The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Stephanie Spring CHAMBERLAIN, Defendant-Appellee.
No. 09SA124.
Supreme Court of Colorado, En Banc.
May 10, 2010.
229 P.3d 1054
But even if the Gant Court adopted a Terry-like reasonable suspicion requirement, as the majority suggests, the facts of this case would meet it. As noted above, the Court used Thornton as an example of a case that would meet its evidence-gathering standard. In Thornton, the officer asked the defendant, who was away from his vehicle, if he had illegal drugs “on him or in his vehicle.” 541 U.S. at 618, 124 S.Ct. 2127. The defendant answered no. The officer then asked him if he could pat him down, and the defendant agreed. After the officer “felt a bulge” in defendant‘s front pocket, the officer again asked him if he had illegal drugs “on him.” Id. At this point, the defendant admitted that illegal drugs were on his person, pulled them out of his pocket, was arrested, and his vehicle searched. Id. The facts of this case mirror those of Thornton; according to the majority, the defendant, who was away from his vehicle, admitted that he possessed drug paraphernalia on his person, produced it for the officer, was arrested, and his vehicle searched. Maj. op. at 1042-43. If Thornton meets the Gant standard, this case does as well.
Importantly, under my reading of Gant, there undoubtedly will be offenses for which a common sense “reasonable to believe” conclusiоn cannot be made based merely on the nature of the offense, and where particularized consideration of the circumstances surrounding the arrest will be necessary. See, e.g., Megginson v. United States, — U.S. —, 129 S.Ct. 1982, 173 L.Ed.2d 1288 (2009) (Alito, J., dissenting from denial of certiorari) (noting that the case “present[ed] an important question regarding thе meaning and specificity of the reasonable suspicion requirement in Gant” where defendant was arrested on a warrant for threatening to kill his wife). But this case does not present such a scenario. In my view, we should simply conclude that, under Gant, because defendant was arrested for a drug offense, it was reasonable to believe that evidence of that offense might be found in his vehicle, and that therefore the search of his vehicle was consistent with the
III.
Because I would find that the good-faith exception to the exclusionary rule applies in this case, and because I beliеve the search conducted was consistent with Gant, I respectfully dissent from the majority‘s opinion.
Pete Hautzinger, District Attorney, Twenty-First Judicial District, Mark Scarr, Deputy District Attorney, Grand Junction, Colorado, Attorneys for Plaintiff-Appellant.
Douglas K. Wilson, Public Defender, Jody McGuirk, Deputy State Public Defender, Grand Junction, Colorado, Attorneys for Defendant-Appellee.
The People brought an interlocutory appeal pursuant to
I.
After the discovery of a small amount of drugs and a glass pipe in Stephanie Chamberlain‘s vehicle, she was charged with possession of one gram or less of methamphetamine and possession of drug paraphernalia. She subsequently moved to suppress the items seized from her vehicle as the product of an illegal search. After a hearing on that motion and after further аrgument on a motion to reconsider, the district court made the following relevant findings.
On December 20, 2008, an officer saw the defendant‘s car inadequately signal before turning into a gas station and approached her as she stood by the fuel pumps with her approximately eight-year-old child still in thе car. Upon request, she gave the officer her driver‘s license, registration, and proof of insurance, and when prompted, she indicated that she had been living at a different address from the one listed on her license since the end of November. After a check of her driver‘s license аnd subsequent call to another officer revealed that she had been ticketed for another traffic offense less than two weeks earlier and that she had provided the ticketing officer from that offense with the old address on her driver‘s license, the defendant was arrested for false rеporting, handcuffed, and placed in a patrol car. Officers then searched the passenger compartment of the defendant‘s car and found a glass pipe and a baggie containing less than a gram of methamphetamine.
The district court initially found that the evidence retrieved from the passenger compartment of the defendant‘s vehicle was lawfully seized pursuant to a search incident to arrest, and it therefore denied the motion to suppress. Following release of the United States Supreme Court‘s opinion in Arizona v. Gant, — U.S. —, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the court entertained a motion to reсonsider and reversed its earlier ruling. Applying its understanding of the holding in Gant, the district court found, in
The People immediately filed an interlocutory appeal in this court pursuant to
II.
In Arizona v. Gant, the Supreme Court revisited its jurisprudence concerning the search of vehicles incident to the arrest of a recent occupant. Although it acknowledged that the hоlding of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), had been widely understood to permit a search of the passenger compartment of a vehicle whenever a recent occupant was arrested, regardless of the likelihood that he might actually be able to access the vehicle, the five-member majority rejected this interpretation. Instead it reasoned that this reading of Belton would “untether the rule from the justifications underlying the Chimel2 exception—a result clearly incompatible with our statement in Belton that ‘it in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.‘” Gant, — U.S. at —, 129 S.Ct. at 1719 (quoting Belton, 453 U.S. at 460 n. 3). It therefore held “that the Chimel rationale authorizes рolice to search a vehicle incident to a recent occupant‘s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Id. (emphasis added).
