Florida v. Thomas – Oral Argument – April 25, 2001

Media for Florida v. Thomas

Audio Transcription for Opinion Announcement – June 04, 2001 in Florida v. Thomas

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William H. Rehnquist:

We’ll hear argument next in Number 00-391, Florida v. Thomas.

Mr. Krauss.

Robert J. Krauss:

Mr. Chief Justice, and may it please the Court:

The Florida supreme court, based on the facts before it, added an unreasonable and unwarranted condition to this Court’s holding in New York v. Belton.

The Florida supreme court has determined that it is improper to conduct a Belton search unless the police initiate contact with the arrestee while he is still in the automobile, or he exited at the direction of the police.

The facts of this case are very simple.

Mr. Thomas drove his vehicle into the driveway of a residence of a home at which drug arrests were being effected at the time.

Mr. Thomas exited his vehicle, walked around the car, and was at the rear right, near the trunk, when Detective Maney stopped him.

Detective Maney asked Mr. Thomas for his name and for his driver’s license.

An immediate check of that driver’s license was run, and it came back outstanding.

John Paul Stevens:

May I ask… I forget the facts a little bit.

Did the officer go into the house and come back out before he arrested him?

Robert J. Krauss:

Detective Maney had been in the house.

John Paul Stevens:

After the man, after the defendant drove into the driveway and got out, did the officer, before he arrested him, go into the house and come back out?

Robert J. Krauss:

I don’t… do not believe so, Your Honor.

John Paul Stevens:

You don’t?

Antonin Scalia:

He arrested him and then went into the house.

Robert J. Krauss:

That is correct.

Antonin Scalia:

He arrested him, handcuffed him, took him into the house–

Robert J. Krauss:

Absolutely.

Antonin Scalia:

–and then came back and examined the car.

Robert J. Krauss:

Yes, sir, within 5 minutes of… this whole entire episode took 5 minutes from when–

And do you say that Belton allows the person outside the car to be taken away, secured, removed, and then the officers can go back and search the car?

Robert J. Krauss:

–Yes, we do, Your Honor, for–

Sandra Day O’Connor:

Wasn’t one of the stated objectives of the Belton rule to protect officers from the person connected with the car from reaching in and getting weapons or damaging the officer?

Robert J. Krauss:

–We would submit, Your Honor, that the ability to effect valid arrest arises at the moment of that arrest.

At the time of arrest, Mr. Thomas was right by the car.

Quite frankly–

Sandra Day O’Connor:

But the search of the vehicle came later.

Is there some temporal or spatial limitation to the Belton rule, or do you say there’s no such limitations?

Robert J. Krauss:

–No.

No, there obviously is a limitation at some point, but certainly this case is not one of them.

This was–

Sandra Day O’Connor:

This might be, if you take the person away.

Robert J. Krauss:

–Well–

Anthony M. Kennedy:

How do we express that limitation?

Could he come back a day later?

Robert J. Krauss:

–No.

No, Your Honor.

Anthony M. Kennedy:

All right, so what’s the general principle that expresses the temporal limitation in Justice O’Connor’s inquiry?

Robert J. Krauss:

This was part of one ongoing transaction.

There were no–

David H. Souter:

Well, it may have been part of one ongoing transaction, but it… that does not, I think, affect the fact that the moment of the search seems to have been totally untethered from the justifications for the Belton rule because, as I understand it, at the time the search was made, the defendant was in the house.

The defendant couldn’t reach into the car for weapons or for evidence.

There was nobody else with the defendant still in the car who could have done so, so that it seems to me the justification for the Belton rule has vanished, totally, in this situation.

Robert J. Krauss:

–Justice Souter, we submit that the arrest, at the time of the arrest, that is when the ability to search arises.

What the Court is–

David H. Souter:

Well, if that’s going to be your justification, I don’t see how you can put any limitation on it at all, because there was just as much an arrest 24 hours later, or 48 hours later.

There was just as much an arrest as if he had been 3 miles away, or 30 miles away, and on your reasoning that the moment of arrest is the only operative moment here, then they could search 2 days later, and they could search 30 miles away.

Robert J. Krauss:

–No, Your Honor.

As I stated, there has to… it has to be part of a continuing course of arrest.

It’s an arrest scenario, and it should not be broken up.

David H. Souter:

But I don’t see why continuing course of arrest has any relevance except in relation to the preservation of evidence that he might otherwise destroy, or the possibility of a weapon that he might have used to hurt the officer, and when each of those possibility, possibilities has been definitively negated, what is left of Belton?

