens: --I'm wondering about the integrity of your statement that there's a real bright line rule there. And what do you do with my case?
Gregory G. Garre: --In... in that case where the person--
John Paul Stevens: He's... this... the officer saw him speeding but he didn't turn the light on. He followed him. The guy goes into a gas station, goes to the men's room, comes out 2 minutes later. Can you search his car?
Gregory G. Garre: --If the person comes out and is right next to the car in the place he would have been when he had been ordered out, yes, we think that... that Belton would apply in that situation. But... but the rule that we're asking the Court to adopt here is that on this fact pattern, which as the court of appeals we think correctly recognized has temporal and spatial limits, where the police see the person exit the car, confront him moments later, the application of the bright line rule in Belton shouldn't depend on the fortuity of whether the police initiate contact with that person beforehand. And that's particularly true in a case like this where Officer Nichols intended to pull the car over and... and yet didn't do so because the suspect did what suspects sometimes do, which is to pull over and get out in order to try to blend in. The... now, going back to the officer safety rationale, we think that is a justification for Belton and that it is implicated in this situation and that the initiation of contact rule would implicate officer safety in a number of ways. One is the surveillance situation that was mentioned during petitioner's argument and that the court of appeals mentioned in this case. In... in some cases, officers are engaged in surveillance activities and maybe determine that it's undesirable and unsafe to make contact with a suspect while he's still inside the car and so take the prudent step of waiting for the suspect to step out of the car before confronting him. The... the case out of Virginia, the Glasco case that's discussed in the brief, is an example of that. There's... there's also the... the possibility, which is recognized in the case law, that an initiation of the contact rule would have the effect of increasing the volatility of Belton encounters by creating a dynamic in which suspects had an incentive to race out of the car before police could... could initiate contact.
Anthony M. Kennedy: If the... if the suspect is handcuffed and is in the police cruiser, is there any danger to the officer at that point that can't be equally avoided by simply having an inventory search later?
Gregory G. Garre: There is danger, Justice Kennedy. I mean, first of all, on... on the handcuff--
Anthony M. Kennedy: Assume a single occupant.
Gregory G. Garre: --Right. There is danger. And we... we... and it's true in... in a stop and arrest like this case where there's a lone officer and a person who he arrests. And the... the deeply ingrained practice in this country is for the officer to put the... the suspect, arrestee, in the squad car and then go back and search the car. And... and we cite cases on page 38 of our brief where... where suspects have escaped from handcuffs and gotten out. And... and that danger is remote, but we think that it's still real as long as the suspect is at the scene of the arrest. All of the courts of appeals that we're aware that... that have considered this question and Professor LaFave who's... who's recognized that have concluded that Belton applies when the person is handcuffed in the back seat of the squad car. And of course, Justice Brennan in his dissent in Belton recognized--
Anthony M. Kennedy: I know it applies, but it's just not clear to me why an inventory search can never be, which... I have only one factual question here. Was this car locked before the police officer searched it? Did he need the key or do... do we know?
Gregory G. Garre: --The... I believe the answer to that is... is no because the record doesn't... what the record shows... and this is on page 50 of the J.A. I think... is that the officer arrested petitioner, put him in the car and then went back and searched the car. There's nothing in the record that suggests that the officer needed keys. But... but on the inventory search question, although it may be true in some cases that the inventory search inevitably would have led to the discovery of the contraband, in that sense the privacy interests of the person from a Belton search at the time are... are further diminished. The inventory search I don't think is an answer to the officer's safety concerns and justification for Belton, which are real as long as the person is still at the scene of the arrest. There is the remote risk that the person can escape and try to get back into the car. There's also the risk, as... as you mentioned I think, that there could be confederates in the area who might try to get into the car, either for a weapon or to get drugs out of the car or other contraband out of the car. Officers in... in the Belton stop, it's not uncommon for them to... to have the person out of the car, to secure him, and then it's only at that point that they... that they feel safe to go back to make sure that there's no one else in the car who could be hidden in the car or other things in the car. So I... so we don't think that the inventory search is an answer to the very real concerns that the officers face in conducting the Belton search and that provide the rationale for the Belton search. I wanted to just go back briefly to the Court's decision in Michigan v. Long. And although it is dictum in that case on the application of... of Belton, we do think that it's... it's persuasive dictum. In that case the police officers saw a car swerve off the road, and they... they came around back to investigate. The petitioner... or... or the suspect in that case, the individual who was driving the car, was already outside of the car when the police came back. And... and the Court in that case made quite clear in dictum that if the... if the suspect in that case had been arrested, that the search of his car would have been perfectly lawful under Belton. And we think that that was... that is a persuasive and a correct understanding of Belton. If I could... I wanted to make clear too that we think that this case does bear the... the hallmarks of a classic Belton encounter. The only difference is... is that Officer Nichols did not succeed in initiating contact before the suspect got... got out the car, but Officer--
Ruth Bader Ginsburg: Would he have to at least see the suspect in the car or would it be all right under the rule you're proposing where the police that come upon the scene just after the suspect exits from the car?
