STATE of Vermont
v.
Brian E. BAUDER.
Supreme Court of Vermont.
*40 Robert Simpson, Chittenden County State's Attorney, and Colin McNeil, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Henry Hinton, Appellate Defender, and Stephanie Pessin, Law Clerk (on the Brief), Montpelier, for Defendant-Appellant.
Present: REIBER, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.
¶ 1. JOHNSON, J.
The question presented in this case is whether law-enforcement officers may routinely search a motor vehicle without a warrant, after its occupant has been arrested, handcuffed, and secured in the back seat of a police cruiser, absent a reasonable need to protect the officers' safety or preserve evidence of a crime. *41 We hold that such warrantless searches offend the core values underlying the right to be free from unreasonable searches and seizures embodied in Chapter I, Article 11 of the Vermont Constitution. Accordingly, the trial court judgment to the contrary is reversed.
¶ 2. During the early morning hours of September 23, 2003, South Burlington police officer David Solomon observed a vehicle on Shelburne Road that appeared to be traveling at a speed of forty-five to fifty miles per hour in a thirty-five mile-per-hour zone. The officer followed the vehicle, which weaved several times and continued to travel in excess of the speed limit. Based on these observations, the officer activated his blue lights. The vehicle, in response, pulled into the lot of a service station on Shelburne Road.
¶ 3. While speaking with the driver, later identified as defendant, the officer detected a faint odor of intoxicants and observed defendant's eyes to be watery and bloodshot. At the officer's request, defendant exited the vehicle and performed a number of field sobriety tests. Based on his further observations, the officer arrested defendant for driving under the influence (DUI), handcuffed him, and placed him in the rear of his police cruiser. A woman passenger in the vehicle was identified, released, and left the scene. Defendant produced an unsigned bill of sale that purported to vest title to the vehicle in himself, but a check of the vehicle registration failed to identify defendant as the vehicle's owner. A further records check disclosed that defendant's Texas driver's license was suspended.
¶ 4. After defendant was arrested and placed in the police cruiser, Officer Solomon and another officer who had arrived as backup searched defendant's car. Officer Solomon later testified that he routinely searches the vehicles of drivers arrested for DUI under the "incident-to-arrest" doctrine, confining his search to what he described as the "lungeable" area of the vehicle, i.e., the area that the driver or passengers could potentially reach. The officer acknowledged, however, that he did not feel in any danger from defendant, who was handcuffed and seated in the back of the police cruiser at the time of the search. Nor did the officer harbor any concern that evidence in the vehicle might be removed or destroyed.
¶ 5. In their initial search of the vehicle, the officers discovered the head of a parking meter behind the driver's seat, a pipe with burnt residue in an open compartment attached to the driver's door, and an empty beer can and a glass jar containing fragments of a green leafy substance under the driver's seat. The officers opened the jar and smelled the contents, confirming their suspicion that it had contained marijuana. Officer Solomon also detected a very faint odor of marijuana in the vehicle, although he acknowledged in his affidavit that the odor was not consistent with having been freshly smoked.
¶ 6. Having previously concluded that they would not permit the vehicle to be driven from the scene absent proof of ownership and insurance, the officers further determined based on their initial search to impound the car, tow it to the police station, and apply for a search warrant. A warrant was granted, and the subsequent search of a backpack on the back seat of the vehicle uncovered a clear plastic bag containing a white powdery substance, later determined to be 7.2 grams of the drug ecstasy.[1]
*42 ¶ 7. Defendant was charged with possession of marijuana, possession of ecstasy, and possession of stolen property. He moved to suppress all of the evidence on the ground that it had been discovered pursuant to an illegal search incident to arrest. In his memorandum in support of the motion, defendant urged rejection of the federal Fourth Amendment standard set forth in New York v. Belton,
¶ 8. Following a hearing in which Officer Solomon testified to the circumstances of the stop and search, the court issued a written decision denying the motion to suppress. The court found that the warrantless search comported with both state and federal law as a search incident to arrest. Defendant later entered a conditional plea of guilty to one count of possession of ecstasy, and received a suspended sentence of two to five years and an order of restitution, all stayed pending the outcome of this appeal.
¶ 9. A motion to suppress evidence presents a mixed question of fact and law. While we uphold the trial court's factual findings absent clear error, we review the trial court's conclusions of law de novo. State v. Simoneau,
¶ 10. As noted, this appeal presents a fundamental question concerning the extent to which Article 11 authorizes a search incident to arrest following a motorist's arrest for DUI. In addressing this issue, we do not write on a clean slate. While we have recognized that the Fourth Amendment and Article 11 both seek to protect our "`freedom from unreasonable government intrusions into . . . legitimate expectations of privacy,'" State v. Kirchoff,
¶ 11. Sprague is especially instructive for our purposes here because it illustrates the principles that this Court applies in weighing the competing interests of individual freedom and effective law enforcement that invariably underlie Article 11 cases. In Mimms the Supreme Court embraced a "bright-line" rule for officers to follow by allowing them to order drivers out of their vehicles without any particularized suspicion or safety concern. In Sprague, however, we rejected administrative simplicity as an adequate basis for a seizure when weighed against the individual's right to be free from arbitrary police intrusions. "[D]ispensing entirely with the requirement that an officer provide some reasoned explanation for an exit order," we observed, "invites arbitrary, if not discriminatory, enforcement." Id. ¶ 19. Hence, we required an individualized showing of some "objective circumstance" that would cause a reasonable officer to believe the order was necessary to protect the officer's safety or to investigate a suspected crime. Id. ¶ 20.
¶ 12. Although the specific holding in Sprague was new, its basic reasoning was consistent with many of our earlier decisions. A similar balance was struck, for example, in Kirchoff, where we rejected a Supreme Court ruling that privacy in land may not extend beyond the immediate area surrounding the home, observing that "[t]his per se approach cannot be squared with Article 11."
¶ 13. The values illustrated by these and many other decisions of this Court rest at their core on the fundamental principle of limited government. Article 11's warrant requirement represents one of the essential checks on unrestrained government determined by the framers and confirmed through hard experience to be necessary to the preservation of individual freedom. The warrant requirement serves as a check on the executive power by guaranteeing review by a neutral and detached magistrate before a search is carried out, thereby deterring "searches on doubtful grounds" and assuring the people of "an impartial objective assessment" prior to a governmental invasion. Id. at 86-87,
¶ 14. Searches outside the normal judicial process are, therefore, presumptively unconstitutional, and permissible only pursuant to a few narrowly drawn and well-delineated exceptions. Savva,
¶ 15. One such exception is the search-incident-to-arrest doctrine. Although its scope has varied over time, the essential elements of the doctrine were settled by the United States Supreme Court in the landmark case of Chimel v. California,
¶ 16. This so-called "grab rule" defined and limited the doctrine for more than a decade, and was routinely applied in every state including Vermont. See, e.g., Meunier,
¶ 17. Belton was the subject of sharp criticism when it was decided, and it has remained controversial ever since. Justice Brennan, writing in dissent, observed that the rule was "analytically unsound and inconsistent with every significant search-incident-to-arrest case" with similar facts in the Court's recent history.