Robert J. Krauss:

Well, because at the time of the arrest, Mr. Thomas, or any similarly situated defendant is at the car, and therefore he is within reach, immediate reach of the vehicle.

It is almost–

David H. Souter:

And so I can understand, under the Belton rule, that they could search then, but they didn’t.

Robert J. Krauss:

–Well, they did–

David H. Souter:

And when they did, he wasn’t within immediate reach of the vehicle.

Robert J. Krauss:

–That’s correct.

It’s near unanimous in all the Federal circuits and most of the States, as we’ve provided in the briefs, that even if a suspect is handcuffed and led away from the scene, and sometimes often placed in a police vehicle himself, that a Belton search is still permissible.

Stephen G. Breyer:

Why?

Why is that, because it says in Belton… it says as a contemporaneous… as a contemporaneous–

Robert J. Krauss:

As a contemporaneous–

Stephen G. Breyer:

–of that arrest.

Robert J. Krauss:

–Yes, sir.

Stephen G. Breyer:

So… and Belton is extrapolated and explained in Chimel, so can you… in Chimel you can search the room when you arrest somebody who’s in the house, so under Chimel, can you arrest a person in the house, take him down to the police station, and go back and search the room?

Robert J. Krauss:

Not necessarily, because there may be too much of an intervening time.

Stephen G. Breyer:

So why isn’t the–

Robert J. Krauss:

What the Court–

Stephen G. Breyer:

–key word, contemporaneous, just what everybody’s been saying?

Robert J. Krauss:

–What the Court’s suggesting, if I may, is that the police should have to make a choice right at that moment when they effect the arrest, either do I search the car, because I know I have the right to do so, or should I take steps to secure the defendant at the scene, so as… so you have two–

Sandra Day O’Connor:

Well, presumably the police could secure the car and go get a warrant to search it, couldn’t they?

Robert J. Krauss:

–They could, Your Honor, and there are different fact patterns that emerge.

We’re… I… we are presupposing that there’s one defendant involved.

A lot of these cases involve–

Sandra Day O’Connor:

Well, we’re talking about this case.

Robert J. Krauss:

–Yes, Your Honor.

Sandra Day O’Connor:

And the court below thought it turned on whether the person stayed in the car, or exited on his own.

Robert J. Krauss:

That is correct.

Sandra Day O’Connor:

Now, I’m not sure that Belton had much to do with that distinction.

Robert J. Krauss:

Agreed.

Sandra Day O’Connor:

But there may well be other limitations of space and time–

Robert J. Krauss:

There may be, Your Honor.

There’s… and I think we’ve certainly conceded that in our brief, that certain searches will be taken without–

William H. Rehnquist:

–Well, certainly the whole basis of the Fourth Amendment is reasonableness–

Robert J. Krauss:

–Absolutely.

William H. Rehnquist:

–and you would have to… whatever the interval would be, it would have to be reasonable under the Fourth Amendment.

Robert J. Krauss:

Yes, Your Honor.

It would certainly… if we’re talking about the contemporaneous requirement, certainly it would have to be, and that’s why I suggest that, especially in this case, where it was one flowing, fluid arrest scenario, where Mr. Thomas was placed under arrest right when he was by the car, and that is when the need to either preserve evidence or exhibit concern for officer safety arises, at that moment.

Ruth Bader Ginsburg:

Why… Mr. Krauss, he’s in the house with handcuffs, so any concern about his destroying evidence or getting a weapon is attenuated, but the need with respect, even to the car… isn’t it ordinarily the case that if you arrest a person, and there’s the car out there on the street, the car will be impounded, and there will be an inventory inspection, and there will turn up the same thing that this turned up on the scene, so why do the police, once they’ve gotten the driver out of it, have to search on the spot, instead of going through the lawful procedure of getting the inventory–

Robert J. Krauss:

I respectfully submit to you, Justice Ginsburg, that in this case the State could not have conducted an inventory search.

First of all, the vehicle was not even Mr. Thomas’.

Second of all, it was already parked in the driveway.

It did not pose any safety hazards, say, that Colorado v.–

Ruth Bader Ginsburg:

–It made a difference that he was parked in the driveway, rather than on the street.

Robert J. Krauss:

–And I also have concern because, even though there were several people that were arrested in the house, Mr. Thomas’ sister was not, and there’s nothing that could have said that she couldn’t have moved… if it was necessary to move the car, that she couldn’t have been the one to move it, and if she has an ability to remove it, she obviously has the ability to get any weapons or destroy any evidence that was in the car also.