Although the outcome in Belton would be justified by even the narrower rule of decision articulated by thе Gant majority, largely because the sole arresting officer in Belton had been unable to adequately secure the four occupants of the vehicle, the same could not be said of Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004). In Thornton the defendant was already handcuffed inside a patrol car before any search of his vehicle took place. 541 U.S. at 618, 124 S.Ct. 2127. Explicitly relying on Justice Scalia‘s cоncurring opinion in Thornton, however, the majority explained the outcome of that case as resting on the likelihood that additional evidence of the crime for which the defendant had been arrested might be found in his vehicle. Gant, — U.S. at —, 129 S.Ct. at 1719. Conceding that it did not follow from Chimel, the Court nevertheless concluded “that circumstances unique to the vehicle context also justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.‘” Id. (quoting Thornton, 541 U.S. at 632, 124 S.Ct. 2127 (Scalia, J., concurring in the judgment)). The Court therefore held that although a search of the passenger compartment of a vehicle is not authorized solely by the arrest of a recent occupant, it can be authorized on the basis of either a properly circumscribed Chimel rationale or this additional “evidence gathering” rationale. See id.
Apart from its reference to Justice Scаlia‘s concurring opinion in Thornton, the majority elaborated on its second justification primarily by way of example, noting that “(i)n many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.... But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee‘s vehicle and any containers therein.” Id. As the majority expressly noted, both Belton and Thornton involved initial arrests for drug offenses. While these examples might suggest a pure “nature-of-the-offense” excеption, in which a reasonable belief is held to exist whenever the crime of arrest is one for which evidence is possible and might conceivably be found in the arrestee‘s vehicle, see 3 Wayne
The nature of the offense of arrest is clearly intended to have significance, and in some cases it may virtually preclude the existence of real or documentary evidence, but a broad rule automatically authorizing searches incident to arrest for all other оffenses cannot be reconciled with the actual holding of Gant. Unlike simple traffic infractions like failing to signal, the driving-under-restraint type of offense for which Gant was arrested necessarily requires proof of awareness, or at least constructive notice, of the particular restraint being violated, making documentary evidence in the form of official notice a possible object of a search. See State v. Williams, 144 Ariz. 487, 698 P.2d 732, 734 (1985). Nevertheless, both the majority and concurring opinions had little difficulty in declaring the crime of arrest in Gant to be an offense for which the police could not expеct to find evidence in the passenger compartment of his car. Some reasonable expectation beyond a mere possibility, whether arising solely from the nature of the crime or from the particular circumstances surrounding the arrest, is therefore clearly contemplаted by the Court.
The Court‘s use of phrases like “reasonable to believe” and “reasonable basis to believe” is a further indication that it intends some degree of articulable suspicion, a standard which it has previously acknowledged in its Fourth Amendment jurisprudence as meriting official intrusion. While this pаrticular language is often used synonymously with probable cause, in light of the automobile exception, which already provides an exception to the warrant requirement whenever police have probable cause to believe an automobile contains evidencе of a crime, see, e.g., Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), a requirement of probable cause in this context would render the entire second prong of the Gant search-incident-to-arrest exception superfluous. For this reason, and because the majority at several points requires only a reasonable beliеf that evidence “might” be found, it seems more likely that the Court intended a lesser degree of suspicion commensurate with that sufficient for limited intrusions, like investigatory stops. Compare Gant, — U.S. at —, 129 S.Ct. at 1719 (allowing search of vehicle incident to arrest when it is “reasonable to believe evidence relevant tо the crime of arrest might be found in the vehicle” (emphasis added) (internal quotation omitted)) with Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (allowing stop when an officer could “reasonably conclude ... that criminal activity may be afoot,” and allowing a frisk for weapons where the officer could “reasonably conclude ... that the persons with whom he is dealing may be armed and presently dangerous.” (emphases added)); see also LaFave, supra, § 7.1 at 111 (comparing the language used in Gant to that used in Terry).
At least one of the dissenting justices in Gant apparently understood the majority to intend some such “reasonable suspicion” standard. See Megginson v. United States, — U.S. —, —, 129 S.Ct. 1982, 1982, 173 L.Ed.2d 1288 (2009) (Alito, J., dissenting) (arguing that the Court should do more than remand for reconsideration in light of Gant because the case “appears to present an important question regarding the meaning and specificity of the reasonable suspicion requirement in Gant“). A hybrid standard, permitting limited intrusions of a specific kind based on less than probable сause, once probable cause of a crime exists, is also not without analog. See Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (suggesting that less than probable cause may be needed to detain for fingerprinting); see also Crim. P. 41.1(c) (permitting nontestimonial identification upon a showing of probable cause to believe аn offense has occurred and “reasonable grounds, not amounting to probable cause to arrest, to suspect that the person ... committed the offense“); Unif. R.Crim. P. 436, 10 U.L.A. 79 (1992).
In this case, the district court found that the defendant was arrested for the crime of false reporting as the result of her conсession that she no longer lived at the address ap-
III.
The district court‘s suppression order is therefore affirmed, and the case is remanded for further proceedings consistent with this opinion.
Justice EID dissents.
Justice EID, dissenting.
As articulated in my dissent in a companion case issued today, I would find that the search in this case was conducted in good-faith reliance on our pre-Gant precedent, and that therefore the good-faith exception to the exclusionary rule applies. See People v. McCarty, No. 09SA161, 229 P.3d 1041, 1042-46, 2010 WL 1840822 (Colo. May 10, 2010) (Eid, J., dissenting).