Gregory G. Garre: --Well, we think that the... the most important thing for the Court to hold in this case... that we would ask the Court to hold in this case is in the commonly recurring situation where police see the person exit the car and confront him moments later in the same vicinity that he might have occupied if he had been ordered out of the car, that it doesn't make a difference for the purposes of applying Belton as to whether or not the police succeeded in initiating contact or succeeded in initiating contact in a sufficient way. There may be... there are going to be other cases that arise, and... and we don't think that this is an area in which the Court should try to establish a rule which is tethered to a particular distance or... or a particular amount of time. These are... this is an extremely dangerous encounter for police. This is an area in which police need to make judgments. This Court recognized in the Lagovista case--
John Paul Stevens: It seems to me your argument is that we don't want a bright line rule. We want a... a facts and circumstances rule and take everything into account, which is sort of... Justice Scalia often speaks of those rules with some disparaging terms. [Laughter]
Gregory G. Garre: --No. That... that's not what we're asking for, and I'm sorry if I... if I misled the Court. We're asking the Court to apply the generalization that it adopted in Belton. The... the reaching distance rule that petitioner has alternatively asked for would just eviscerate Belton and put courts and police officers back in the situation that they occupied before Belton in trying to apply Chimel in... in the recurring and dangerous context of an automobile stop. The Court recognized in Belton on page 59 of its decision that that... the Chimel analysis had... had provided to be... shown to be unworkable in this context and... and had created litigation for the courts and uncertainty for the police officers. So we're asking the Court to... to stick to that bright line.
William H. Rehnquist: Justice Stewart wrote both Chimel and Belton, did he not?
Gregory G. Garre: That's absolutely correct, Mr. Chief Justice. On the handcuffing in the squad car, I... I did want to make clear on that point that that argument was not raised by petitioner below, and... and the court of appeals noted that at page 74, note 2 of the joint appendix. It's not pressed by petitioner in this Court. I think petitioner's reply brief makes that clear on page 16.
Stephen G. Breyer: What do the police departments normally tell the policemen? What do they say? They say, when you arrest a person who just got out of a car, you can search the car?
Gregory G. Garre: In terms of... of... I... I can tell you what the practice is at the Federal Law Enforcement Training Center. And... and that practice is you... is... is to take the... the person outside of the car, ordinarily away from the car back towards the police--
Stephen G. Breyer: No. I'm not... I'm not asking the practice. I'm asking... the virtue of Belton is supposed to be it's simple. Explain it to a policeman. So I want to know how do they explain it. I thought perhaps they explain it by saying, policeman, if you arrest a person who's just got out of a car, you can search the car.
Gregory G. Garre: --That's... that's correct, Justice Breyer.
Stephen G. Breyer: All right. Then if that's... then there has to be some kind of limit on just got out of.
Gregory G. Garre: And... and if it's--
Stephen G. Breyer: So... so inevitably we're in the business of trying to say what's just got out of. Is it a minute? Is it 2 minutes? Is it 5 minutes? There's no way to avoid that, is there?
Gregory G. Garre: --No. There's not at the outer margins, but... but the Court--
Stephen G. Breyer: All right. So what in your opinion is the outer margin?
Gregory G. Garre: --Well, let me... let me say affirmatively that this case we think places a proper temporal--
Stephen G. Breyer: This is well within it.
Gregory G. Garre: --and spatial limits on it where it's clear that the person--
Stephen G. Breyer: And you'd say certainly a day is too long I imagine.
Gregory G. Garre: --Of course.
Stephen G. Breyer: Yes.
Gregory G. Garre: That's correct. I think if the Court were to hold in this case that Belton applies in this situation where the police confront the person just after he gets out of the car, that is going to provide a guidance to the police officers. And that's going to tell them they don't need to undertake this additional fact-specific analysis as to whether the person got out of the car of their own volition or an initiation of contact.
Stephen G. Breyer: Then perhaps we could use words like just got out of.
Gregory G. Garre: Or within moments. And... and I think--
Stephen G. Breyer: Seconds?
Gregory G. Garre: --Seconds would be fine. But... but no.