¶ 18. The concerns identified in the Belton dissent have continued to gather support from courts and commentators alike. Professor LaFave and others have questioned the warrantless search rationale based on either safety or simplicity, particularly as studies have shown that the police almost invariably handcuff and remove arrested drivers from the area of the vehicle. See 3 LaFave, supra, § 7.1(c), at 525; see also M. Moskowitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 Wis. L.Rev. 657, 697 (suggesting that auto searches following arrest should require a showing of "particular and unusual facts" that hinder the police from their usual procedure of "restraining and removing the suspect from any area that might contain *46 a weapon or evidence"); A. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L.Rev. 227, 274 (1984) ("If any bright line rule had been necessary to resolve issue in Belton, it would have been the opposite of the rule that the Court announced."); E. Shapiro, New York v. Belton and State Constitutional Doctrine, 105 W. Va. L.Rev. 131, 137 (2002) (noting that "[c]riticism of Belton has been vigorous and sustained," based principally on the lack of support for the Court's rationale that "existing law had proven to be so unworkable that it was necessary to forego Chimel's approach in favor of a bright-line rule").
¶ 19. In addition, while a majority of states continue to apply the rule in Belton, a number have either rejected or modified it under their state constitutions. See Shapiro, supra, 105 W. Va. L.Rev. at 141-42 (listing and discussing the state decisions that have declined to follow Belton or have applied a modified federal approach). New Jersey, Pennsylvania, New Mexico, and Nevada have all unequivocally rejected Belton under their state constitutions, applying instead the familiar standard predicated upon a showing of necessity to secure the officer's safety or preserve evidence. See Camacho v. State,
¶ 20. In our judgment, these decisions more closely reflect the principles and values underlying Article 11 as expressed in numerous opinions of this Court than the "abrupt shift in the standard of fourth amendment protections" represented by the Belton decision. C. Hancock, State Court Activism and Searches Incident to Arrest, 68 Va. L.Rev. 1085, 1085 (1982). As earlier explained, we have consistently rejected bright-line rules however laudable their purpose in easing the burden on law-enforcement officers as an adequate basis for relaxing the fundamental limitation on governmental power represented by the warrant requirement. Indeed, we have scrupulously maintained the principle even, as here, in the face of contrary United States Supreme Court holdings that any exception to the warrant requirement must be factually and narrowly tied to the exigencies that rendered a warrant application impracticable under the circumstances. Absent such circumstances, Article 11 simply forbids a warrantless search. As the New Jersey Supreme Court explained in admirably clear and unambiguous terms in Eckel, a warrantless automobile search based "solely on the arrest of a person unable to endanger the police or destroy evidence cannot be justified under any exception to *47 the warrant requirement and is unreasonable."
¶ 21. The State here offers no serious argument that the warrantless search in this case was justified as a search incident to arrest on any basis other than the blanket authority of Belton. Although our dissenting colleague claims that the search was somehow necessary to protect the officer's safety or preserve evidence, no persuasive evidence or argument is offered to demonstrate how defendant handcuffed in the back seat of the police cruiser or his passenger who had left the scene, presented any form of threat. The dissent's further assertion that the search here was actually consistent with pre-Belton decisional law is equally unsound. One need only read the impassioned Belton dissent to understand how fundamentally at odds that decision was with prior law. Contrary to the dissent's additional claim, moreover, it is clear that under Chimel and its progeny a showing of exigent circumstances in the form of a threat either to officer safety or to the preservation of evidence is essential to justify a warrantless vehicle search.
¶ 22. Having rejected Belton in favor of the traditional rule requiring that officers demonstrate a need to secure their own safety or preserve evidence of a crime, and finding no evidence of either need in this case, we are compelled to conclude that the trial court order denying defendant's motion to suppress must be reversed.
¶ 23. Although, in our view, the reasons that compel rejection of Belton apply with equal and obvious force to the so-called "Belton variation" adopted by several states, and although the State has not argued otherwise, we defer closing this portion of the discussion to consider this alternative in light of the dissent's strong endorsement of it. As the dissent notes, several states have allowed the police to conduct warrantless searches of automobiles after the occupant has been arrested in order to obtain evidence related to the crime that formed the basis of the arrest. As the dissent observes, the rationale of these decisions appears to be that "the arrest itself provides the probable cause basis for the search." Post, ¶ 90. The dissent would adopt this approach so long as the search was for "evidence related to the crime" and limited to the passenger compartment of the vehicle. Post, ¶ 90.[5]
¶ 24. The so-called Belton variation endorsed by the dissent is just that, a variation of Belton. Although the rationale is different the arrest purportedly provides the probable cause to search the reasoning remains essentially the same, based on a perceived need to authorize routine warrantless searches absent any particularized showing that the delay attendant upon obtaining a warrant is impracticable under the circumstances. As earlier observed, however, such an approach is fundamentally at odds with Article 11, under which warrantless searches are presumptively unconstitutional absent a showing of specific, exigent circumstances justifying circumvention of the normal judicial process. As we explained in State v. Trudeau, "no amount of probable cause can justify a warrantless search or seizure absent exigent circumstances."
¶ 25. Inherent, too, in the Belton variation are a number of assumptions that simply do not withstand scrutiny. First, as earlier discussed, support for the assumption that case-by-case evaluations are unworkable in the context of warrantless vehicle searches is simply lacking. Second, the assumption that an arrest automatically provides probable cause for a search is highly questionable. The finding of probable cause is a decidedly fact-specific determination, turning on whether the particular circumstances establish a "nexus between the crime, the suspect, and the place to be searched." State v. Towne,
¶ 26. The dissent's additional assumption of administrative simplicity is equally questionable. The dissent would permit searches only for evidence "related to the crime" for which the suspect was arrested. Post, ¶ 90. Would this permit a vehicle search following an arrest of the driver on an outstanding warrant for failure to appear? What if the underlying charges on the outstanding warrant related to possession of cocaine? Would an arrest for assaulting an officer during a routine vehicle stop authorize a search, and if so, for what? Does the nature of the arrest define the scope of the search, i.e., would an arrest based on possession of stolen televisions authorize a search under the car seat? The so-called bright-line rule advocated by the dissent raises as many questions as it answers. It most assuredly does not, however, commend itself as superior to the traditional search-incident-to-arrest rule in any respect.
