[ Rehnquist ]
[ OConnor ]
[ Scalia ]
[ Stevens ]
MARCUS THORNTON, PETITIONER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
[May 24, 2004]
Justice Scalia, with whom Justice Ginsburg joins, concurring in the judgment.
In Chimel v. California,
395 U.S. 752,
762763 (1969), we held that a search incident to arrest
was justified only as a means to find weapons the arrestee
might use or evidence he might conceal or destroy. We
accordingly limited such searches to the area within the
When petitioners car was searched in this case, he was neither in, nor anywhere near, the passenger compartment of his vehicle. Rather, he was handcuffed and secured in the back of the officers squad car. The risk that he would nevertheless grab a weapon or evidentiary ite[m] from his car was remote in the extreme. The Courts effort to apply our current doctrine to this search stretches it beyond its breaking point, and for that reason I cannot join the Courts opinion.
I see three reasons why the search in this case might have been justified to protect officer safety or prevent concealment or destruction of evidence. None ultimately persuades me.
The first is that, despite being handcuffed and secured in the back of a squad car, petitioner might have escaped and retrieved a weapon or evidence from his vehiclea theory that calls to mind Judge Goldbergs reference to the mythical arrestee possessed of the skill of Houdini and the strength of Hercules. United States v. Frick, 490 F.2d 666, 673 (CA5 1973) (opinion concurring in part and dissenting in part). The United States, endeavoring to ground this seemingly speculative fear in reality, points to a total of seven instances over the past 13 years in which state or federal officers were attacked with weapons by handcuffed or formerly handcuffed arrestees. Brief for United States 3839, and n. 12. These instances do not, however, justify the search authority claimed. Three involved arrestees who retrieved weapons concealed on their own person. See United States v. Sanders, 994 F.2d 200, 210, n. 60 (CA5 1993) (two instances); U.S. Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 49 (2001). Three more involved arrestees who seized a weapon from the arresting officer. See Sanders, supra, at 210, n. 60 (two instances); U.S. Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 49 (1998). Authority to search the arrestees own person is beyond question; and of course no search could prevent seizure of the officers gun. Only one of the seven instances involved a handcuffed arrestee who escaped from a squad car to retrieve a weapon from somewhere else: In Plakas v. Drinski, 19 F.3d 1143, 11441146 (CA7 1994), the suspect jumped out of the squad car and ran through a forest to a house, where (still in handcuffs) he struck an officer on the wrist with a fireplace poker before ultimately being shot dead.
Of course, the Government need not document specific instances in order to justify measures that avoid obvious risks. But the risk here is far from obvious, and in a context as frequently recurring as roadside arrests, the Governments inability to come up with even a single example of a handcuffed arrestees retrieval of arms or evidence from his vehicle undermines its claims. The risk that a suspect handcuffed in the back of a squad car might escape and recover a weapon from his vehicle is surely no greater than the risk that a suspect handcuffed in his residence might escape and recover a weapon from the next rooma danger we held insufficient to justify a search in Chimel, supra, at 763.
The second defense of the search in
this case is that, since the officer could have conducted the
search at the time of arrest (when the suspect was still near
the car), he should not be penalized for having taken the
sensible precaution of securing the suspect in the squad car
first. As one Court of Appeals put it:
The third defense of the search is
that, even though the arrestee posed no risk here,
Belton searches in general are reasonable, and the
benefits of a bright-line rule justify upholding that small
minority of searches that, on their particular facts, are not
reasonable. The validity of this argument rests on the
accuracy of Beltons claim that the passenger
compartment is in fact generally, even if not
inevitably, within the suspects immediate control.
453 U.S., at 460. By the United States own admission,
however, [t]he practice of restraining an arrestee on the
scene before searching a car that he just occupied is so
prevalent that holding that Belton does not apply in
that setting would
largely render Belton a
The popularity of the practice is not hard to fathom. If Belton entitles an officer to search a vehicle upon arresting the driver despite having taken measures that eliminate any danger, what rational officer would not take those measures? Cf. Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 Wis. L. Rev. 657, 665666 (citing police training materials). If it was ever true that the passenger compartment is in fact generally, even if not inevitably, within the arrestees immediate control at the time of the search, 453 U.S., at 460, it certainly is not true today. As one judge has put it: [I]n 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 during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find. McLaughlin, supra, at 894 (Trott, J., concurring). I agree entirely with that assessment.