Anthony M. Kennedy: And what about in this--
Gregory G. Garre: I don't--
Anthony M. Kennedy: --what about in this... this is a serious question. What about if he's just about to get into it?
Gregory G. Garre: --Well, and... and that's... that's a different fact pattern that has arisen. We think Belton would apply in that situation, and police we think have reasonably concluded that and courts have reasonably concluded that. But... but that's not the question here. And the most important question for the Court to answer, which is the situation where the police do see the person get out of the car and do confront him moments later. The... the States... a number of States have filed an amicus brief in this case supporting the Government's position and... and urging against adoption of an initiation of contact rule. And... and we do think it's significant that each of the States and jurisdictions that have adopted the initiation of contact rule, States like Florida and... and Illinois and Michigan, have signed that brief and urged the Court to reject the initiation of contact rule. We think that that rule is unworkable. It's shown to be unworkable in cases like Gant v. Arizona. There are other cases in which added wrinkles have been applied to the rule. There's a Florida case, which is not discussed in the briefs, but it is publicly reported. It's Kavallierakis v. State, 790 S. 2d 1201. In that case, the courts in Florida, applying the initiation of contact rule, concluded that in order to trigger Belton, the contact had to be of a confrontational nature and not of a friendly nature, so that in that case, the courts reversed a conviction for possession of drugs found in a car because the police officer met the person with a greeting while he was getting out of the car as opposed to a confrontational signal such as a... as a siren or a light. Now, that... that seems like an extreme application of that rule, but it's nevertheless indicative of... of the variations in the line-drawing that can arise and that have arisen. In this case we think that the court of appeals properly held that Belton apply. The record conclusively shows that petitioner was a recent occupant of the car and the search was contemporaneous with the... the arrest, and we would ask the Court to affirm the judgment of the court of appeals.
William H. Rehnquist: Thank you, Mr. Garre. Mr. Dunham, you have 4 minutes remaining.
Frank W. Dunham, Jr.: I have four brief points, Your Honor, that I'd like to make, if I could. The first is that the State court opinion in Michigan v. Long, People v.... People v. Long, shows that the car there was being chased by the police. They just weren't observing him drive by at a high rate of speed and crash into a ditch. They were in a high-speed chase, and it's reasonable to infer that they had their lights on and therefore had initiated contact. Furthermore, the State court opinion in People v. Long shows that Long was in the vehicle when the officers got out of their car, after he had crashed into the ditch, and began to approach the vehicle. Then Long exited his vehicle and walked towards the officers. So I don't think it's... it's fair to say that there was no initiation of contact by the officers with Long in the Long case and that the footnote in the Long opinion referencing to Belton is no expansion or further brightening of the Belton rule. Second, I want to point out that the Frick case, which is the one possible exception that I think Justice Stevens referred to when he was talking about the cases that Belton points to as defining its class... the man is either getting into or getting out of his vehicle. He has not... he has not achieved the status of pedestrian. Most people... I think you could still consider someone who was in the act of either getting in or getting out... you could call that person an occupant. Third, if you... the Fourth Circuit did not adopt Mr. Garre's place where he would have occupied if he had been arrested test. We call... that's the Government's might have test. But Mr. Garre would add that to what the Fourth Circuit rule and would have him... and... and would add a limit that, oh, as long as he's arrested where he might have been if he might have been arrested, if we'd stopped him when he was getting out of his car. It seems to me that that is an unworkable rule and it just adds further confusion to the situation. Yet, it's necessary, necessary because it's the only way you avoid reversing Chimel. Now, the... the other point I want to make is Justice O'Connor I think made a good point about the inventory search. Why can't we draw Belton narrowly because in 90 percent of the cases, we're going to have an inventory search anyway? And why can't we maintain some semblance of Fourth Amendment protection in automobiles? And finally, with regard to the handcuffs point, Mr. Garre's point that people sometimes get out of their handcuffs, I'd simply like to say if we indulge in the presumption that suspects are going to get out of their handcuffs, there's simply no search incident to arrest rule that we can fashion that doesn't just have us searching everyplace on God's green earth.
John Paul Stevens: May I ask you a question--
Frank W. Dunham, Jr.: Yes.
John Paul Stevens: --if your time is up? In your experience, does an inventory search include the right to search containers in the... in the car? Belton, of course, gives the... the Government the big advantage. You can search every container in the car.
Frank W. Dunham, Jr.: I believe an inventory search does not allow you to search opaque containers within the car.
William H. Rehnquist: Thank you, Mr. Dunham. The case is submitted.
Speaker: The honorable court is now adjourned until Monday next at ten o'clock.