Antonin Scalia:

Why shouldn’t… under Belton, why shouldn’t a policeman be put to the choice?

You can protect yourself the Belton way, do an immediate search while the arrested person is still nearby the car, and possibly able to dive in and get a gun, or, if you want to play it really safe, handcuff him and take him back to the police cruiser.

Robert J. Krauss:

Because I–

Antonin Scalia:

But if you do the latter, you’ve assured your safety, and there’s no basis for conducting a search.

Robert J. Krauss:

–Because I don’t necessarily believe that in the volatile and dangerous situation that is the arrest, that we have to give the police these types of choices to make.

The… especially–

Antonin Scalia:

Why?

That’s not a hard choice.

Assure your safety.

If you can handcuff him and lead him to the car, you’re safe.

Robert J. Krauss:

–But I don’t know that the officer would want to make the wrong choice at that point.

Antonin Scalia:

What you’re saying is, you think the officer wants to be able to search the car.

Robert J. Krauss:

No, Your Honor.

I think the officer has the constitutional right to search the car, because he arrested someone who was in proximity to the car at the time of the arrest.

Anthony M. Kennedy:

Well, he does or he doesn’t, depending, perhaps, on what we decide in this case.

[Laughter]

Robert J. Krauss:

And I will submit that that’s why the Court accepted this case, yes.

Anthony M. Kennedy:

Just… following Justice Scalia, if the justification for Chimel, or Chimel–

Robert J. Krauss:

Yes.

Anthony M. Kennedy:

–is that you must protect the officer, and the defendant, or the suspect is in the patrol car in handcuffs, what justification is there left, other than protecting the public safety by inventory searches and so forth?

Robert J. Krauss:

I think those are very valid justifications, and–

Anthony M. Kennedy:

Well, but under Chimel itself, it seems to me that the rationale has now disappeared.

Robert J. Krauss:

–Well, Chimel… Belton was created just so the police don’t have to make these case by case determinations as to what the area to search is, so… and I do come back to the quote in U.S. v. Robinson, where the very fact of arrest alone is enough to justify the search, and it’s the same situation in a Belton search.

I would further submit that at least via dicta, this Court has recognized the point of law we are advancing today in Michigan v. Long.

Robert J. Krauss:

It was assumed in a footnote that had the suspect in that case been arrested for speeding or driving along intoxicated, that a valid Belton search could be effected–

William H. Rehnquist:

Mr. Krauss–

Robert J. Krauss:

–and that’s what we have here.

Mr.–

William H. Rehnquist:

–Mr. Krauss, what exactly was done with Mr. Thomas, when he was taken into the… he had driven up in the driveway.

He was taken into the house, and what happened?

Robert J. Krauss:

–He was taken–

William H. Rehnquist:

Does the record show?

Robert J. Krauss:

–There were other officers in the house at the time, because they had been effecting some drug arrests at the time.

They brought Mr. Thomas in there for safekeeping, not unlike the common situation that’s assumed in these cases, where a suspect is handcuffed and placed in the patrol car.

As we have stated, the need to do the search arises at the time that he is arrested in the proximity of the car.

William H. Rehnquist:

So he was taken into the house, handcuffed, and then the officer came out.

Robert J. Krauss:

Immediately thereafter.

The entire procedure, from when Mr. Thomas exited his car, the warrant was checked, and he was taken into the house, and then the officer came back and completed the search, all within five minutes.

Anthony M. Kennedy:

Do the cases talk about whether there’s a possibility that persons other than the arrested person might go into the car, i.e., there might have been somebody in the house that would have gone in and got the gun?

Do our cases talk about that in the context of the Chimel rule, or is there some other rule?

Robert J. Krauss:

As far as other–

Anthony M. Kennedy:

Some other line of cases.

Robert J. Krauss:

–I’m not aware of any, Your Honor.

Anthony M. Kennedy:

So you think that the Chimel rule may apply as well to protect the officer from other persons who might grab a weapon, or destroy–

Robert J. Krauss:

No.

I think when you’re at the scene and you’re dealing with vehicles, there are different interests involved.

We are dealing with an automobile versus a home.

There are certainly further protections in a home, and when you’re in a situation on the street, where anything can happen, it’s a volatile situation, there may be other codefendants or other confederates mulling about, the ability for the police to protect themselves is paramount.