¶ 27. Finally, in view of the dissent's strenuous claims to the contrary, we take the opportunity to explain the necessity of today's holding. Our dissenting colleague proffers essentially three separate doctrinal exceptions to the warrant requirement as more suitable "independent grounds" of decision. Post, ¶ 40. It is, of course, a fundamental tenet of judicial restraint that courts will not address constitutional claims least of all novel or unresolved constitutional claims when adequate lesser grounds are available. See In re Sealed Documents,
¶ 28. First, it is asserted that the parking-meter head discovered behind the driver's seat was "in plain view" and therefore as patent contraband provided an independent basis to search the car under the well-settled plain-view exception to the warrant requirement. Post, ¶¶ 42-51. The claim is predicated upon the investigating officer's statement, in response to a *49 question from the trial court, that the parking meter was visible from outside the vehicle. As noted, however, the search here did not proceed from a plain-view observation of the parking meter. Indeed, the officer repeatedly acknowledged that he did not see the parking meter during his initial contact with defendant outside the vehicle; he became aware of its existence only during the more probing search inside the car. The trial court addressed this seeming anomaly by finding unequivocally that the officer discovered the parking meter during the search incident to arrest, while noting that it "was arguably exposed to plain view."[6]
¶ 29. Thus, the facts underlying the dissent's proposed plain-view analysis may be characterized, at best, as uncertain. The legal basis, however, can only be described as dubious. The dissent relies on a single statement in Trudeau,
¶ 30. This is hardly surprising, as it is the police officer's perception of the object which establishes, in each case, its "plain-view" status. As the high court explained in Texas v. Brown, the plain-view doctrine is predicated on two principles: first, "that when a police officer has observed an object in plain view" from a legal vantage point the owner's privacy interests are forfeited; and second, that requiring a warrant once the police "have obtained a first-hand perception of [the object] would be a needless inconvenience."
¶ 31. In essence, therefore, the dissent proposes that we forgo addressing an issue the scope of the search-incident-to-arrest doctrine in the context of a vehicle search that the police officers here expressly relied on, that the parties briefed and argued at trial and on appeal, that formed the core of the trial court's decision, and that as explained earlier has been the subject of extensive discussion and debate among courts and commentators. Instead, the dissent urges that we address a novel constitutional issue based on questionable facts and even less legal support. With respect, we fail to see how this proposed alternative makes any sense, or serves any sound jurisprudential purpose.
¶ 32. The dissent also claims that defendant's failure to provide a valid driver's license, registration, or insurance card, coupled with irregularities in the vehicle's plates and bill of sale, authorized the police to conduct a warrantless search for proof of ownership. The argument is unpersuasive. It relies, essentially, on the so-called "automobile exception" to the warrant requirement, which as we have elsewhere explained requires a showing of both probable cause that the vehicle contains evidence of a crime, and exigent circumstances suggesting that the evidence may be lost during the delay attendant upon obtaining a warrant. See Savva,
¶ 33. Neither requirement was satisfied here. Despite the officer's suspicion that the car might have been stolen, he did not arrest defendant on that basis and identified no ground, much less probable cause, to believe that proof of ownership might be discovered behind or underneath the driver's seat, where the parking meter and glass jar containing marijuana were found. Even if it were assumed, however as the dissent urges that the inadequate proof of ownership established probable cause to believe that the car was stolen, the circumstances did not establish that element of urgency essential to the execution of a warrantless search. The officer readily acknowledged that he had no concerns about the possibility of evidence inside the vehicle being removed or destroyed. Indeed, prior to the search, the officers had not observed any evidence of a crime in the vehicle, let alone evidence that might conceivably be lost or destroyed.[7]
¶ 34. Furthermore, defendant was under arrest, the car was not on a public highway but safely parked in a commercial lot, and the police had determined that it would be grounded, i.e., locked and kept there until they determined its ownership. Hence, there was no exigency compelling an immediate search rather than a subsequent warrant application. In Trudeau, the principal case on which the dissent relies, the police had observed evidence in *51 plain view within the vehicle that related directly to the offense for which defendant was arrested. Indeed, we analyzed Trudeau as a plain-view case, not an automobile-exception case, emphasizing that the officers violated no privacy rights of the defendant when they observed an open beer can in plain view on the floor of the defendant's car before arresting him for DUI.
¶ 35. Finally, the dissent proposes in a footnote that the search here could be validated as an inventory search under the inevitable-discovery doctrine. Courts have approved inventory searches of lawfully impounded vehicles to protect the owner's property while in police custody, see, e.g., Colorado v. Bertine,
¶ 36. In closing, we believe that it is essential to be as clear about what this *52 case concerns as what it does not. Although the dissent repeatedly and emphatically asserts that our holding somehow removes important safety protections for law-enforcement officers, it cites not one shred of evidence in the record nor a single statistic, relevant public-safety study, or other empirical evidence outside the record to support the claim. Indeed, as we have explained, the evidence and authorities demonstrate that, far from removing safety protections, our holding is entirely consistent with existing, standard police procedures and removes no essential safeguards. We yield to no one on this Court in our commitment to the safety of Vermont law-enforcement officers in the field. Strident assertions, however, are no substitute for proof. In the absence of a demonstrated need, we are not at liberty to disregard the fundamental constitutional requirement of a search warrant. By limiting the exercise of arbitrary governmental power, this constitutional safeguard protects the police no less than the public.[9]
¶ 37. Justice Robert Jackson once observed that "[w]hen the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." Johnson v. United States,
Reversed.
¶ 38. DOOLEY, J., dissenting.