If Belton searches are justifiable, it is not because the arrestee might grab a weapon or evidentiary item from his car, but simply because the car might contain evidence relevant to the crime for which he was arrested. This more general sort of evidence-gathering search is not without antecedent. For example, in United States v. Rabinowitz, 339 U.S. 56 (1950), we upheld a search of the suspects place of business after he was arrested there. We did not restrict the officers search authority to the area into which [the] arrestee might reach in order to grab a weapon or evidentiary ite[m], Chimel, 395 U.S., at 763, and we did not justify the search as a means to prevent concealment or destruction of evidence.1 Rather, we relied on a more general interest in gathering evidence relevant to the crime for which the suspect had been arrested. See 339 U.S., at 6064; see also Harris v. United States, 331 U.S. 145, 151152 (1947); Marron v. United States, 275 U.S. 192, 199 (1927); Agnello v. United States, 269 U.S. 20, 30 (1925); cf. Weeks v. United States, 232 U.S. 383, 392 (1914).
Numerous earlier authorities support this approach, referring to the general interest in gathering evidence related to the crime of arrest with no mention of the more specific interest in preventing its concealment or destruction. See United States v. Wilson, 163 F. 338, 340, 343 (CC SDNY 1908); Smith v. Jerome, 47 Misc. 22, 2324, 93 N. Y. S. 202, 202203 (1905); Thornton v. State, 117 Wis. 338, 346347, 93 N. W. 1107, 1110 (1903); Ex parte Hurn, 92 Ala. 102, 112, 9 So. 515, 519520 (1891); Thatcher v. Weeks, 79 Me. 547, 548549, 11 A. 599, 599600 (1887); 1 F. Wharton, Criminal Procedure §97, pp. 136137 (J. Kerr 10th ed. 1918); 1 J. Bishop, Criminal Procedure §211, p. 127 (2d ed. 1872); cf. Spalding v. Preston, 21 Vt. 9, 15 (1848) (seizure authority); Queen v. Frost, 9 Car. & P. 129, 131134 (1839) (same); King v. Kinsey, 7 Car. & P. 447 (1836) (same); King v. ODonnell, 7 Car. & P. 138 (1835) (same); King v. Barnett, 3 Car. & P. 600, 601 (1829) (same). Bishops 1872 articulation is typical:
The officer who arrests a man on a criminal charge should consider the nature of the charge; and, if he finds about the prisoners person, or otherwise in his possession, either goods or moneys which there is reason to believe are connected with the supposed crime as its fruits, or as the instruments with which it was committed, or as directly furnishing evidence relating to the transaction, he may take the same, and hold them to be disposed of as the court may direct. Bishop, supra, §211, at 127.
Only in the years leading up to Chimel did we start consistently referring to the narrower interest in frustrating concealment or destruction of evidence. See Sibron v. New York, 392 U.S. 40, 67 (1968); Preston v. United States, 376 U.S. 364, 367 (1964).
There is nothing irrational about broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested. The fact of prior lawful arrest distinguishes the arrestee from society at large, and distinguishes a search for evidence of his crime from general rummaging. Moreover, it is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended.
Nevertheless, Chimels narrower focus on concealment or destruction of evidence also has historical support. See Holker v. Hennessey, 141 Mo. 527, 539540, 42 S. W. 1090, 1093 (1897); Dillon v. OBrien, 16 Cox C. C. 245, 250 (Ex. Div. Ire. 1887); Reifsnyder v. Lee, 44 Iowa 101, 103 (1876); S. Welch, Essay on the Office of Constable 17 (1758).2 And some of the authorities supporting the broader rule address only searches of the arrestees person, as to which Chimels limitation might fairly be implicit. Moreover, carried to its logical end, the broader rule is hard to reconcile with the influential case of Entick v. Carrington, 19 How. St. Tr. 1029, 1031, 10631074 (C. P. 1765) (disapproving search of plaintiffs private papers under general warrant, despite arrest). But cf. Dillon, supra, at 250251 (distinguishing Entick); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 303304 (1967).