Anthony M. Kennedy:

–Well, so that… so that, then, do you agree that under the Chimel rule, a search can be made to protect the officer not just against the contingency of the arrested person grabbing a weapon, but of other persons?

Robert J. Krauss:

Yes, but it does not–

Anthony M. Kennedy:

I mean, I’m trying to help you, and you seem to be resisting.

[Laughter]

Robert J. Krauss:

–The Chimel rule helps, but I want to make it clear that Chimel is limited to the immediate area of control, whereas Belton is a little more expansive, in that you have defined what that area is, and I think that is a little more expansive, and I am saying that Belton would assist the officer in that type of situation if there are others in the area, absolutely.

Ruth Bader Ginsburg:

Mr. Krauss, there’s another distinction, another unusual feature of this case, in addition to the defendant being removed from the scene.

Ruth Bader Ginsburg:

That is, in Belton the man was speeding, I think.

In all the other cases that I know of, there was a stop because of a traffic violation, and here, the car wasn’t implicated in the justification for the arrest at all.

He wasn’t doing anything wrong with the car.

The car is totally apart from… the justification for the arrest is the probation violation.

Robert J. Krauss:

Agreed, Your Honor, and we would submit that there is no nexus, as the Court is suggesting.

No nexus is necessary.

For authority for that proposition, we would rely on United States v. Robinson, where–

John Paul Stevens:

May I ask… excuse me.

Are you not finished with your answer?

I didn’t mean to interrupt you, if you hadn’t finished your answer.

Robert J. Krauss:

–I–

Ruth Bader Ginsburg:

He said there was no nexus requirement.

John Paul Stevens:

May I ask, do you think at the time, after the man was arrested, there was probable cause to search the car?

Robert J. Krauss:

–No, definitely not.

This officer had no suspicions, and I’ll be even further candid with the Court.

If Mr. Thomas had said, no, I’m not going to give you my name or license, the officer candidly said, I couldn’t have done anything about it, so those are the facts that we’re dealing with.

If the Court has no objection, I’d like to reserve the rest of my time.

William H. Rehnquist:

Very well, Mr. Krauss.

Mr. Garre, we’ll hear from you.

Gregory G. Garre:

Thank you, Mr. Chief Justice, and may it please the Court:

When an individual is arrested alongside the car that he has just occupied, the rule of New York v. Belton permits the police to search the car incident to the arrest.

In our view, that is true regardless of the reason that the suspect got out of the car before the arrest.

The Florida supreme court’s contrary ruling in this case should be reversed for three reasons.

First, it compromises officer safety in the dangerous and recurring context of vehicle side arrests.

Second, it needlessly complicates–

John Paul Stevens:

Let me just ask you about that, taking one at a time.

What was the particular threat to the officer after the man was in the house and under… in the custody of the police?

Gregory G. Garre:

–I’d like to make one thing clear on that at the outset.

Respondent has never challenged the search in this case on the ground that it was not contemporaneous with the arrest.

That was not a basis for any of the decisions below.

Gregory G. Garre:

It’s not within the question presented by petitioner.

John Paul Stevens:

I’m not sure that responds to my question.

Gregory G. Garre:

Absolutely.

We cite statistics in our brief, I believe it’s on page 22, where people who are handcuffed and on the scene do continue to pose a danger to the police.

We think that with respect to the question–

John Paul Stevens:

The danger was totally unrelated to the car, wasn’t it, because he was in the house.

Gregory G. Garre:

–The danger was related to the fact of the arrest, and that’s what justifies the search under the Belton doctrine as well under the search incident to arrest doctrine.

When someone is placed under arrest, he immediately has an increased incentive to get to a weapon that may be nearby, or get to evidence that may be nearby.

Sandra Day O’Connor:

Yes, but after the person has been removed… arrested and handcuffed and removed from the scene, put in a house, what’s left of Belton to justify the officer going back to the car and making a search?

Gregory G. Garre:

Well, first of all, I think it’s important for the Court to recognize that this case is a little bit unusual in that the person was put into a house.

In the more typical Belton situation–

Sandra Day O’Connor:

Well, but do you mind answering the question that I asked?

So it’s unusual.

Gregory G. Garre:

–Belton–

Sandra Day O’Connor:

But what is left of the Belton justification for going back to the car and making a search later?

Gregory G. Garre:

–The justification for the search is provided by the arrest.

Belton requires that the search be a contemporaneous incident to the arrest, and we think in a situation like this, where the search and the arrest are plainly part of the same process, where only five minutes separates the arrest from the search… the officer on this scene had a choice.