This has turned into one of the most important decisions from this Court, in large part because the majority has decided to render a broad and unnecessary constitutional ruling. The circumstances presented in this case are, with variations, played out every day many times throughout the state as law-enforcement officers interact with drivers who are dangerous to *53 others and may be dangerous to the officers. Indeed, stopping and approaching a vehicle, particularly as here in the middle of the night, is one of the most dangerous activities in which police officers engage. In these circumstances, the officers must act quickly and decisively and cannot become constitutional law scholars to determine what actions are appropriate, particularly to protect their own safety. Such circumstances led a broad range of commentators to urge the adoption of a bright-line standard to determine the perimeters of lawful searches following automobile stops a bright line that can be easily applied by the officer and understood by the citizen. In New York v. Belton,
¶ 39. In my judgment, the Court's decision removes an important safety protection for officers, while offering little additional privacy to motorists whose vehicles and vehicle interiors are already on display to the public. Thus, the decision makes the job of an officer who stops a vehicle at two o'clock in the morning, as this officer did, more dangerous. To a large extent, the decision will preclude searches of vehicles made pursuant to the arrest of the driver or occupant, leaving weapons, contraband and evidence for which the occupant was arrested inaccessible to the officer. In general, the majority reaches this result by arguing that the only law-enforcement interest involved is administrative efficiency, which must give way to the legitimate privacy interests of citizens. In my opinion, this analysis trivializes the very important safety and evidence-gathering interests that are at stake in this decision, while exaggerating the privacy interests. I cannot subscribe to this result, especially where the gain in legitimate privacy protection is so limited.
¶ 40. Before addressing the perimeters of the search-incident-to-arrest exception under Article 11 of the Vermont Constitution, I emphasize that the majority's broad constitutional holding is wholly unnecessary because the search of defendant's vehicle in this case is fully justified under principles this Court has already adopted. There are two independent grounds under which we should affirm the trial court's denial of defendant's motion to suppress, and the search is also justified by pre-Belton jurisprudence from this state and others. First, undisputed testimony and the court's findings demonstrate that the stolen parking meter found in the vehicle defendant was operating was in plain view at the time the police lawfully stopped and approached the vehicle, and thus the seizure of the parking meter and other evidence plainly visible in the open passenger compartment of the vehicle was justified under the plain-view exception to the warrant requirement. Second, defendant's failure to produce a valid driver's license, a vehicle registration card, or any proof of insurance, coupled with irregularities concerning the vehicle's plates and bill of sale, created a reasonable suspicion that the car had been stolen and authorized the police to conduct a limited warrantless search of the vehicle to look for proof of ownership. Third, the search is justifiable even under the search-and-seizure law existing prior to the Belton bright-line rule.
¶ 41. The majority passes over the first ground and ignores the second ground in part because it views the facts most favorably to defendant and ignores the trial court's findings, contrary to our standard *54 of review. See State v. Simoneau,
¶ 42. With these facts in mind, I first examine the plain-view exception to the warrant requirement. For that exception to apply, (1) the officer must have lawfully been in a "`place from which the evidence could be plainly viewed'"; (2) the item must be plainly visible and its incriminating nature must be immediately apparent; and (3) "`not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.'" State v. Trudeau,
¶ 43. Here, notwithstanding the majority's suggestion to the contrary, the evidence was undisputed that the stolen parking meter was in plain view from outside the vehicle defendant was operating at the time of the stop. The officer at the scene testified unequivocally on direct examination that a parking meter was laying uncovered on the floor of the vehicle behind the driver's seat in plain view from outside the vehicle. In response to a direct question from the court, the officer again testified that "the parking meter head was visible from outside the vehicle." During cross-examination of the officer, defense counsel questioned whether the parking meter head was actually visible from outside the car, given that the officer had acknowledged not noticing it until he opened the car door to search the vehicle. The officer reiterated that the parking meter head was uncovered and plainly visible from outside the car. In the end, defendant did not attempt to dispute that fact. The district court stated in its decision that the seized parking meter was "arguably" exposed to plain view, and, in response to defendant's motion for reconsideration, the court elaborated that "the stolen parking meter was readily visible through the car windows given its size and nature." Thus, the majority incorrectly states that the record is at best "uncertain" with respect to whether the parking meter was in plain view.
¶ 44. Nor was there any dispute that the officer had made a lawful stop and was lawfully positioned outside the vehicle in a location from which the parking meter was visible. Further, the incriminating nature of the disconnected parking meter was manifest.
*55 ¶ 45. Hence, two issues remain concerning the applicability of the plain-view exception in this case. The first is whether the officer had to have actually seen the parking meter while he was in a lawful position, or whether it was sufficient that the parking meter was in plain view from where the officer was legally positioned moments earlier, even though he did not actually notice the parking meter until he commenced the challenged search by opening the car door. In my view, it is immaterial that the officer did not happen to notice the plainly visible parking meter before he began searching the car. The test, as quoted above, is whether the item "`could be'" plainly viewed from a lawful location. Trudeau,
¶ 46. An objective test is also consistent with the theoretical underpinning of the plain-view exception that there can be no reasonable expectation of privacy in items left in plain view of officers lawfully positioned to see them. In this case, defendant chose to place a stolen parking meter on the floor of his vehicle in a location that made it plainly visible from outside the car. Although the officer in this case did not happen to notice the parking meter until he opened the car door to commence a search of the vehicle, the parking meter was plainly visible from the officer's lawful position outside the car, and the officer may well eventually have seen the parking meter even if he had decided not to search the vehicle.
¶ 47. The majority cites Texas v. Brown,
¶ 48. The second issue regarding application of the plain-view exception to this case is whether there were exigent circumstances that allowed the officer to seize the plainly visible incriminating item. According to the majority, there were no exigent *56 circumstances because the passenger had left the scene, the driver had been secured in the patrol car, the vehicle was to be impounded, and the officer was not concerned that evidence might be removed from the car. Once again, however, the majority provides an inaccurate statement of the facts in finding the absence of exigent circumstances. The majority states that the vehicle was to be impounded, but fails to indicate when the police decided that they had grounds to impound the car. The undisputed testimony of the arresting officer was that the decision to impound the vehicle or to leave it at the scene safely off of the highway which the officer called "grounding" was based on the results of the initial search of the vehicle and was not made before the search commenced.[10]
¶ 49. In other words, at the time of the initial search, no determination had been made that defendant's car warranted seizure or, alternatively, that it would be left at the scene.[11] The fact that the passenger had been released and had left the scene increased the possibility that she or someone else could return to the car and remove evidence in the event the car were left at the scene. As the trial court stated, "the other occupant was not arrested and the true owner's identity was not known, and therefore the lawful owner might have returned to remove the vehicle and the contraband in it." Finally, the officer's testimony that he was not concerned about *57 evidence being removed or destroyed does not demonstrate the lack of exigent circumstances because it is an objective view of the circumstances, not the officer's subjective motivation, that determines whether there was an exigency permitting the officers to seize incriminating items left in plain view.