In short, both Rabinowitz and Chimel are plausible accounts of what the Constitution requires, and neither is so persuasive as to justify departing from settled law. But if we are going to continue to allow Belton searches on stare decisis grounds, we should at least be honest about why we are doing so. Belton cannot reasonably be explained as a mere application of Chimel. Rather, it is a return to the broader sort of search incident to arrest that we allowed before Chimellimited, of course, to searches of motor vehicles, a category of effects which give rise to a reduced expectation of privacy, see Wyoming v. Houghton, 526 U.S. 295, 303 (1999), and heightened law enforcement needs, see id., at 304; Rabinowitz, 339 U.S., at 73 (Frankfurter, J., dissenting).
Recasting Belton in these terms would have at least one important practical consequence. In United States v. Robinson, 414 U.S. 218, 235 (1973), we held that authority to search an arrestees person does not depend on the actual presence of one of Chimels two rationales in the particular case; rather, the fact of arrest alone justifies the search. That holding stands in contrast to Rabinowitz, where we did not treat the fact of arrest alone as sufficient, but upheld the search only after noting that it was not general or exploratory for whatever might be turned up but reflected a reasonable belief that evidence would be found. 339 U.S., at 6263; see also Smith, supra, at 24, 93 N. Y. S., at 203 (This right and duty of search and seizure extend, however, only to articles which furnish evidence against the accused); cf. Barnett, supra, at 601 (seizure authority limited to relevant evidence); Bishop, supra, §211, at 127 (officer should consider the nature of the charge before searching). The two different rules make sense: When officer safety or imminent evidence concealment or destruction is at issue, officers should not have to make fine judgments in the heat of the moment. But in the context of a general evidence-gathering search, the state interests that might justify any overbreadth are far less compelling. A motorist may be arrested for a wide variety of offenses; in many cases, there is no reasonable basis to believe relevant evidence might be found in the car. See Atwater v. Lago Vista, 532 U.S. 318, 323324 (2001); cf. Knowles v. Iowa, 525 U.S. 113, 118 (1998). I would therefore limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.
In this case, as in Belton, petitioner was lawfully arrested for a drug offense. It was reasonable for Officer Nichols to believe that further contraband or similar evidence relevant to the crime for which he had been arrested might be found in the vehicle from which he had just alighted and which was still within his vicinity at the time of arrest. I would affirm the decision below on that ground.3
1. We did characterize the entire office as under the defendants immediate control, 339 U.S., at 61, but we used the term in a broader sense than the one it acquired in Chimel. Compare 339 U.S., at 61, with 395 U.S., at 763.
2. Chimels officer-safety rationale has its own pedigree. See Thornton v. State, 117 Wis. 338, 346347, 93 N. W. 1107, 1110 (1903); Ex parte Hurn, 92 Ala. 102, 112, 9 So. 515, 519520 (1891); Closson v. Morrison, 47 N. H. 482, 484485 (1867); Leigh v. Cole, 6 Cox C. C. 329, 332 (Oxford Cir. 1853); Welch, Essay on the Office of Constable, at 17.
3. The Court asserts that my opinion goes beyond the scope of the question presented, citing this Courts Rule 14.1(a). Ante, at 8, n. 4. That Rule, however, does not constrain our authority to reach issues presented by the case, see Vance v. Terrazas, 444 U.S. 252, 259, n. 5 (1980); Tennessee Student Assistance Corp. v. Hood, 541 U.S. ___, ___ (2004) (slip op., at 1), and in any event does not apply when the issue is necessary to an intelligent resolution of the question presented, see Ohio v. Robinette, 519 U.S. 33, 38 (1996).