When he arrested the respondent at the car, he was by himself outside.

He had a choice of leaving the respondent unattended by the car as he searched the car, or he had the choice of bringing the respondent into the house, which, although the record is a little bit unclear on this, it suggests it was only about 20 feet away, where other officers were, and where other people were after drug arrests had been made in that house.

We think that the Constitution and the Fourth Amendment gives the officer in Officer Maney’s position the leeway to make that choice, and if the Court were to adopt a different regime, it would be inviting all the sorts of line drawing, case by case determinations that it sought to foreclose in Belton with respect to the initial just–

John Paul Stevens:

Well, I wonder if your view doesn’t require new line drawing where we’ve gotten the line already drawn in Belton.

Gregory G. Garre:

–With respect–

John Paul Stevens:

I mean, you say 5 minutes.

What about 10 minutes, 15 minutes–

Gregory G. Garre:

–Well, we–

John Paul Stevens:

–2 hours?

Gregory G. Garre:

–Sure.

We know from cases like Preston and Dyke that where the person is taken off the scene, he’s in the police station, his car’s removed from the scene, that that’s not substantially contemporaneous under the–

Stephen G. Breyer:

Well, so if he’s taken off the scene, why isn’t the scene where the policeman, the police car, and the car are all there together, but what isn’t the scene is a house?

Gregory G. Garre:

–Well–

Stephen G. Breyer:

I mean, that would be like common sense.

When you arrest somebody in a car, a house, inside the house anyway, isn’t the scene.

Gregory G. Garre:

–We think the scene in this case would include the house.

The respondent drove up to a house where drug related arrests were being made.

He parked in the driveway right outside the house.

He’s on the–

Anthony M. Kennedy:

Would the policemen have gone in under a different circumstance?

Let’s assume there were no policemen in the house yet.

After he arrested him outside of the car, could he go in and search the house?

Gregory G. Garre:

–No.

The Belton rule is limited to the vehicle.

We’re not asking–

Anthony M. Kennedy:

So once you’ve searched the car, you can’t go in the house, but once you’re in the house, you can go out and search the car.

That’s the rule?

Gregory G. Garre:

–With respect, no.

The rule is that once the officer has a justification for the search, the search must be contemporaneous with the arrest, and we think that that requirement is met, as every court of appeals of which we are aware has held that it has been met where the search and the arrest are part of the same process, one continuous event.

David H. Souter:

Is there anything in any of those cases that’s comparable to taking him out of the car and putting him in a house?

Gregory G. Garre:

Well, every case is comparable in that the officer typically puts the suspect in the squad car.

David H. Souter:

In the squad car.

Gregory G. Garre:

Which–

David H. Souter:

I gave you the squad car.

I said, the squad car is part of the scene.

I’m saying, is there anything in the cases that’s comparable to the house?

Gregory G. Garre:

–No, and we think that that case is unusual in that respect, but we would urge the Court to keep very much in mind the much… very typical case in which the suspect is in the squad car, and in that situation it’s clear that we think that the search would be contemporaneous with the arrest, and again, to remind the Court, that issue we don’t believe is before the Court in this case.

The issue–

Stephen G. Breyer:

Is there jurisdiction, then, here, because in fact there is a problem they haven’t passed definitively in Florida on the question of whether the evidence should be suppressed, and your side has two more arguments to make, or one, and the other side has one.

One is the house, and the other one is whether Chimel would justify it.

Gregory G. Garre:

–Well, we think that the–

Stephen G. Breyer:

We don’t have a final judgment either on the suppression point.

Gregory G. Garre:

–We think that there is jurisdiction.

Gregory G. Garre:

We think that the Belton issue has been finally decided, and the way it’s been decided is based on the proposition on which this Court granted certiorari, which is whether or not the application of the Belton rule depends on initiation of contact with the suspect in the car, and there are situations where police come upon a suspect after he’s gotten out of the car.

Michigan v. Long, which was decided just a year after this Court’s decision in Belton, is that type of situations.

Police may be conducting surveillance activities.

They may choose that for their own safety it’s not wise to initiate contact while the person’s in the car.

The supreme court, the Florida supreme court’s rule in this case is, it compromises officer safety, because it requires–

Ruth Bader Ginsburg:

Going back to the finality, which you went over very quickly, is that enough that this issue has been to Florida, it’s not going to redesign the Belton issue?

Is that enough to make a State judgment final for purposes of this Court’s review?