¶ 50. In sum, the release of the passenger, the uncertainty over ownership of the vehicle, and the possibility of the police leaving the car by the roadside constituted exigent circumstances allowing the officers to conduct a warrantless seizure of incriminating evidence left in plain view in the vehicle. On this point, this case should be controlled by State v. Trudeau,
¶ 51. Thus, all three elements of the plain-view exception were satisfied in this case. On these facts, I would affirm the decision not to suppress the evidence found in the search of the car under Article 11 of the Vermont Constitution, without reaching the search-incident-to-arrest issue.[12] Cf. State v. Savva,
¶ 52. As a second ground for affirming the denial of defendant's motion to suppress in this case, I would find that the search was proper where the circumstances indicated that the vehicle might have been stolen. One of the leading commentators on the law of search and seizure supports case law holding that it is reasonable for a police officer to make a limited warrantless search of a vehicle to determine ownership of the vehicle or to investigate the possible theft of the vehicle. 3 LaFave, supra, § 7.4(d)-(e), at 662-66. According to LaFave:
The better view is that if the driver has been given an opportunity to produce proof of registration but he is unable to do so, and even if he asserts that there is no such proof inside the car, the officer is not required to accept such an assertion at face value, at least when [the suspect's] previous conduct would . . . cast doubt upon his veracity; at that point, the officer may look for registration papers on the dashboard, sun visor and steering column and, if not found in those places or seen in plain view, in the glove compartment, [and] all places where it may reasonably be found.
Id. at 663 (internal quotations and citation omitted); accord In re Arturo D.,
¶ 53. As noted, in this case defendant was unable to produce a valid driver's license, car registration, or proof of insurance. See 23 V.S.A. §§ 301, 307 (motor vehicle shall not be operated on highway unless vehicle is registered and registration is carried in some easily accessible place in vehicle); 23 V.S.A. § 1012(b) (operator "shall produce his or her operator's license and the registration certificate for the motor vehicle"). Further, the vehicle's license plates did not match the vehicle, see 23 V.S.A. § 513 (owner of motor vehicle shall not attach to vehicle number plates not assigned to that vehicle), and the bill of sale defendant showed to police did not indicate that defendant was the owner of the vehicle. See 23 V.S.A. § 1012(a) (operator shall give "name and address of the owner of the motor vehicle"). Given these circumstances, the police officer had a responsibility to assure himself that the vehicle had not been stolen.
¶ 54. The majority insists that no exigent circumstances existed, relying heavily on the fact that defendant had been placed in custody. To the extent that question is relevant in these circumstances, however, this Court has held that "[t]he mere placing of a suspect vehicle's occupants in custody does not extinguish exigency, if it otherwise exists." State v. Girouard,
¶ 55. The majority repeatedly relies upon the purported subjective motivations of the arresting officer in this case, and yet it is well settled that "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." Scott v. United States,
¶ 56. The majority's emphasis on the officer's subjective motivation highlights the problem with decisions that have the effect of turning police officers into constitutional law scholars who have to predict the developing law and how this Court will rule. The officer understood he could search incident to the DUI arrest and gave answers related to that justification. The majority is requiring that he also understand the law relating to whether he was dealing with a stolen car and answer that he was searching for evidence of ownership of the vehicle. The reality is that officers will not invariably give the right constitutional law answer in describing the purposes of the search. The only reasonable rule has to be that the validity of the search must be based on the objective evaluation of the circumstances and not our evaluation of the level of constitutional law knowledge of the searching officer.
¶ 57. The majority also incorrectly contends that the officer did not observe any evidence of a crime in the vehicle. The officer's affidavit and testimony indicated that defendant was speeding and driving erratically. After the stop occurred, the officer smelled a faint odor of alcohol emitting from the vehicle. Further, defendant exhibited signs of intoxication, and he failed dexterity tests, which led to his arrest for driving while intoxicated. Thus, there was evidence that defendant had committed several crimes connected with the vehicle.
¶ 58. In short, either of the two grounds discussed above, and certainly both in combination, provided adequate grounds for the police to search the vehicle without a warrant for evidence of the crimes DUI and stealing a parking meter or possessing a stolen meter or to determine the ownership of the vehicle. Thus, we need not reach broad constitutional questions in this case.
¶ 59. This leads me to the majority's broad constitutional holding that rejects the decision of the United States Supreme Court in Belton,
¶ 60. Moreover, in many encounters involving vehicle stops, as in the one before us, there are several suspects or passengers. In those cases, officers may search the area within the reach of any or all of those persons. See State v. Mayer,
¶ 61. This leads me to the principal basis for my dissent, which does require an in-depth analysis of the perimeters of the search-incident-to-arrest exception to warrantless searches under Article 11 of the Vermont Constitution. Assuming this to be the controlling issue under the circumstances of this case, I would still affirm the district court's denial of defendant's motion to suppress because, in my view, the values underlying Article 11 do not prohibit police from conducting warrantless searches of the passenger compartment of automobiles following the arrest of the operator for an offense involving the use of the vehicle. The district court found both the automobile and search-incident-to-arrest exceptions to be applicable in this case. The court explained that exigent circumstances existed because the police had released defendant's companion without ascertaining whether she had keys to the vehicle, and ownership of the vehicle had not been established. The court also cited the "well-established" principle that police can lawfully conduct a warrantless search of a person and his immediate surroundings following a valid stop and arrest.
¶ 62. In support of its decision, the district court relied on Belton, the leading federal case addressing the search-incident-to-arrest exception in the context of an automobile stop. The question before the Court in that case was the following: "When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding?" Belton,
¶ 63. Following the decision in Chimel, the lower courts were divided on whether, or the extent to which, that holding applied in the context of the search of an automobile following the arrest of its occupant. See 3 LaFave, supra, § 7.1(a), at 503-04. Recognizing that the lower courts had found the holding in Chimel "difficult to apply in specific cases," particularly automobile stops, the Court in Belton reasoned that Fourth Amendment protections "`can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.'" Belton,
¶ 64. The Court concluded, however, that "no straightforward rule ha[d] emerged" from the litigated federal or state cases regarding "the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants." Belton,
¶ 65. The majority rejects the analysis of Belton, particularly the adoption of a bright-line rule, as an "abrupt shift in the standard of fourth amendment protections." Ante, ¶ 20. The so-called "abrupt shift" is actually none at all. Belton creates a bright-line rule allowing warrantless searches incident to the roadside arrest of *62 automobile occupants. The majority recognizes that the "search-incident-to-arrest doctrine" is an established exception to the warrant requirement. Ante, ¶ 15. Moreover, this Court has adopted this exception. See State v. Meunier,
¶ 66. The use of a bright-line rule for searches incident to arrest is explained in United States v. Robinson where the Court rejected a case-by-case adjudication of "whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest."
