SCALIA, J., CONCURRING IN JUDGMENT
THORNTON V. UNITED STATES
541 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 03-5165
MARCUS THORNTON, PETITIONER
v. UNITED
STATES
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, 762–763
(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 suspect’s “ ‘immediate
control’ ”—
i.e., “the area into which an arrestee
might reach in order to grab a weapon or evidentiary ite[m].”
Id., at 763. In
New York v.
Belton, 453 U. S. 454, 460
(1981), we set forth a bright-line rule for arrests of automobile
occupants, holding that, because the vehicle’s entire passenger
compartment is “in fact generally, even if not inevitably,” within
the arrestee’s immediate control, a search of the whole compartment
is justified in every case.
When petitioner’s 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 officer’s squad car. The risk that he would
nevertheless “grab a weapon or evidentiary ite[m]” from his car was
remote in the extreme. The Court’s effort to apply our current
doctrine to this search stretches it beyond its breaking point, and
for that reason I cannot join the Court’s opinion.
I
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 vehicle—a
theory that calls to mind Judge Goldberg’s 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 38–39, 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 arrestee’s own person is beyond question;
and of course no search could prevent seizure of the officer’s 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,
1144–1146 (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 Government’s
inability to come up with even a single example of a handcuffed
arrestee’s 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 room—a 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: “ ‘[I]t does not make sense to prescribe a
constitutional test that is entirely at odds with safe and sensible
police procedures.’ ”
United States v.
Mitchell, 82 F. 3d 146, 152 (CA7 1996) (quoting
United States v.
Karlin, 852 F. 2d 968, 971
(CA7 1988)); see also
United States v.
Wesley,
293 F. 3d 541, 548–549 (CADC 2002). The weakness of this
argument is that it assumes that, one way or another, the search
must take place. But conducting a
Chimel search is not the
Government’s right; it is an exception—justified by necessity—to a
rule that would otherwise render the search unlawful. If “sensible
police procedures” require that suspects be handcuffed and put in
squad cars, then police should handcuff suspects, put them in squad
cars, and not conduct the search. Indeed, if an officer leaves a
suspect unrestrained nearby just to manufacture authority to
search, one could argue that the search is unreasonable
precisely because the dangerous conditions justifying it
existed only by virtue of the officer’s failure to follow sensible
procedures.
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
Belton’s claim that the passenger
compartment is “in fact generally, even if not inevitably,” within
the suspect’s 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 dead
letter.’ ” Brief for United States 36–37 (quoting
Wesley,
supra, at 548). Reported cases involving
this precise factual scenario—a motorist handcuffed and secured in
the back of a squad car when the search takes place—are legion.
See,
e.g.,
United States v.
Doward, 41
F. 3d 789, 791 (CA1 1994);
United States v.
White, 871 F. 2d 41, 44 (CA6 1989);
Mitchell,
supra, at 152;
United States
v.
Snook, 88 F. 3d 605, 606 (CA8 1996);
United
States v.
McLaughlin, 170 F. 3d 889, 890 (CA9
1999);
United States v.
Humphrey, 208 F. 3d
1190, 1202 (CA10 2000);
Wesley,
supra, at 544;
see also 3 W. LaFave, Search and Seizure §7.1(c), pp. 448–449, n.
79 (3d ed. 1996 and Supp. 2004) (citing cases). Some courts uphold
such searches even when the squad car carrying the handcuffed
arrestee has already left the scene. See,
e.g.,
McLaughlin,
supra, at 890–891 (upholding search
because only five minutes had elapsed since squad car left).
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, 665–666 (citing police training materials). If it
was ever true that the passenger compartment is “in fact generally,
even if not inevitably,” within the arrestee’s 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.
II
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 suspect’s 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.[
Footnote 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 60–64; see also
Harris v.
United States, 331 U. S. 145, 151–152
(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, 23–24, 93 N. Y. S. 202, 202–203 (1905);
Thornton v.
State, 117 Wis. 338, 346–347, 93
N. W. 1107, 1110 (1903);
Ex parte Hurn, 92 Ala. 102,
112, 9 So. 515, 519–520 (1891);
Thatcher v.
Weeks, 79 Me. 547, 548–549, 11 A. 599, 599–600 (1887); 1
F. Wharton, Criminal Procedure §97, pp. 136–137 (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, 131–134 (1839) (same);
King v.
Kinsey, 7
Car. & P. 447 (1836) (same);
King v.
O’Donnell, 7 Car. & P. 138 (1835) (same);
King v.
Barnett, 3 Car. & P. 600, 601 (1829)
(same). Bishop’s 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 prisoner’s 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,
Chimel’s narrower focus
on concealment or destruction of evidence also has historical
support. See
Holker v.
Hennessey, 141 Mo. 527,
539–540, 42 S. W. 1090, 1093 (1897);
Dillon v.
O’Brien, 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).[
Footnote 2] And some of the authorities
supporting the broader rule address only searches of the arrestee’s
person, as to which
Chimel’s 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,
1063–1074 (C. P. 1765) (disapproving search of plaintiff’s
private papers under general warrant, despite arrest). But cf.
Dillon,
supra, at 250–251 (distinguishing
Entick);
Warden, Md. Penitentiary v.
Hayden, 387 U. S. 294, 303–304
(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
Chimel—limited, 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 arrestee’s person does
not depend on the actual presence of one of
Chimel’s 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 62–63; 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, 323–324
(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.[
Footnote 3]
Footnote 1
We did characterize the entire office as
under the defendant’s “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.
Footnote 2
Chimel’s officer-safety rationale
has its own pedigree. See
Thornton v.
State, 117
Wis. 338, 346–347, 93 N. W. 1107, 1110 (1903);
Ex parte
Hurn, 92 Ala. 102, 112, 9 So. 515, 519–520 (1891);
Closson v.
Morrison, 47 N. H. 482, 484–485
(1867);
Leigh v.
Cole, 6 Cox C. C. 329, 332
(Oxford Cir. 1853); Welch, Essay on the Office of Constable, at
17.
Footnote 3
The Court asserts that my opinion goes beyond
the scope of the question presented, citing this Court’s 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).
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