Gregory G. Garre:

–That may not be enough in itself, but that, coupled with the fact that if the State were to prevail on remand, the Belton issue would be lost, the State of Florida and officers in Florida would be governed by the Florida supreme court’s erroneous interpretation of Belton in this case–

Ruth Bader Ginsburg:

Do you have a similar Fourth Amendment case where we treated the judgment as final for purposes of our review?

Gregory G. Garre:

–We’ve cited cases that are interlocutory in the respect that they come up on a suppression motion, New York v. Quarles in our brief.

This case, we believe it’s very important for this Court to decide the Federal question presented.

If the State did lose… did prevail on remand, that issue would be lost.

We think that there’s a compelling Federal interest in this Court setting the Florida supreme court straight on the proper application of Belton, that the application of that rule does not depend on a requirement that the officer initiate contact with the suspect while he’s still in the car.

William H. Rehnquist:

And that doesn’t depend on any 5-minute interval, I take it?

Gregory G. Garre:

That issue was never raised by the respondent in this case, and we don’t believe it’s within the question presented.

It’s not even within the question formulated by the respondent in the opposition brief.

If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Garre.

Ms. Dodge, we’ll hear from you.

Cynthia J. Dodge:

Mr. Chief Justice, and may it please the Court:

The facts in this case are very, very different from the facts confronting the officer in Belton.

In Belton, the officer stopped a car for speeding on a busy Thruway.

It was the New York Thruway.

The officer was confronted with four individuals.

When he approached the car, he smelled the odor of burnt marijuana, and he looked inside, and saw an envelope marked Super Gold.

That envelope he immediately recognized as being associated with marijuana.

Therefore, he had probable cause to believe not only that these four passengers were in possession of marijuana, but that they had used marijuana because of the burnt marijuana smoke.

He ordered the passengers out of the car and placed them under arrest.

He did not handcuff them, either because he could not, because there were four of them, or because he chose not to do so.

What he did to protect himself was merely to separate them on the Thruway.

Cynthia J. Dodge:

He separated them so that they could not touch each other, being in reaching distance of each other, and this was one officer without backup, and he was confronted with four individuals.

With the–

Sandra Day O’Connor:

Well, you don’t think Belton’s limited to an arrest of four people, surely?

Cynthia J. Dodge:

–No, certainly not.

Sandra Day O’Connor:

So what does that have to do with this, and why does the reason for the person arrested leaving the car make a difference for Belton?

What difference could it possibly make that the person arrested here voluntarily got out of the car, as opposed to being ordered out?

Cynthia J. Dodge:

It makes a difference with regard to the fact that Mr. Thomas didn’t suspect that the officer wanted to make contact with him, so he did not have an incentive to grab any weapons or destroy evidence, because the officer was merely there, and he hadn’t signaled his desire to make contact with Mr. Thomas at the time.

David H. Souter:

No, but Belton would apply even if the individual was standing outside the car.

He might not have any weapon on him, he might not have any evidence on him, but if, in the course of the interview with the officer, he thought it was in his interest to leap back into the car, or grab into the car and get a gun, or get some evidence that he could swallow, or something of that sort, the… that was the justification for Belton, and I would suppose that that would be the justification, even if the individual had himself voluntarily gotten out of the car.

Cynthia J. Dodge:

Perhaps so.

However,–

David H. Souter:

Well, if that is so, then the Florida distinction really cannot be sustained.

Cynthia J. Dodge:

–The way I see it is that once a person gets out of the car on his own, without the prompting from the officer or without initiating contact, he’s outside of the car, and the regular considerations of Chimel control.

In other words, what this contact rule does is, it doesn’t say to the officer, you’re not allowed ever to search the car.

If you feel as though the person is within actual grabbing area, in other words, if you are overwhelmed, if the door is open–

William H. Rehnquist:

But Ms. Dodge, one of the virtues of Belton, as stated in its opinion, is that it was a bright line rule, without all these nuances that you’re adding to it.

Do you think that the nuances… and certainly they are adopted by the supreme court of Florida in its opinion… are really consistent with that sort of a bright line rule?

Cynthia J. Dodge:

–Yes, I think they are, because when you look at Belton itself, Belton allows the search of an occupant’s vehicle pursuant to arrest.

When you get to a consideration of who is a recent occupant, then your bright line evaporates, because the… on page 5 of the blue brief, petitioner proposes a rule.

If a valid custodial arrest of an occupant or recent occupant of a motor vehicle has been effected–

William H. Rehnquist:

Well–

Cynthia J. Dodge:

–a contemporaneous search is allowed.