¶ 67. But even if we were not dealing with the definition of an accepted bright line as opposed to creating a new one I would reject the majority's holding that our precedents prohibit bright-line rules. In fact, our interpretations of Article 11, and the federal court interpretations of the Fourth Amendment, are essentially the same on this point. At its strongest, the federal policy on the propriety of bright-line rules was recently stated in United States v. Drayton: "[F]or the most part per se rules are inappropriate in the Fourth Amendment context. The proper inquiry necessitates a consideration of all the circumstances surrounding the encounter."
¶ 68. On the other hand, in circumstances where there was a need for certainty, we adopted what is essentially a bright-line rule in State v. Martin,
¶ 69. Hence, the proper question is not whether Belton should be rejected because it embodies a bright-line rule, but rather, whether a bright-line rule is justified in the circumstances and whether Belton embodies a reasonable bright line. I believe that the answer to the first part of the question is clearly yes. Although I believe that the Belton bright line is misplaced and thus the answer to the second part of the question is no I believe that the search in this case is within a reasonably drawn line so that the Belton misplaced line does not affect the outcome.
¶ 70. The reasons for a bright-line rule in cases like the present are best explained by Professor LaFave, as quoted in Belton, who explained that because the Fourth Amendment is "`primarily intended to regulate the police in their day-to-day activities,'" it "`ought to be expressed in terms that are readily applicable by the police in the context of law enforcement activities in which they are necessarily engaged." Belton,
[A] responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made.
Atwater v. City of Lago Vista,
¶ 71. I can think of no greater example of the need to apply constitutional search-and-seizure rules "on the spur (and in the heat) of the moment" than during a roadside stop of an automobile of a likely intoxicated driver in the middle of the night. Nor are there many recurrent law-enforcement activities that are more dangerous for the officer involved. For this reason, the case for a bright-line rule involving automobile searches incident to an arrest is a strong one.
¶ 72. There is an additional reason why a bright-line rule is appropriate for automobile searches incident to the arrest of an occupant of a vehicle. In applying search-and-seizure law, courts have unanimously recognized that a vehicle is fundamentally *64 different from a home in the sense that its mobility, its function as transportation on public highways, and its extensive regulation (1) increase the likelihood of the existence of exigent circumstances justifying warrantless searches and (2) result in frequent contact between the vehicle's occupants and government authorities or members of the public in both criminal and noncriminal contexts, thereby reducing the expectation of privacy in items placed in the open passenger compartment of the vehicle. See 3 LaFave, supra, § 7.2(b), at 548.
¶ 73. People regularly expose the interior of their vehicles to public view by driving them on public streets and parking them in public places. Indeed, the many windows in the vehicle leave little in the interior of the passenger compartment, apart from that placed in closed containers, outside of public view, and thus there is little expectation of privacy in the passenger compartment of an automobile.
¶ 74. Consequently, similar to other courts, we have consistently emphasized within our Article 11 jurisprudence the distinction between searches of homes and cars. See State v. Geraw,
¶ 75. In contrast, in State v. Brooks,
¶ 76. The acknowledgment of a reduced expectation of privacy in automobiles, as opposed to homes, is incorporated directly into the automobile exception and indirectly into the search-incident-to-arrest exception to the warrant requirement. With *65 regard to the automobile exception, although we have not followed federal law in allowing warrantless searches of automobiles based on probable cause absent a particularized showing of exigent circumstances, Trudeau,
¶ 77. In Savva, we identified the issue before us as "whether defendant had a reasonable expectation of privacy, not in the vehicle as a whole, but specifically in the contents of the brown paper bag in which the drugs, contained in plastic bags, were found," and we acknowledged that "Article 11's requirement for an expectation of privacy may not be met" if a container's contents were discernable. Id. at 89-90,
¶ 78. Like the automobile exception, Belton's bright-line rule allowing police to search the passenger compartment of a vehicle following the lawful arrest of its occupants is based, at least in part, on the mobility of, and reduced expectation of privacy in, automobiles. See Girouard,
¶ 79. It is important to understand that the majority has not only refused to adopt a bright-line rule, but it has gone as far in the opposite direction as is realistically possible by requiring a showing of exigent circumstances on a case-by-case basis. Anyone who reads both the majority's and the dissent's analysis of the presence of exigent circumstances in Trudeau, and the majority's attempt to distinguish Trudeau from this case, will immediately recognize that it is difficult to predict whether exigent circumstances can be found. Many courts have noted that "exigent circumstances" are difficult to define even in the context of deliberate and painstaking review based on appellate hindsight. See State v. Aviles,
¶ 80. The majority asks that a lone police officer who stops a vehicle at two o'clock in the morning not only be a constitutional *66 law expert but also exercise twenty-twenty hindsight on whether a majority of this Court will find exigent circumstances.[16] No law enforcement system can operate this way safely and effectively. The majority's case-by-case exigent circumstances regime is the equivalent of holding that a vehicle cannot be searched incident to an arrest of an occupant of the vehicle.
¶ 81. In the majority's view, the only advantage to a bright-line rule is "law-enforcement efficiency" and "administrative simplicity." As I said in the opening of this dissent, the majority has trivialized very important interests in officer safety and evidence gathering, making them seem insignificant when balanced against the privacy interests of citizens. But we have not always been so hostile to the realities of limited resources available for law enforcement functions. In State v. Oakes, in response to an argument that a consensual search of defendant's home had been discontinued and required new authority to be recommenced, we explained:
The discontinuity of the investigation was, in some measure, due to the limitations implicit in police work in most Vermont villages. The small manpower of the local force must, of necessity, be supplemented by the personnel and the expertise the state police can furnish, once they arrive. . . . Delay, or interruption of police presence at the premises, on this account, does not undercut the right of the police to complete, within a reasonable time, their investigative work, or require a renewed authority to enter.
¶ 82. As for the majority's main objection to a bright-line rule authorizing a search of a vehicle that the arrested occupant is often restrained such that he or she could never reach a weapon or destroy evidence by the time the search occurs the best response is to examine the nature of automobile stops. The majority attributes the circumstance of a secured suspect to the recent decision in Thornton,
¶ 83. There are very important reasons for a "grab rule," and they are particularly strong for vehicle searches, which often involve more than one occupant of the vehicle. To ensure their safety, police must be cognizant of the potential threat *67 posed not only by the suspect, but also by the suspect's companions. For example, in an early post-Chimel Vermont case, Mayer, defendant was arrested in a motel room also occupied by his female companion.