William H. Rehnquist:

–there are always lines to be drawn in Fourth Amendment cases, but in this case, certainly, Mr. Thomas was about as recent an occupant as there could have been, other than someone who simply stayed in the car.

Cynthia J. Dodge:

Yes, Your Honor, he was a recent occupant.

However–

William H. Rehnquist:

In Belton the people were no more than recent occupants.

They didn’t remain in the car.

Cynthia J. Dodge:

–Correct.

However, what the Florida Supreme Court has done is drafted a bright line definition of the term, occupant.

So in other words, once you get… someone has left the car–

Sandra Day O’Connor:

Well, they probably erred in drawing that line.

I mean, I don’t see any justification at all in this Court’s cases, and certainly not in Belton, for the line the Florida court drew.

Cynthia J. Dodge:

–No.

What I think that they saw was that there was… they made a rule that in essence dovetails with the rule in Belton.

It sees that there is a problem in that there’s no definition of who is an occupant, and it’s very hard to determine who is a recent occupant, because of the fact that, you know, somebody could distance themselves very quickly from a car.

They could also have gone into a convenience store, or into a supermarket.

Anthony M. Kennedy:

Well, as I understand the Florida rule, correct me if I’m wrong, but the policeman puts the siren on, stops the car, and the man runs out of the car and goes and talks to the policeman.

Cynthia J. Dodge:

His car–

Anthony M. Kennedy:

In… as I understand the rule, the police have no justification for searching the car under Chimel… maybe under an inventory… but under Chimel, the justification for the search evaporates, correct?

Cynthia J. Dodge:

–Correct.

Anthony M. Kennedy:

That’s a silly rule, because number 1, it encourages everybody to jump out of their car.

Cynthia J. Dodge:

Correct, and the Florida rule eliminates that possibility.

Once the officer signaled contact, the person could jump and run as far as he wants, and that car is… it can be searched.

So in other words, if it were a knowledgeable subject it would be a disincentive to distance yourself, because not only that, you might get a charge for fleeing and eluding.

You’re running out of the car, but that car is always subject to search once that officer has put on those lights, has put on the siren, has announced over a loudspeaker that he wishes confrontation, has shouted, hey you, sir.

It covers even when an officer wishes to initiate a consensual encounter.

Stephen G. Breyer:

So what?

That is to say, I’m having a hard time seeing how a person… I mean, I read Belton, and I don’t understand how the Supreme Court of Florida, having read it, could come to its conclusion.

What Belton says, in exact language is, it says, as a custodial arrest of the occupant, as a contemporaneous incident of that arrest, you may search the passenger compartment, and then to make clear what they’re talking about, they say, we’re asking when police may search inside the automobile after the arrestee is no longer in it, all right.

Now, I read, after the arrestee is no longer in it, you may search the passenger compartment as a contemporaneous incident of the arrest.

That’s what the language says, so now, where does this distinction come from–

Cynthia J. Dodge:

The court–

Stephen G. Breyer:

–the distinction as to whether the person voluntarily got out of the car, after there was eye contact, before there was eye contact?

Where does that come from?

Cynthia J. Dodge:

–The court believed that Mr. Thomas was no longer an occupant.

Stephen G. Breyer:

The person… they’re talking about people who are no longer occupants.

Belton says it’s talking about a person after the arrestee is no longer in it.

Cynthia J. Dodge:

Yes.

Stephen G. Breyer:

And, of course, the person in Belton was no longer in it.

Cynthia J. Dodge:

Yes.

Cynthia J. Dodge:

He had been removed from the car by the officer in order to, number 1, effectuate the arrest.

It would be very difficult to search a car with four people in it, or even one person in it.

It would be impractical to do so.

Not only that, I think it would be very dangerous to tell a person who is still in control of the accelerator, the steering wheel, and the key, you are under arrest.

I think that that might be an invitation to get run over, so it might be a good idea to wait and say, would you please get out of the car, and now that he has some modicum of control over this individual, because in Mimms face to face confrontation reduces the danger, then say, sir, I am placing you under arrest.

Ruth Bader Ginsburg:

Ms. Dodge, your stress on confrontation, or at least signaling, leaves out the case where the police are tailing someone because they think they will be led to the crack house, and they deliberately do not want to confront or signal, so in your argument, I take it, someone in that situation would not come within the Belton rule, because the police hadn’t signaled, is that right?

Cynthia J. Dodge:

Yes, Your Honor.

That person would not come under the automatic Belton rule.