Upon entering the motel room . . . it was an essential security function for the enforcement officers to search the accused and the area within his reach. It was equally reasonable that the protective search extend to the area within reach of his female companion. It appears that the weapon was within the grasp of both. Until the weapon was secured, either occupant of the room had the capability of impeding the arrests and endangering the lives of those present.
Id. at 567-68,
¶ 84. The majority tries to avoid these security interests by "factualizing" the case, see generally W. LaFave, Being Frank About the Fourth: On Allen's "Process of `Factualization' in the Search and Seizure Cases", 85 Mich. L.Rev. 427 (1986), to say there is no security concern. Thus, in its introductory paragraph it characterizes the question in this case as: "whether law-enforcement officers may routinely search a motor vehicle without a warrant, after its occupant has been arrested, handcuffed, and secured in the backseat of a police cruiser, absent a reasonable need to protect the officers' safety or preserve evidence of a crime." Ante, ¶ 1. In fact, its categorical rejection of Belton and any alternative to Belton that involves a bright-line review represents a far broader holding than its statement of the issue admits. Thus, its holding is much broader than the facts of this case and involves many instances where security of the officer is the prime concern.
¶ 85. The majority responds that there is no proof that stopping vehicles is inordinately dangerous. In fact, the evidence is powerful. Relying on a published study, the United States Supreme Court noticed and relied upon that danger in Adams v. Williams,
The terrifying truth is that officers face a very real risk of being assaulted with a dangerous weapon each time they *68 stop a vehicle. The officer typically has to leave his vehicle, thereby exposing himself to potential assault by the motorist. The officer approaches the vehicle not knowing who the motorist is or what the motorist's intentions might be. It is precisely during such an exposed stop that the courts have been willing to give the officers wide latitude to discern the threat the motorist may pose to officer safety.
An officer in today's reality has an objective, reasonable basis to fear for his or her life every time a motorist is stopped. Every traffic stop, after all, is a confrontation. The motorist must suspend his or her plans and anticipates receiving a fine and perhaps even a jail term. That expectation becomes even more real when the motorist or a passenger knows there are outstanding arrest warrants or current criminal activity that may be discovered during the course of the stop. Resort to a loaded weapon is an increasingly plausible option for many such motorists to escape those consequences, and the officer, when stopping a car on a routine traffic stop, never knows in advance which motorists have that option by virtue of possession of a loaded weapon in the car.
Id. at 1223 (internal quotation and citation omitted).[17]
¶ 86. Here, in addition to issues of safety, there was the potential of lost evidence. The single officer who initiated the stop had to leave the passenger in the darkened vehicle while the defendant performed the dexterity tests. We know that the passenger did not use a weapon at that time, although she could have done so, but we do not know what evidence she may have removed from the vehicle. Although the officer testified that she had left the scene by the time of the search, it is impossible to know how far away she went in the middle of the night. For all the officer knew, she could have returned later to remove evidence. Moreover, if there had been no vehicle search and defendant had been released after DUI processing as normally occurs, he could have returned and driven the vehicle away.
¶ 87. My point is that, irrespective of the timing of the arrest or search, or the restraint or release of passengers for whom there is no probable cause to arrest, a bright-line rule is necessary to protect the officer and the evidence at the scene. See State v. Watts,
*69 ¶ 88. As the majority reluctantly acknowledges, most states have followed Belton and embraced a bright-line rule for searches incident to arrest. See Vasquez v. State,
¶ 89. Indeed, notwithstanding "the drumbeat of scholarly opposition to Belton," State v. Eckel,
¶ 90. Other states, such as New York, Oregon, and Wyoming, have relied on the reasoning underlying both the automobile and search-incident-to-arrest exceptions to allow police to conduct limited searches of the passenger compartment of automobiles following an arrest to obtain evidence related to the crime for which the suspect was arrested.[18] For example, the Supreme *70 Court of Oregon has "expanded the justification for a search incident to arrest beyond considerations of the officer's safety and destruction of evidence to permit a reasonable search when it is relevant to the crime for which defendant is being arrested." State v. Lowry,
¶ 91. Similarly, although the New York Court of Appeals did not adopt Belton's bright-line test under its state constitution, it recognized that "when the occupant of an automobile is arrested, the very circumstances that supply probable cause for the arrest may also give the police probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape." People v. Blasich,
¶ 92. In particular, courts have employed this rule following arrests for DUI. For instance, while rejecting the full reach of Belton, the Wyoming Supreme Court held that its state constitution authorized police to search the passenger compartment of a vehicle for evidence of DUI, the offense for which the driver was arrested. Vasquez,
¶ 93. This brings me to what should be the question in this case if we reach a broad constitutional holding: Where should the bright line be established? I believe that a bright-line rule allowing officers to search the passenger compartment of vehicles for evidence of the crime for which an occupant of the vehicle was lawfully arrested is completely consistent with our case law and the values Article 11 protects. It would be inconsistent with Article 11, however, to grant a broader authorization for searches of automobiles because in Savva we held that a warrant was necessary before police could search items or areas such as closed containers or compartments in which a person had demonstrated a legitimate expectation of privacy. I see no reason to revisit Savva and thus would not adopt the full extent of the Belton holding allowing essentially a complete search of a vehicle, including any closed containers within the vehicle, following an arrest. But, as the majority of state courts have recognized, a bright-line rule allowing searches of a vehicle's passenger compartment, most of which can be viewed from outside the vehicle, does not unduly infringe upon reasonable expectations *71 of privacy of those operating motor vehicles on our highways.
¶ 94. When an operator or occupant of a vehicle is arrested for DUI, a crime that is committed with the vehicle, it is eminently reasonable to allow police to conduct a warrantless search of the open passenger compartment of the vehicle for evidence related to the crime, such as alcohol or other drugs.[19] There is plainly a logical inference supporting a conclusion that the passenger compartment may contain evidence of the crime. See State v. Towne,
¶ 95. In this case, defendant was lawfully arrested after he showed indicia of intoxication and failed dexterity tests. A police check revealed that the records of the Department of Motor Vehicles did not show defendant as the registered owner of the vehicle. Furthermore, defendant was unable to produce a bill of sale with his name on it and had only a vague explanation for how he had obtained the vehicle's plates. Finally, the vehicle's passenger was released from the scene, and, until they completed the initial search of the passenger compartment of the vehicle, the police were unsure whether they were going to impound, or merely ground, the vehicle. Under these circumstances, it was entirely reasonable for the officers to conduct a brief, warrantless search of the open passenger compartment of the vehicle to secure any evidence related to defendant's arrest for DUI and to determine the owner of the vehicle. Where the vehicle is essentially the instrument of the serious offense of drunken driving, police should be allowed to search the passenger compartment of the vehicle to prevent the loss of evidence related to that offense.
¶ 96. The majority's opinion suggests that the arresting officer was on a fishing expedition, but even assuming the relevance of the officer's subjective motivation, he expressly testified that his initial concern was "evidence of the [DUI] in relation to the [DUI] arrest whether it's beer bottles, prescription pills, drugs, that sort of thing that would have impaired that particular person." This Court has explicitly rejected a motive-based rationale in almost exactly the same context in a previous decision. See Trudeau,
¶ 97. In conclusion, I repeat that the broad constitutional ruling of the majority is wholly unnecessary if we decide this case under the settled law that is applicable. If we must decide the constitutional question, however, I cannot accept the majority's answer. The rule that the majority announces today will seriously impede legitimate law-enforcement activities and increase the danger to law-enforcement officers, without providing any real benefit for the privacy interests of Vermont citizens. Accordingly, I would affirm the district court's denial of defendant's motion to suppress. I respectfully dissent.
¶ 98. REIBER, C.J., dissenting.
I respectfully dissent from the majority's holding that the search in this case was unconstitutional. I agree with the majority that the search was not justified by the plain-view exception to the warrant requirement, ante, ¶¶ 28-31, or by the search-incident-to arrest doctrine, ante, ¶¶ 15-26. However, I concur with my dissenting colleague's position that the search was justified by the circumstances indicating that the vehicle might have been stolen, and would affirm on that narrow ground, as articulated ante, ¶¶ 52-54.
NOTES
Notes
[1] The officer testified several times to the effect that "the car wasn't going to be driven because we had no documentation of who it belonged to, that it was registered or that it was insured." In other words, the decision to "ground" the car was made before the initial search, based on the lack of proof of ownership. Later, based on the evidence obtained during the search, the officers determined that the vehicle would be impounded and a warrant obtained for a more thorough search. With respect, the dissent is simply mistaken in asserting that the decision to ground the vehicle was made after the search.
[2] The full text of Article 11 reads:
That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.
Vt. Const. ch. I, art. 11.
[3] The dissent's assertion that State v. Martin,
[4] Although the word "unreasonable" does not appear in the text of Chapter I, Article 11 of the Vermont Constitution, see supra, note 2, we have consistently construed the provision to forbid only unreasonable searches and seizures. State v. Record,
[5] As the dissent notes, this variation also appears to have been endorsed by Justice Scalia in a concurring opinion in Thornton. While sharply criticizing Belton, Justice Scalia nevertheless opined that, "[i]f 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."
[6] The dissent asserts that we mischaracterize the record "with respect to whether the parking meter was in plain view." Post, ¶ 43. Not so. The officer's testimony was clear, unequivocal, and undisputed that he did not observe the parking meter from outside the vehicle, and was unaware of its existence until it was discovered during the vehicle search.
[7] Contrary to the assertion of the dissent, we neither "emphasize" nor "repeatedly" rely on the office's subjective perception that he did not feel threatened or pressed to preserve evidence. We merely note the officer's testimony in this regard as further proof of the absence of evidence of exigent circumstances in this case.
[8] To be sure, other courts have held that, under the traditional automobile exception to the warrant requirement, a driver's failure to produce documentation of ownership may establish a reasonable suspicion that the vehicle is stolen and thereby establish the basis for a limited search of the vehicle in those places, such as the glove compartment or sun visor, where such documents are normally stored. See, e.g., State v. Holmgren,
[9] The study to which the dissent refers, post, ¶ 85, and which has been cited by the United State Supreme Court on several occasions, shows the high frequency of shootings of police officers as they "approach a suspect seated in an automobile." Adams v. Williams,
[10] Despite the majority's criticism in footnote one, I emphasize that the officers did not decide what to do with the car until after the search. Moreover, because "grounding" simply involves leaving the car where it is stopped, anyone could come along and drive the car away. Grounding in that sense does not involve a seizure at all.
[11] Ironically, the majority's version of the facts brings us to another clearly applicable ground to validate the search. If, as the majority suggests, the arresting officer had determined from the onset of his encounter with defendant that the vehicle was to be seized and impounded, then the evidence could have been admitted pursuant to the inevitable-discovery rule, which is an exception to the exclusionary rule. Under that rule, illegally obtained evidence will not be suppressed if the prosecution demonstrates that the seized evidence would have been obtained inevitably even if there had been no, statutory or constitutional violation. United States v. Mendez,
[12] After opening the car door, the investigating officers also observed (1) a glass jar containing a green leafy substance on the floor behind, not underneath, the driver's seat, and (2) a small pipe easily visible in an open compartment of a side door.
[13] Contrary to the majority's assertion, however, neither Chimel nor its progeny has required a showing of "exigent circumstances" to justify a search incident to an arrest. See ante, ¶ 21. Exigent circumstances is a legal term of art that has been applied to automobile searches. Chimel did not even involve the search of an automobile. In effect, Chimel narrowed the area that could be searched incident to arrest, thereby creating a bright-line "grab rule," but did not incorporate a requirement that there be a showing of exigent circumstances.
[14] I say "apparently endorses" because the majority also requires a showing of exigent circumstances in the individual case, a requirement wholly inconsistent with Chimel and the cases that apply it, including Robinson.
[15] I do not think that State v. Sprague,
[16] Without attempting to explain how an officer will make the decisions the majority requires, the majority simply responds that "support for the assumption that case-by-case evaluations are unworkable in the context of warrantless vehicle searches is simply lacking." Ante, ¶ 25. At some point, the obvious needs no further support.
[17] The majority responds to the clear evidence of danger to officers with the argument that the evidence is irrelevant because defendant was under arrest in the police car when the vehicle was searched. As I emphasized above, however, no reasonable officer will leave a suspect unrestrained in order to conduct a search. On the other hand, many suspects will return to their vehicles, and many vehicles will be left with passengers. The rule that the majority announces today will leave the officer exposed to danger in either of these circumstances. The statistics in Holt,
[18] This approach is also favored by Justice Scalia, who proposed it in a concurrence joined by Justice Ginsburg. Thornton,
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 a 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.
Id. Thus, Justice Scalia would allow a search of a vehicle following the arrest of its occupants "where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Id. at 632,
[19] The majority criticizes this rule by raising hypothetical questions about its scope and extent, as if any legal rule was ever beyond debate. In my opinion, this criticism is an application of the observation of Justice Rehnquist that "[o]ur entire profession is trained to attack `bright lines' the way hounds attack foxes." Robbins v. California,