In other words, the person is distancing themselves from the car.

However, if there is probable cause to believe that that person is going to the crack house and is carrying contraband, then the car could be searched pursuant to the automobile exception, so it would be a decision… the officer in that case might want to search that car.

He might desperately want to do so, to see what’s in it, but it doesn’t equate with the necessity to do so to protect himself or to protect any evidence that someone might grab during an arrest process that occurs as the person has distanced himself from the car.

Ruth Bader Ginsburg:

So you are supporting the Florida rule about, is it confrontation or signal, but you’re not stressing… you don’t put any weight on the absence of a nexus here, that this, unlike the Belton line of cases, did not involve a traffic violation?

Cynthia J. Dodge:

Correct.

I don’t think it necessarily has to be a nexus, for example, if an officer were following a car, he knew the occupant’s identity, and he knew for sure that there had been a warrant issued for the arrest, he would be stopping for the warrant and not for a traffic violation, so that there would not be, necessarily, a nexus, other than the fact that the person is in the car at the time that he is actually apprehended, or the officer’s pursuing him.

What this does… and I believe the Florida courts have never considered the Chimel aspects, or Chimel aspects of this case.

They’ve never decided whether or not the passenger compartment and all of the closed containers, the glove box, the pocket on the side of the door were still within the actual grabbing area of Mr. Thomas.

In fact, the record is rather sparse with regard to the facts.

We know that the door was closed.

However, we don’t know whether or not the door was locked.

We know that Mr. Thomas was in the company of at least three or four narcotics agents who were in the house finishing up the arrests of the residents, so what we’re saying is, this case isn’t really finished.

It was remanded back to the trial court to determine whether or not the officer could have searched the car under Chimel, or Chimel.

Stephen G. Breyer:

Is there evidence in the case against him, aside from the drugs they received, any significant evidence?

In other words, if you win your suppression motion, is… as a practical matter, is that the end of this case?

Cynthia J. Dodge:

Yes, it is.

Stephen G. Breyer:

All right.

Cynthia J. Dodge:

There was nothing found on his person.

Stephen G. Breyer:

All right.

Well then, this, as a practical matter, it’s over.

Cynthia J. Dodge:

Yes, sir.

Stephen G. Breyer:

It’s either… because you’ll win the Chimel issue, I would think.

Cynthia J. Dodge:

I–

Stephen G. Breyer:

If he was in the house, I don’t see he’s going to grab the–

Cynthia J. Dodge:

–I would hope so.

Stephen G. Breyer:

–All right.

Cynthia J. Dodge:

Well, we believe that the contact rule is a reasonable rule, even though it does… it does, admittedly, it expands Belton, but it’s reasonable, because the officer starts the person’s thought processes, adrenaline going the minute he starts saying, you know, I would like to have contact with you.

There are officers on the street everywhere.

Not any of them is a threat to an individual unless the officer is in pursuit of that individual, or has somehow put him on notice that there’s going to be some kind of confrontation.

So I think it’s a good balance to be struck between the privacy rights of an individual in a vehicle and in his containers, because Belton does… it does cover containers therein, very personal items.

That would be purses, brief cases, anything that’s in the console, any decorations or mail that you might happen to be carrying from the post office… if you picked it up at your post office box, that might be carried in your car… and so it’s a good rule that protects both the officers and the individual’s right to privacy.

If there are no other questions–

William H. Rehnquist:

Thank you, Ms. Dodge.

Mr. Krauss, you have 4 minutes remaining.

Robert J. Krauss:

Thank you, Your Honor.

I just want to address very briefly the jurisdictional issue that Justice Breyer raised.

It would be our point that, first of all, what the Supreme Court of Florida has done has remanded to determine whether the Chimel factors exist.

That is a question of fact.

No matter how that is determined below, the question of law that has been decided, the question of Fourth Amendment interpretation made by the Florida Supreme Court limiting this Court’s Belton holding is going to survive, and we therefore submit that this Court certainly has jurisdiction.

It’s the final decision of the highest court in the State, and it will not be modified.

Lastly, I would just like to point out, at pages 31 and 32 of respondent’s brief, they make a statement that the danger arises to the officer at the moment that contact is made with the arrestee.

Well, in this case, as in many cases that we’ve cited, that danger arises regardless of the reason.

Therefore, if the arrestee voluntarily exits, it makes no… there is no constitutional distinction.

Thank you.

William H. Rehnquist:

Thank you, Mr. Krauss.

The case is submitted.